C2004/3895, Transcript of Proceedings [2004] AIRCTrans 2164 (9 June 2004)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N 7300
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT ACTON

C2004/3895

APPEAL UNDER SECTION 45 OF THE ACT
BY UNITED FIREFIGHTERS' UNION OF
AUSTRALIA AGAINST THE DECISION BY
COMMISSIONER SIMMONDS ON 21 MAY
2004 IN C2004/2244 RE APPLICATION FOR
SETTLEMENT OF DISPUTE (CERTIFICATION
OF AGREEMENT)

MELBOURNE

2.41 PM, MONDAY, 31 MAY 2004

PN1

MR P. ROZEN: I seek leave to appear on behalf of the United Firefighters' Union.

PN2

MR P. WHEELAHAN: I seek leave to appear on behalf of the Metropolitan Fire and Emergency Services Board.

PN3

THE SENIOR DEPUTY PRESIDENT: Leave is granted in both instances. Mr Rozen?

PN4

MR ROZEN: Thank you, your Honour. Thank you for the time that was made available to the parties. Nothing particularly helpful emerged from it but it was worth a try, your Honour. Your Honour, can I hand up a brief outline of argument, together with three mercifully brief decisions that we rely on for today's purposes. Your Honour, the United Firefighters' Union seeks leave to appeal from a decision of Commissioner Simmonds, dated 21 May 2004, that the Commission has jurisdiction to hear an application made to it by the Metropolitan Fire and Emergency Services Board.

PN5

The appeal is brought pursuant to section 45(1)(g), challenging the decision by Commissioner Simmonds that the Commission has jurisdiction to hear the matter. The union also seeks a stay of the operation of the decision pursuant to subsection (4) of section 45 which in a practical sense means that what the union is seeking is a stay on Commissioner Simmonds' listing the matter for determination pending the determination by the Full Bench of the application for leave to appeal.

PN6

THE SENIOR DEPUTY PRESIDENT: Where is the Court proceedings?

PN7

MR ROZEN: The Court proceedings - I am able bring the Commission up to date on. There was a directions hearing before Marshall J, this morning, in respect of the Court proceedings. A number of things happened in that; the first of which was that the union filed an amended application in proceedings number V151/2004, and I hand a copy of that amended application to the Court. Your Honour will find the original application, dated 17 February 2004, behind tab 5 of the appeal book. Your Honour will see that the amended application contains an application pursuant to section 413A of the Workplace Relations Act, seeking an interpretation of clause 12.7 of the agreement. Specifically, at paragraph 7 of the amended document, seeks a declaration that on a proper interpretation of clause 12.7 a party to the agreement may refer a matter to the Federal Court of Australia for conciliation, mediation and, if necessary, for determination.

PN8

Further, that on a proper interpretation of the clause the applicant, that is the union, has referred this matter to the Court. And, under paragraph 9, that on a proper interpretation of clause 12.7 of the agreement, the Federal Court of Australia does not exercise a power of private arbitration when a matter is referred to it pursuant to clause 12.7. Now they are obviously matters which in due course will be determined by the Court.

PN9

The order that the Court made this morning in respect of the proceedings was that a mediation take place in the Court on or before 25 June 2004. So sometime in the next three weeks there is going to be a mediation in the Court in respect of these matters or the matters that are before the Court, and that there then be a further directions hearing on 30 July 2004 to consider, obviously, the further programming of the matter, if there is anything left after the mediation. So it is in that context that we seek a stay of the decision of Commissioner Simmonds.

PN10

THE SENIOR DEPUTY PRESIDENT: Sorry, can I just get those dates. When is the mediation?

PN11

MR ROZEN: The first order is that there be a mediation on or before 25 June 2004.

PN12

THE SENIOR DEPUTY PRESIDENT: I don't have that order, do I?

PN13

MR ROZEN: No, I don't think that order has been taken out, your Honour.

PN14

THE SENIOR DEPUTY PRESIDENT: Okay. What was that, again, first?

PN15

MR ROZEN: By 25 June 2004.

PN16

THE SENIOR DEPUTY PRESIDENT: Right. And is that a mediation in respect of all matters the subject of the application?

PN17

MR ROZEN: Yes.

PN18

THE SENIOR DEPUTY PRESIDENT: Including amended application?

PN19

MR ROZEN: Yes.

PN20

THE SENIOR DEPUTY PRESIDENT: Yes. Yes.

PN21

MR ROZEN: And that the matter has also been listed for a further directions hearing before the docket Judge on 30 July 2004.

PN22

THE SENIOR DEPUTY PRESIDENT: Yes.

PN23

MR ROZEN: Your Honour, the principles governing an application for a stay in a matter such as this are well settled. Firstly, an applicant for a stay must demonstrate an arguable case in respect of both the appeal itself and the grant of leave. And, secondly, the balance of convenience must favour the grant of a stay. If I can turn, firstly, to the question of whether there is an arguable case here. The first thing to be said is, a lot of energy has been expended by both sides in arguing the case, and whilst that doesn't necessarily demonstrate that there is an arguable case for the purposes of this test, it is not a bad start.

PN24

Your Honour, the appeal raises, for determination by the Full Bench, the proper construction of clause 12.7 of the certified agreement that binds the parties. Clause 12.7, as your Honour will probably have noticed from the papers, is part of the dispute and grievance procedure required by section 170LT, I think, (8), to be in the agreement before it can be certified by this Commission. And clause 12.7 is set out in paragraph 2 of the reasons for decision, by Commissioner Simmonds, which your Honour will find behind tab 2 of the appeal book. Clause 12.7 is step 5. Perhaps if I could hand up a spare copy of the entirety of clause 12, might be of some assistance.

PN25

THE SENIOR DEPUTY PRESIDENT: While you are at it, Mr Rozen, I will mark your outline of argument.

EXHIBIT #A1 OUTLINE OF ARGUMENT

EXHIBIT #A2 AMENDED APPLICATION

EXHIBIT #A3 EXTRACT OF THE DISPUTE RESOLUTION CLAUSE OF THE AGREEMENT

PN26

MR ROZEN: Thank you, your Honour. A3 is this last page that I have handed up. Your Honour will see that, firstly, the dispute resolution clause - if I can start at 12.1. The dispute resolution clause provides:

PN27

To ensure effective consultation between the employer, its employees and the union ...(reads)... for decision or determination of change...

PN28

And if I just pause there, for a moment, your Honour. Change is an expression that is specifically defined for purposes of the agreement. Not that that is of great consequence, now, but that is where that term comes from.

PN29

THE SENIOR DEPUTY PRESIDENT: It is defined in the agreement?

PN30

MR ROZEN: Defined in the agreement in clause 9, which deals with consultation and imposes an obligation to consult in the event of proposed change; and there is a definition of change for that purpose. Going back to clause 12.7, your Honour, that is the Commission's role is decision or determination of change. Then there appears a semi colon and it goes on;

PN31

Or other body or Court for conciliation/mediation and, if necessary, for determination. Any determination includes access to appeal.

PN32

Now, your Honour - I see your Honour smiling. The clause as drafted certainly opens up a range of possible meanings and interpretations. But we say one thing that is apparent, in terms of what the parties have agreed, is this; that the parties have agreed that there are to be - there is a range of venues or fora in which their disputes can be ultimately determined. The previous agreement, the 1999 agreement between the same parties, limited the final step in the disputes resolution procedure to the Commission's role, which is, as your Honour will be aware, a fairly standard clause to be included in a certified agreement.

PN33

The 1999 agreement, your Honour, is actually in the material behind tab - it is behind tab 12. And I don't need to take your Honour to it now I don't think, but the equivalent step 5 is clause 12.7 which your Honour will find on page 6 of the 1999 certified agreement.

PN34

THE SENIOR DEPUTY PRESIDENT: Right.

PN35

MR ROZEN: And it contained a standard refer to the Commission for conciliation and, if necessary, determination clause. And for completeness, your Honour, when the matter came on before Commissioner Simmonds for certification of the current agreement - and the transcript of that also appears this time behind tab 8 - on page 12 of the transcript, at paragraph 103, Mr - towards the bottom of the page, your Honour, Mr Bertolis, who was appearing for the employer board, addressed Commissioner Simmonds in respect of the new provision, the new 12.7, and he said this, and I quote:

PN36

Firstly, at clause 12.7 of the agreement that is part of the disputes resolution clause and there has ...(reads)... want to act in a particular position and it is...

PN37

And then, Commissioner Simmonds, who has long experience dealing with disputes between these parties, said:

PN38

I can't imagine why they would.

PN39

And that was the extent of the discussion about 12.7. What we say comes from that, your Honour, is that the parties made a deliberate decision, in clause 12.7 of the current agreement, to extend the range of locations in which their disputes could be determined. Now, the question of what - the nature of the powers that would be exercised by the different bodies identified, that is an agreed arbitrator, the Commission, a Court and even another body, they are all - that necessarily raises questions of some interest about what the nature of the powers is, whether they are all exercising powers of private arbitration in that context or not, and there some of those issues arise for determination in this appeal.

PN40

That is, where, as is the case here, a party refers a dispute to a body other than the Commission at a point in time, whether at a later point in time a dispute which is essentially the same, and I will explain why we say these two disputes are essentially the same, can be subsequently referred to another location; in this case the Commission. And the union's argument before Commissioner Simmonds is that in the circumstances of this case the matter, which is the term used in 12.7, has already been referred to the Court and is already being dealt with by the Court, and therefore that necessarily deprives this Commission of its jurisdiction.

PN41

We accept that the reverse is also the case, that if the matter has been referred here then the same matter can't be determined in another place. Now, your Honour, the board says, as we understand it, and said before Commissioner Simmonds, that the matter before the Federal Court and the matter before the Commission, that is the subject of this appeal, are not the same matters, not the same dispute.

PN42

THE SENIOR DEPUTY PRESIDENT: Sorry, can you repeat that.

PN43

MR ROZEN: The board's position, as we understand it, is that we fall at the first hurdle of my argument, essentially, that the matter that is before the Court and the matter that is in the Commission are different matters and that, therefore, the fact that the Court is dealing with our application does not deprive the Commission of jurisdiction to hear theirs. And one of the matters that the Full Bench - and that issue is squarely before the Full Bench on the appeal, we say. The - I will take your Honour to the dispute notification, firstly, and then I will take your Honour to the matter that is before the Court. The dispute notification can be found behind tab 4 of the Court book.

PN44

Unfortunately, your Honour, it is actually attached to one of the exhibits below, but your Honour will - if your Honour turns behind tab 4 the first thing your Honour will see is a letter from the board to Mr Marshall, dated 24 February 2004. That letter is a four page document, and immediately after it is another letter from the board to Mr Marshall, dated 11 March 2004.

PN45

THE SENIOR DEPUTY PRESIDENT: Yes.

PN46

MR ROZEN: That is two pages. There is then a letter from the union to the board, 15 March 2004, then a fax cover sheet, then a further letter dated 17 March 2004, from board to Mr Marshall, then immediately behind that your Honour will find form R47, rule 66, the dispute notification. I am holding my breath, your Honour.

PN47

THE SENIOR DEPUTY PRESIDENT: This is after the 17 March letter, is it?

PN48

MR ROZEN: After 17 March - - -

PN49

THE SENIOR DEPUTY PRESIDENT: Yes, I have got it.

PN50

MR ROZEN: That attaches the dispute notification.

PN51

THE SENIOR DEPUTY PRESIDENT: Yes.

PN52

MR ROZEN: I can breathe again. Your Honour, the dispute notification, after the formalities of identifying who the parties are and so on, about half way down the page, it reads:

PN53

The matters in dispute relate to...

PN54

And then the first is:

PN55

JFAIP State Co-ordinator...

PN56

And that acronym stands for Juvenile Fire Awareness and Intervention Program. And the dispute there is whether a person who was not an employee of the CFA was able to carry out that function for a period of time without that putting the MFB in breach of the agreement. The second dispute, number 2, Operational Support Group concerns employees who are partially fit for duties carrying out certain functions, and whether the - an alteration by the MFB to the way that part of its enterprise operates constitutes a breach of the agreement principally in relation to consultation.

PN57

The third issue is 2 Station, and involves some changes or proposed changes to practices concerning that particular station; once again the issue being whether proper consultation took place and whether or not there had been a breach of the agreement by the MFB in that regard. And the fourth concerns the skills maintenance program, an intention by the board to implement its program, whether it is able to do that without following the proper processes for the introduction of change in the agreement. Can we just leave that document for a moment, and I want to come back to it. But if I can ask your Honour to turn to the application that is before the Court, and in particular to the statement of claim - - -

PN58

THE SENIOR DEPUTY PRESIDENT: Where is that at?

PN59

MR ROZEN: Your Honour will find that behind tab - the application is behind tab 5 and the statement of claim is behind tab 6.

PN60

THE SENIOR DEPUTY PRESIDENT: Yes.

PN61

MR ROZEN: Before turning to the detail of it, your Honour, the application, at least before this morning, the application by the union to the Court was that, in respect of each of those four topics that I have just taken your Honour to, the MFB has breached the agreement in relation to its obligations to consult and introduce change, and so on. Yes. And further, that they - three of the four of those represent extra claims which are specifically prohibited under the agreement, as your Honour would imagine; I think under clause 49.

PN62

THE SENIOR DEPUTY PRESIDENT: Is that why they are breaches?

PN63

MR ROZEN: In part. It's partly because they are extra claims, it is partly because they haven't, we say, consulted as they were required to do in respect of the introduction of change, which is why I referred to change earlier, your Honour. Now the four breaches, or the four categories of breaches - because in relation to each of them there is more than - they are not all just one breach, some involve two or three alleged breaches of the agreement.

PN64

The four topics, your Honour, are the four same matters that are referred to in the board's notification to the Commission. The first, your Honour will find at paragraphs 7 to 27. It deals with the Juvenile Fire Awareness and Intervention Program. The second issue concerns the Operational Support Group, at paragraphs 28 to 45 of the statement of claim. The third concerns 2 station, which your Honour will see pleaded at paragraphs 46 to 60, and, finally, the fourth matter is the Skills Maintenance Program, which your Honour will find at paragraph 61 to 76.

PN65

Now, your Honour, we say that it is readily apparent, from an examination of the two documents, that the subject matter of the Federal Court proceedings and the notification pursuant to clause 12.7, to this Commission, are, for all intents and purposes, identical. We say that each - the dispute notification and the Federal Court proceeding deal with the same matter as that term is used in clause 12.7 of the agreement. So much so that in its dispute notification, in respect of each of the four topics, the board says to the Commission, we are not in breach of the agreement.

PN66

They are not detailed but they specifically say that in their dispute notification they are not in breach of the agreement; which, of course, is the very matter that the Court has been asked to determine. Your Honour, I said I would come back to the dispute notification, and I will ask your Honour to go back to that document, if your Honour is able to locate it again. It is behind tab 4, about halfway through immediately behind the letter dated 17 March.

[3.03pm]

PN67

THE SENIOR DEPUTY PRESIDENT: Yes, I have got it. Yes.

PN68

MR ROZEN: If you go to the second page of the dispute notification, your Honour, after the fourth specific matter that is referred to, there is a heading at the bottom of page 5, General, does your Honour see that?

PN69

THE SENIOR DEPUTY PRESIDENT: Yes.

PN70

MR ROZEN:

PN71

The notifier denies breaching or misapplying any of the provisions of the agreement as alleged by the respondent, or at all -

PN72

which of course is in the nature of a defence to the Federal Court proceedings. And then it goes on on the following page:

PN73

The above disputes raise questions as to the proper application of inter alia the following provisions of the agreement: clause 9, consultative process; clause 12, dispute resolution; and clause 49, no extra claims.

PN74

As referred to in the notifier's letter to the respondent dated 24 February 2004. Now we say, your Honour, that the proper application or the proper interpretation of each of those clauses necessarily arises in the Federal Court proceedings as well.

PN75

In respect of clauses 9 and 49, it arises because the union has pleaded breaches of those sections in respect of these four matters. So the Court must determine their proper meaning to determine the application about whether there is a breach. The question of clause 12 arises, if it didn't arise before today, it certainly arises by virtue of the amended application where the Court has been asked to interpret clause 12.7 and to give a ruling in relation to it.

PN76

So, it is for those reasons, your Honour, that we say there is no practical different, certainly in terms of the standard your Honour must apply of an arguable case. There is no practical difference between the subject matter of the Federal Court proceedings and the subject matter of the notification pursuant to section 170LW.

PN77

Your Honour, I have already referred the Commission to the deliberate choice in clause 12.7 of a choice of venues in which to determine disputes. Essentially, the argument on appeal, and the argument before Commissioner Simmonds is that once a party makes a referral of a matter to one of the venues identified in clause 12.7, it is not open to another party to refer the same matter to another venue.

PN78

Now that, of course, also arises for determination by the Federal Court. That same question is a matter that we now seek a determination on from the Court but what your Honour needs to be concerned with is whether that proposition is an arguable proposition for the purposes of the stay application. And we say that, from a plain reading of the section which uses the word "or" after the Commission's - after the Commissioner, its role is identified and if need be by reference to the earlier agreement and the comments made by the Board's representative of the certification hearing, it is at the very least arguable that the proper interpretation of clause 12.7 is that once it has gone to one venue, it can't go to another venue.

PN79

Now of course the "it" has to be the same matter for that proposition to hold true and it may be that it wouldn't be open to the parties to contrive a situation, for example, where a dispute was dressed up in a way to be a horse when in fact it is a cow. In other words, there must be true - - -

PN80

THE SENIOR DEPUTY PRESIDENT: They are always cows.

PN81

MR ROZEN: They are always cows, yes. The ones I back always are, your Honour, yes. Your Honour, the parties must be - sorry, the matters must be truly the same for this proposition to hold true and we say here that at the very least they are arguably the same. The implications of the approach taken by Commissioner Simmonds are not too difficult to imagine.

PN82

The logical conclusion to that approach is that wherever a party has referred its dispute, it is always open to the other party to take it somewhere else which can only lead, in our submission, to the potential for there to being a multiplicity of proceedings in relation to the same matter. Something that certainly the Courts and this Commission have, over the years, been at pains to try and avoid because, of course, it runs the risk of getting different decisions that conflict with each other and the potential for different evidentiary rules to be applied in respect of the adjudication of one particular matter. So we say for all those reasons, your Honour, there is an arguable case that the appeal will succeed.

PN83

THE SENIOR DEPUTY PRESIDENT: Can I just ask you about the clause. The matter, whatever it is, under 12.7 is going to be referred to the Commission for decision or determination of change, I guess arguably decision is different from determination of change?

PN84

MR ROZEN: Well, yes, arguably. I mean, the parties have chosen those words and - - -

PN85

THE SENIOR DEPUTY PRESIDENT: And is there any role for conciliation or mediation as seems to be for the body or Court?

PN86

MR ROZEN: The agreement seems to envisage that any such conciliation or mediation will take place in the Court and not in the Commission.

PN87

THE SENIOR DEPUTY PRESIDENT: Or other body?

PN88

MR ROZEN: Or other body, whatever that might mean.

PN89

THE SENIOR DEPUTY PRESIDENT: That is what you say, anyway.

PN90

MR ROZEN: Yes.

PN91

THE SENIOR DEPUTY PRESIDENT: Yes.

PN92

MR ROZEN: Yes. The previous agreement, as I pointed out to your Honour, had the Commission playing the dual roles of conciliation and determination.

PN93

THE SENIOR DEPUTY PRESIDENT: Yes.

PN94

MR ROZEN: But here there is an express - or the conciliation role has been removed, put it that way.

PN95

THE SENIOR DEPUTY PRESIDENT: So isn't that a different role for each body?

PN96

MR ROZEN: Yes, there is a different role for each body.

PN97

THE SENIOR DEPUTY PRESIDENT: So they might be the same matter but they have different roles, don't they?

PN98

MR ROZEN: Yes, yes. And once again, that is something that the parties should be taken to have done deliberately and it may be in respect of a given matter that the Federal Court is better suited to its resolution than the Commission, and presumably, that is why the parties have given themselves the option of going to different places. And this is a case in point because here, the dispute we say - and they don't seem to say anything different - is that they have breached the agreement in relation to these four matters and the only place that conclusively determine whether or not it has been agreed - of an agreement, this is, of course, the Federal Court as one is often told in this Commission when one raises such a matter that any breach proceedings can be taken there.

PN99

But another dispute that has got nothing to do with an allegation of breach, may well be properly proceeded with in the Commission. It is horses for courses or cows for courses.

PN100

THE SENIOR DEPUTY PRESIDENT: So you say in respect of the one matter, well in respect of your matters, you could either come to the Commission for decision or determination of change or you could go to the Court or another body for conciliation and mediation and, if necessary, determination?

PN101

MR ROZEN: Yes, your Honour. There is a possibility for conciliation to take place in the Commission by agreement in respect of a matter referred under clause 12.7. It might be some private conciliation in effect.

PN102

THE SENIOR DEPUTY PRESIDENT: Yes.

PN103

MR ROZEN: But it is not conciliation that would be occurring - - -

PN104

THE SENIOR DEPUTY PRESIDENT: In accordance with the clause.

PN105

MR ROZEN: - - - under clause 12.7.

PN106

THE SENIOR DEPUTY PRESIDENT: Yes, yes.

PN107

MR ROZEN: I mean, for what it is worth, I have been involved in a number of disputes for the union that have come to the Commission under 12.7 where conciliation has taken place.

PN108

THE SENIOR DEPUTY PRESIDENT: Yes.

PN109

MR ROZEN: But if one had to characterise the source of the power of the conciliation, it wouldn't be coming from clause 12.7. Where everyone is in agreement, it probably doesn't matter.

PN110

THE SENIOR DEPUTY PRESIDENT: And do you see clause 12.7 in terms of the words decision or determination of change associated with the Commission and determination, not necessarily of change it would seem for the body or other Court, as leading the Commission on one hand and the other body or Court on the other to deal with different things?

PN111

MR ROZEN: I can answer that question this way, your Honour: as just leaving it to the determination question so that the Commission has a role determining the determination of change.

PN112

THE SENIOR DEPUTY PRESIDENT: Yes.

PN113

MR ROZEN: And the Court has a role of determination, what would be clear is that the binding effect of the outcome of the proceedings would be different. So the binding effect of the Court's outcome would be by virtue of it exercising judicial power and everything that flows from that whereas the binding - whereas the Commission is exercising the power of private arbitration when it, as your Honour knows, when it deals with the conferral of power under a clause such as clause 12.7.

PN114

THE SENIOR DEPUTY PRESIDENT: Yes.

PN115

MR ROZEN: I may have avoided your Honour's question without really intending to. There is probably very little difference in terms of what the determination - what that means. It means an answer to the question but it is legal effect would differ.

PN116

THE SENIOR DEPUTY PRESIDENT: Yes, okay.

PN117

MR ROZEN: Your Honour, if I could turn to the question of leave because the authorities indicate there need to be an arguable case in respect of leave as well. There are four grounds set out in the notice of appeal which your Honour will find behind tab 1 why we say that in the public interest, leave ought to be granted by the Full Bench. The first is that the appeal raises the question of a proper interpretation of the dispute and grievance procedure in clause 12 and we say that is of some significance in the context of an emergency services agency such as the respondent and a union representing its employees.

PN118

I think it is probably, your Honour can take judicial notice that the parties are often in disagreement about various matters and are often seeking to have those disputes resolved pursuant to clause 12. In other words, it doesn't raise an academic question of little practical interest to the parties. I think - - -

PN119

THE SENIOR DEPUTY PRESIDENT: I congratulate them, then, on developing a disputes resolution clause which didn't lead to any argument.

PN120

MR ROZEN: Yes, well, I think Commissioner Simmonds may have had that history in mind when he rhetorically asked why anyone would want to play a role of being an arbitrator being the parties.

PN121

Your Honour, the appeal also concerns the jurisdiction of the Commission and the proper interpretation of section LW of the Act particularly insofar as it concerns what is the nature of the Court's role in a clause such as clause 12.7 and we say that that is a matter of some significance. There are also other disputes between the parties which I am instructed are in the pipeline. There are several matters that have been provisionally listed for Friday 4 June that have been referred - they are before Commissioner Simmonds - that have been referred by the Board under this same disputes resolution procedure.

PN122

And finally, your Honour, and I am unaware of how common it is to find a clause such as 12.7 in agreements which confers a role on bodies other than the Commission, that is, a disputes resolution clause on bodies other than the Commission in addition to the Commission's role but the issues in this case will necessary have an impact on any agreement which - which contains such a clause. I don't know maybe your Honour has seen such clauses, maybe parties would be best to avoid including them in their agreements, I don't know, but to the extent that they are out there, then they are affected by this decision and that, we say, is a matter of public interest.

PN123

Finally, your Honour, to the question of the balance of convenience, there is a number of decisions that have been decided presidential members of this Commission concerning what I might call jurisdictional appeals and in each of them there is an observation with various degrees of emphasis that where an appeal raises an arguable case about jurisdiction, then the balance of convenience favours a stay so that the parties are not caught up in proceedings which ultimately a Full Bench might conclude should never have taken place. And I don't think, your Honour, that there is anything particularly controversial about that observation.

PN124

There are three decisions which I would just like to take your Honour briefly to that were attached to the outline. The first is a decision of Senior Deputy President Marsh in a matter of Honeywell Limited Print P5088, a decision of 15 September 1997. This was an appeal from a jurisdictional determination in an unfair dismissal matter where Deputy President Drake at first instance had found that an applicant was a Federal Award employee and that therefore the Commission had jurisdiction to hear her application. I think it was her application.

PN125

There was an appeal from that jurisdictional decision and as part of the appeal, the employer - the respondent employer sought the granting of a stay until further order. At page 2 of the judgment and on transcript Senior Deputy President Marsh, halfway down the page, set out the settled principles governing stay orders and then three-quarters down the page - does your Honour see the paragraph commencing, in weighing?

PN126

THE SENIOR DEPUTY PRESIDENT: Yes.

PN127

MR ROZEN: Her Honour said:

PN128

In weighing the test of balance of convenience, the test is strongly in favour of the respondent. If a stay order is not issued and the matter proceeds to conciliation and possibly arbitration, the time and effort of both parties is wasted in the event the Full Bench upholds the appeal on jurisdiction grounds.

PN129

Similarly, your Honour, in the second of the decisions I have handed up, a decision of Senior Deputy President Polites in a matter of AFC Abattoirs Pty Limited Print P0605, 5 May 1997. His Honour was dealing with a jurisdictional appeal from a decision from Commissioner Dempsey and on page 2 of the decision in the second complete paragraph, his Honour said:

PN130

In relation to the balance of convenience, it has been put by Mr Murdoch for the appellant that to allow the Commissioner to pursue the course he announced on the transcript would be disruptive. Whether that be so or not, I consider that where there is a reasonable doubt as to lack of jurisdiction, the balance of convenience in ordinary circumstances would favour not proceeding until that doubt is resolved.

PN131

And finally, your Honour, Deputy President Watson in a decision of Skywest Aviation Pty Limited reported at 38 IR 78, was dealing with an appeal arising from a decision about a - the setting up of a Grievance Board, in fact not all that dissimilar to what we have here, the processing of a grievance, there was an argument about whether or not the Grievance Board had been properly established and on page 79, the second page of his Honour's decision about halfway down that page his Honour found the balance of convenience lay in favour of the granting of a stay:

PN132

In my view it would be unproductive for the Grievance Board procedures to have effect in advance of the finalisation of the appeal, given the issues raised on appeal.

PN133

Your Honour, we say that in accordance with those - with the application of that principle and those three decisions, if Commission Simmonds was to proceed to hear the section 170LW notification, the parties are going to be put to some inconvenience and expense in circumstances where, if the union ultimately prevails in its argument about jurisdiction, then the matter should not be proceeding before Commissioner Simmonds either in whole or in part.

PN134

And there is an additional reason here, your Honour, why the stay should be granted and in the unusual circumstances of this case, on our view all of the matters in dispute between the parties are going to be the subject of the Federal Court proceedings come what may. There is no application, as we understand it, by the respondent to stop the Federal Court proceedings and in fact, in accordance with his Honour's orders from this morning, we are all going to be sitting in a room sometime between now and 25 July - or 24 July, I think it is, engaged in a mediation of the four matters that are common to both applications. So that is a further reason, your Honour, why we say it would be inappropriate for Commissioner Simmonds to proceed with this matter.

PN135

And finally, your Honour, Commissioner Simmonds himself seemed to be cognisant of these matters when the matter was last before him which was on Friday 21 May 2004. The transcript from that day is not included in the court book but can I hand up to your Honour the transcript from 24 May[sic], or is it?

PN136

THE SENIOR DEPUTY PRESIDENT: Yes.

PN137

MR ROZEN: Your Honour, the matter was called on by Commissioner Simmonds who had reserved his decision in respect of jurisdiction but there had been some correspondence between the parties and ultimately his Honour called it back on but only to announce that he had reached a concluded view about the question of jurisdiction and if I can take your Honour to the, I think it is the fifth page of the transcript that I have just handed up. The paragraph number 1195, does your Honour have that? It is the second last page of the document that I have just - - -

PN138

THE SENIOR DEPUTY PRESIDENT: 1195 is it?

PN139

MR ROZEN: 1195. Commissioner Simmonds said this:

PN140

Can I just say that I have reached a concluded - what I thought was a concluded position, prior to receiving any of the correspondence. There is nothing today that really alters my position. I will be in a position to publish my decisions later today. My decision is the Commission does have jurisdiction to deal with this matter.

PN141

And then his Honour went on at paragraph 1196:

PN142

It remains, I think, for us too in those circumstances to have some discussions about further proceedings. That is, of course, without prejudice to the rights of the parties in respect of appeal and I don't in any way in discussing further proceedings intend to intrude upon their rights and it will be the UFUs rights in that matter. But I think as a matter of convenience, it is appropriate now that we are all here to talk about what we are going to do.

PN143

So we don't attach great weight to that, your Honour, but we do point it out that Commissioner Simmonds was cognisant of the likelihood of an appear, it would seem, and not wanting to jeopardise the parties pursuit of that appeal. If your Honour would just excuse me a moment.

PN144

So unless there are any other questions that your Honour may have about the meaning of words in the agreement or anything else, they are our submissions as to why a stay should be granted.

PN145

THE SENIOR DEPUTY PRESIDENT: So I should grant a stay so the Full Bench can deal with the matter and the Full Bench arguably on your case be dealing with the same matter the Court is going to be dealing with.

PN146

MR ROZEN: Well the Full Bench - the Full Bench won't be dealing with the merits, your Honour.

PN147

THE SENIOR DEPUTY PRESIDENT: No.

PN148

MR ROZEN: They will only be dealing with the question of whether the Commission constituted by Commissioner Simmonds has jurisdiction to deal with that matter. Now it may be that even if the Full Bench was against us on that and they determined that Commissioner Simmonds had jurisdiction to deal with that matter, whether in light of what has happened in the Court in the meantime, Commissioner Simmonds should exercise that jurisdiction or should exercise it now may be the subject of further submissions at some later date. But all that the Full Bench would be deciding is whether Commissioner Simmonds erred in concluding that he has jurisdiction to deal with it.

PN149

THE SENIOR DEPUTY PRESIDENT: But that is - - -

PN150

MR ROZEN: There is a lot - - -

PN151

THE SENIOR DEPUTY PRESIDENT: But in essence, on your argument, the Full Bench is dealing with the same question you have put now to the Court. Because to decide whether he has erred, we have to come to a view about 12.7, do we not?

PN152

MR ROZEN: Well, yes, your Honour, you do. I hesitate to answer that question because Commissioner Simmonds, if one examines Commissioner Simmonds' decision, he proceeded on the assumption that the Court - I don't want to overstate it, but he seemed to accept that the Court could play a role under clause 12.7. If I take your Honour to Commissioner Simmonds decision, paragraph 9, does your Honour have that on page 7 of the reasons for decision? Commissioner Simmonds concluded that there was nothing expressly in clause 12.7 which said that if the matter had been referred to the Court the Commission didn't have jurisdiction. And then paragraph 9, Commissioner Simmonds said this:

PN153

In view of my conclusions it is not necessary to cite the other matters advanced by the parties whether the Federal Court has jurisdiction to deal with the matters in dispute is not a matter for me to decide. It may be that in exercising its jurisdiction it will effectively resolve the matters in dispute. However, that does not detract from the Commission's jurisdiction.

PN154

So Commissioner Simmonds proceeded wrongly, we say, on the basis that even if the matter was properly before the Court, the Commission had jurisdiction to deal with it as well.

PN155

THE SENIOR DEPUTY PRESIDENT: You don't see that paragraph as referring to timing? You gets there first?

PN156

MR ROZEN: Well, it may. It is not entirely clear, your Honour, in my submission. I mean, we say timing is of significance.

PN157

THE SENIOR DEPUTY PRESIDENT: And if the matter goes to the Court on - it is not down for directions until the end of July.

PN158

MR ROZEN: Yes.

PN159

THE SENIOR DEPUTY PRESIDENT: So hearing is - - -

PN160

MR ROZEN: It is likely to be some time off.

PN161

THE SENIOR DEPUTY PRESIDENT: Yes.

PN162

MR ROZEN: Yes. But having said that, your Honour, so far as the union is concerned, there is no - as I am instructed, there is no particular urgency about any of these matters and there is certainly material, evidentiary material that has been placed before the Commission to state that these are of any great urgency.

PN163

THE SENIOR DEPUTY PRESIDENT: Yes.

PN164

MR ROZEN: Perhaps I could also add, your Honour, that as I am instructed, the union's position before the Court this morning was that it wanted more detailed directions in terms of the programming of the matter. And the respondent's position was that they wanted the Court proceedings adjourned pending the outcome of what happens in the Commission. So we have, all along, been keen and on the previous directions hearing, we were keen to have the Federal Court proceedings proceed as swiftly as they can.

PN165

THE SENIOR DEPUTY PRESIDENT: Yes. Okay.

PN166

MR ROZEN: Thank you, your Honour.

PN167

THE SENIOR DEPUTY PRESIDENT: Mr Wheelahan.

PN168

MR WHEELAHAN: Thank you, your Honour. I have prepared some written submissions which I have already given to Mr Rozen. If I hand them up for one case.

PN169

THE SENIOR DEPUTY PRESIDENT: Just before you get there, Mr Wheelahan, I will mark the transcript that Mr Rozen handed up.

EXHIBIT #A4 TRANSCRIPT OF PROCEEDINGS BEFORE THE COMMISSION DATED 21 MAY 2004

PN170

MR WHEELAHAN: Your Honour, I just want to emphasise that I have correctly understood Mr Rozen's submission that this matter is the same as the matter in the Federal Court and he is strongly putting to you that that is one of the reasons why the Commission should not proceed with these 170LW matters. Is that your Honour's understanding of what Mr Rozen submits as well?

PN171

THE SENIOR DEPUTY PRESIDENT: I must say I thought he was saying, in essence because the outcome may be the same.

PN172

MR WHEELAHAN: Correct. My note said, he said: it has to be the same matter for the UFUs case to succeed. What I will be putting to you that, plainly on its face, it is not and the proposition put by the UFU is untenable. I want to hand to you a decision of Heerey J in the same Federal Court matter that my friend has referred you to and I will take you back to the original pleadings behind tab 6 of the court book, the original pleadings in the Federal Court matter, that is.

PN173

THE SENIOR DEPUTY PRESIDENT: Hang on. Tab 6?

PN174

MR WHEELAHAN: Yes.

PN175

THE SENIOR DEPUTY PRESIDENT: Yes.

PN176

MR WHEELAHAN: You will see there the statement of claim and what is most important is paragraph 81 of that statement of claim as originally pleaded.

PN177

THE SENIOR DEPUTY PRESIDENT: Let me turn it up. Yes.

PN178

MR WHEELAHAN: You will see there paragraph 81:

PN179

Pursuant to clause 12.5 of the agreement, the UFU has, by commencing these proceedings, referred the matters the subject to the dispute referred to in the statement of claim to the Federal Court for mediation and determination.

PN180

So the original purpose as pleaded at those proceedings was that it was a referral under clause 12.7.

PN181

THE SENIOR DEPUTY PRESIDENT: It actually says 12.5, doesn't it?

PN182

MR WHEELAHAN: Sorry, it said 12.5 and it was amended to 12.7 in error.

PN183

THE SENIOR DEPUTY PRESIDENT: Okay, yes.

PN184

MR WHEELAHAN: That seems to accord with the position today put by Mr Rozen to you once again. I want to now take you to the decision of Heerey J because he noted that the UFU, the submissions put on the UFU seemed to retreat when it didn't suit them at the notice of motion when a motion was brought on behalf of the MFESB to have those paragraphs struck out. As your Honour will note the clause in the agreement you have already been taken to, refers to a Court, not a Federal Court.

PN185

THE SENIOR DEPUTY PRESIDENT: Yes.

PN186

MR WHEELAHAN: It is trite law that the Commission exercises a different function as recognised by Commissioner Simmonds which is an arbitral function and the Court can only - the Federal Court can only exercise judicial powers, because it is a constitutional court that it - conferred upon it under statute or chapter 3 of the Constitution.

PN187

Now if I take you to Heerey Js decision, the application was successful for those paragraphs of the amended statement of claim to be struck out. Paragraph 8 you will see:

PN188

I was told at the hearing before the Industrial Commission last month -

PN189

and this also goes to my surprise that the submissions that the parties who are keen to have the matters move on -

PN190

...when the respondent sought to bring the disputes mentioned in the statement of claim and other disputes before the Commission. The objection was taken on behalf of the applicant that these matters were before the Federal Court.

PN191

And I will just read without having to go to it, your Honour, at page 5 of Commissioner Simmonds decision, he says that it was submitted by the UFU before him:

PN192

...that the agreement also included the possibility that the parties referring the dispute to a court. It is a matter of choice. The UFU has chosen the court and that choice deprives the Commission of jurisdiction.

PN193

That was the submission made by the UFU to Commissioner Simmonds. He - the matter was then taken up at the Federal Court for those provisions to be struck out.

PN194

You will see there that Heerey J notes that that seemed to be the essence of the submissions made at the - before the Commission and he was taken to transcript references. But at paragraph 12, importantly, and critical for today, again, the line there, he says:

PN195

It is not disputed that there is jurisdiction in the Court to deal with allegations that the agreement has been breached and to impose penalties.

[3.36pm]

PN196

We do not dispute that there is an entitlement to bring proceedings under section 178; of course they can. However, the justification for those paragraphs, contrary to the flavour of submissions put to Commissioner Simmonds as noted by Heerey J, there was a retreat by their counsel and it was now being said to him that these were all relevant to the quantum and the penalty to be imposed, and that was the purpose of these paragraphs. The fact is, on its face, these proceedings are different. The subject matter - and I remind you, Mr Rozen has said it must be the same matter for the UFUs case to succeed.

PN197

I will take you to a number of matters why it is not the same. Number five, the general provision you were taken to in the LW notice, there is additional grievance about the general application of the dispute. The topics are the same as in terms of programs but this dispute is wider. The matter before the Federal Court is breach proceedings 178. It can only deal with past conduct, it is not dealing with future conduct. The amendment - - -

PN198

THE SENIOR DEPUTY PRESIDENT: Can I just ask you on that - - -

PN199

MR WHEELAHAN: Yes.

PN200

THE SENIOR DEPUTY PRESIDENT: The proceedings in the Court, does the claim state what section they are pursuant to or whether they are - - -

PN201

MR WHEELAHAN: Yes, it does. If I take you to the amended application which is A2, the application is made under sections 178 and 356 - - -

PN202

THE SENIOR DEPUTY PRESIDENT: Yes.

PN203

MR WHEELAHAN: - - - and 413A with the recent amendment this morning; again, further expanding the different judicial nature of these proceedings. It is certainly not a matter brought under section 170LW being a dispute over the application of the agreement which is the MFBs application.

PN204

THE SENIOR DEPUTY PRESIDENT: Yes, okay.

PN205

MR WHEELAHAN: I also adopt, your Honour, your comments in relation to the different role. Even when one looks at the clause in itself anyway, that the Commission can have matters referred to it for decision or determination of change, whereas other body or Court - it doesn't even necessarily say the Federal Court - is for conciliation, mediation, and if necessary, for determination. So, on its face, the roles are different. The, or, on its face, is not an exclusionary term because, as your Honour has noted, the role to be performed is different.

PN206

THE SENIOR DEPUTY PRESIDENT: The determination is problematic, is it not?

PN207

MR WHEELAHAN: The entire clause is problematic, your Honour. But what one has to look at, does the Industrial Commission have jurisdiction to hear the matters brought before it properly under section 170LW. The thrust of my friend's submission, on this occasion, seem to be that if the same matter is before the Federal Court there should be a stay and we should have these interpretation issues, which we have now amended this morning by filing an amended application - and that is another reason for staying the matters before the Commission.

PN208

Paragraph 4(c) of my submissions, you will see, as I say, the doctrine of res judicata - and I have spelt it incorrectly with my computer again - cannot apply in this case because we are exercising different functions; Federal Court only exercises judicial functions. Your Honour should carefully read the decision of Heerey J and read it in context of the retreat being made on that occasion by the UFU and note at paragraph 10 he has quoted what I took you to in the decision of Gould v Brown where it is quoted at paragraph 10:

PN209

It is said all constitutional doctrine of the provisions of chapter 3, particularly 71, prevent the Commonwealth from conferring any power other than judicial power.

PN210

And it goes on. Paragraph 11:

PN211

If Parliament cannot do this it is still less than the private parties.

PN212

It is just untenable to describe the function, the role and the matters as the same because they are not. In my submission, this case is not arguable, it is untenable before the Full Bench. Even if we take it as wrong, even if we take the position of the UFU at its highest and say that it is an exclusionary term which was the basis - you will see at paragraph - sorry page 5 of Commissioner Simmonds' decision where he notes the UFUs position - it is an either or. As in we got in first to the Federal Court therefore you can't come to the Commission.

PN213

Even if that is right, as Commissioner Simmonds has adopted, the submission the doctrine of res judicata, cannot apply to this situation. The fact that they are different functions, judicial; arbitral, the matters are not the same. It doesn't deprive the Commission of exercising its arbitral powers conferred upon it by the 170LW application. If there was any doubt about - you will see in the grounds of appeal the notice and there is only two grounds put in. The first ground, just asserting that Commissioner Simmonds was wrong to deal with the matter, and secondly, that he was wrong in concluding that - refer the matter to a Court. The other party to the agreement could refer the same matter.

PN214

The amendment this morning is further proof and amendments to application do not require the leave of his Honour. I am in paragraph 8 of the submissions handed by Mr Rozen and it refers to - Marshall J allowed an amendment, no doubt drafted prior to this morning's directions hearing. Amendments to the application can be filed as of right. There is no leave or no approval required by his Honour. The matter has become a different proceeding.

PN215

And one has to remember that the purpose here - we have industrial disputes which the MFESB wishes to proceed forthwith to conciliation and I want to take your Honour to a passage of the transcript where Mr Bant appears to - it is behind tab 3 of the court book - the appeal book, I should say.

PN216

THE SENIOR DEPUTY PRESIDENT: Sorry, which tab?

PN217

MR WHEELAHAN: Tab 3.

PN218

THE SENIOR DEPUTY PRESIDENT: Yes.

PN219

MR WHEELAHAN: And it is paragraph 1097.

PN220

THE SENIOR DEPUTY PRESIDENT: 1097.

PN221

MR WHEELAHAN: 1097.

PN222

THE SENIOR DEPUTY PRESIDENT: Yes.

PN223

MR WHEELAHAN: And this is an alternative argument put on behalf of the MFESB. If your Honour is minded to not allow Commissioner Simmonds to proceed and determine the matter, that he should at least be allowed to proceed to conciliate the matter. So the situation would be a partial stay. I have explained it in paragraph 14 that that would be on a basis of an expedited hearing. As your Honour noted, the directions this morning before the Federal Court would not - if the fuller directions were made we would not be seeing any resolution of the matter until some, approximately, October, from memory, so it is some months off.

PN224

The MFESB is seeking that if the appeal - is there is to be a partial stay that be on the basis that the appeal be expedited - only a partial stay so Commissioner Simmonds can proceed to conciliate that matter. Now, I put in there, and there will be some dispute about what that means, but you will see there that Mr Bant, on behalf of the UFU, said that he had instructions to conciliate/mediation but reserving his rights on the appeal. The position of the MFB is that it will undertake not to take that as a point against the UFU on the appeal if the matter does go to conciliation before Commissioner Simmonds, yet a stay on him determining the matter, until pending the appeal.

PN225

THE SENIOR DEPUTY PRESIDENT: Okay, so, what you are putting is as an alternative that Commissioner Simmonds be allowed to proceed via conciliation but not through determination?

PN226

MR WHEELAHAN: Correct. And the MFESB undertakes on the appeal not to use the fact that Commissioner Simmonds has conciliated the matter as by any means having the MFESB accepting that the Commission has jurisdiction.

PN227

THE SENIOR DEPUTY PRESIDENT: Yes.

PN228

MR WHEELAHAN: And that will allow some progression of the matters and there can be no prejudice then because Commissioner Simmonds may in fact resolve the LW disputes. And as was put to you, which I wasn't aware until just before, I knew that four other matters had been filed late last week - four other LW disputes. A letter from Slater and Gordon ask that those matters also not be listed pending this matter and from the bar table it would seem that those matters have now been listed for 5 June. Now, on 5 June if those matters before Commissioner - 4 June - were joined with these LW disputes then all eight of them can proceed to conciliation.

PN229

THE SENIOR DEPUTY PRESIDENT: Well, does it assist the parties if I can tell them when the appeal is likely to be?

PN230

MR WHEELAHAN: Yes, your Honour.

PN231

THE SENIOR DEPUTY PRESIDENT: 20 July. Six weeks hence, I guess. Is the employer prepared to adopt a position whereby it won't press determination pending the hearing of the determination of the appeal?

PN232

MR WHEELAHAN: If there is an order for the matter to proceed through conciliation in good faith by both parties. I will get instructions. You see my position, your Honour, that if I accept that and we turn up to conciliation and by default there is a stay anyway - - -

PN233

THE SENIOR DEPUTY PRESIDENT: You see, it seems to me that you could well lodge a section 99 on some of the matters, in any instance in which the Commission would normally exercise conciliation powers.

PN234

MR WHEELAHAN: Could I have a moment to get instructions, your Honour from - because I wasn't aware of the - - -

PN235

THE SENIOR DEPUTY PRESIDENT: Yes, I might adjourn briefly so you can both seek instructions in respect of that point.

PN236

MR WHEELAHAN: Yes, because I wasn't aware of the hearing date.

PN237

THE SENIOR DEPUTY PRESIDENT: And I put it to you on this basis - and I - you know, I don't know what arguments you might raise. But, say I was to stay it, just assuming that, then presumably you could lodge a section 99 notification which would in normal course be listed before the Member. I guess the UFU may argue, well, you shouldn't actually hear this because it is the same matter that is being stayed, but, you know, I don't know, whether that would be persuasive to an individual member or not, I don't know. So you might consider it in light of that, but I will adjourn briefly so you can both seek instructions on that.

PN238

MR WHEELAHAN: Thank you, your Honour.

SHORT ADJOURNMENT [3.49pm]

RESUMED [4.07pm]

PN239

MR WHEELAHAN: Thank you, your Honour. Nothing was resolved and we thank you for the short time and I will proceed to the balance of convenience.

PN240

MR ROZEN: Just before my learned friend goes on, can I just indicate, your Honour, I also had the opportunity to take some instructions and we wouldn't be - this might not be academic, I suppose - but we wouldn't be opposed to proceeding on the basis that there be a stay, but that Commissioner Simmonds be able to conciliate the matter.

PN241

THE SENIOR DEPUTY PRESIDENT: Yes.

PN242

MR WHEELAHAN: Your Honour, that position is only put as an alternative argument as noted on behalf of my client. I handed to your Honour, one decision which is a decision of this Full Bench of 17 December 1998 in Aardvark - A-a-r-d-v-a-r-k Security Services Pty Ltd and - - -

PN243

THE SENIOR DEPUTY PRESIDENT: Yes.

PN244

MR WHEELAHAN: - - - the two passages I want to take your Honour to just briefly are on the top of page 2; it just sets out the general principles. More particularly, on the top of page 3, the adoption by the Full Bench of the longstanding principle that a successful litigant is entitled to the fruits of the litigation pending the determination of the appeal. It is submitted that there is no real prejudice to the UFU by Commissioner Simmonds proceeding with these 170LW disputes. These are not matters such as where there has been an order for payment to a person who has been unfairly dismissed where there might be a prospect of those moneys not being paid back and so forth.

PN245

These are industrial disputes, essentially, over the application of the agreement. In my submission, it cannot be properly said that the - it will render any - result of the appeal, nugatory. There are no special circumstances put by Mr Rozen that justify departure from this ordinary rule that the successful litigant is entitled to the fruits of the litigation pending the appeal. If your Honour pleases.

PN246

THE SENIOR DEPUTY PRESIDENT: Yes?

PN247

MR ROZEN: Your Honour, just a couple of matters briefly in reply. Your Honour, dealing firstly with the ordinary rule question, in my submission, if there is an ordinary rule in respect of appeals arising on questions of jurisdiction, it is the rule as set out in the three decisions that I have referred your Honour to. The fruits of litigation rule is ordinarily applied in circumstances where there has been an award in favour of a party, or a decision on the merits, in favour of a party, that they are entitled to enjoy pending the determination of any appeal in circumstances where a preliminary point such as jurisdiction has been taken.

PN248

The ordinary rule, so far as balance of convenience is concerned, is the other way, that is, ordinarily, provided that an arguable case is - that the arguable case requirement is satisfied, that a stay would be applied. And in terms of prejudice, your Honour, it is not correct that there would be no prejudice flowing to the UFU from the determination of this matter pending the appeal being heard and determined by the Full Bench. Part of the UFUs case on the merits, if you like, of the disputes is that three of them, as pleaded in the Federal Court proceedings, represent extra claims.

PN249

And that has a particular consequence under clause 49 of the agreement which is that the Commission's dispute resolution powers under clause 12.7 do not apply where a matter is found to be an extra claim. And what that means in a practical sense here is that the union would need to prepare material and be in a position to argue that, the three of the four matters that we say are extra claims, are in fact extra claims. And I am instructed that that would involve delving back into the negotiations and how it is said that these matters are claims over and above what had been the subject of the negotiations prior to agreement being reached in 2002.

PN250

So there is a significant practical prejudice that would arise in the event that this matter had to be the subject of proceedings before Commissioner Simmonds in advance of the appeal being determined. And further, of course, your Honour, there is the prospect of the mediation taking place in the Federal Court proceedings which we approach in good faith, your Honour, and may, who knows, result in a resolution of part or all of the matters that are in dispute.

PN251

THE SENIOR DEPUTY PRESIDENT: Mr Rozen, is the matter before - the matter before the Court - or the matters before the Court, are they before the Court pursuant to 12.7 of the agreement?

PN252

MR ROZEN: They are - yes, they are before the Court pursuant to 12.7 of the agreement but, your Honour, the Court doesn't derive any power - unlike the Commission which derives a power of private arbitration from clause 12.7 and section 170LW of the Workplace Relations Act, the Court can only exercise judicial powers in a matter that is before it. So it derives its powers not from the agreement and this, in my submission, is where there was a degree of confusion on the part of Heerey J and no doubt it was confusion of my making as I was making the submissions before him.

PN253

But there is two separate questions. One is the source of power the Court may exercise in a matter and the other is whether the matter has been referred to it pursuant to clause 12.7.

PN254

THE SENIOR DEPUTY PRESIDENT: Well, does that mean 12.7, in your submission, reads:

PN255

Refer directly to the Commission for private arbitration or to another body or Court for breach.

PN256

MR ROZEN: No, it is to another body or Court for conciliation, mediation, and if necessary, for determination. But - and this is the important, but - the parties take that other body or Court as they find it. In other words, they can't purport by agreement to confer powers on a Court. What they have done is identify existing - they haven't specified it - but they have identified a Court as being the place where they can take their grievances but they are stuck with whatever powers that Court and procedures that Court has, and in this case, we are talking about the Federal Court.

PN257

The parties cannot confer any power by agreement on the Court. No-one suggest that they have done that.

PN258

THE SENIOR DEPUTY PRESIDENT: Well, can the Court do a determination?

PN259

MR ROZEN: Well, it depends what that term means, your Honour. The Court can grant declarations, it can grant injunctions, it can impose penalties, it can grant the parties the normal judicial relief; that is all it can do.

PN260

THE SENIOR DEPUTY PRESIDENT: So it reads:

PN261

...to the Commission for private arbitration...

PN262

Doesn't it?

PN263

MR ROZEN: In effect, yes.

PN264

THE SENIOR DEPUTY PRESIDENT: Or other body or Court, and if that other body or Court is the Federal Court, for declaration, injunction, breach, you say?

PN265

MR ROZEN: Breach proceedings. And if that other body is - because I don't know what that other body might be, but for argument sake, if it is the Victorian Civil and Administrative Tribunal, then the parties accept that as it is with its powers, including different sort of conciliation and mediation processes, to those that the Court may have.

PN266

THE SENIOR DEPUTY PRESIDENT: Yes.

PN267

MR ROZEN: That is the only way to make sense of clause 12.7, in my submission.

PN268

THE SENIOR DEPUTY PRESIDENT: And are you going to make an MD application?

PN269

MR ROZEN: Is that for variation?

PN270

THE SENIOR DEPUTY PRESIDENT: Yes, for ambiguity or uncertainty.

PN271

MR ROZEN: Well, I would have to seek instructions on that, your Honour, but - I mean, if the point your Honour is making is that clause 12.7 and its drafting is somewhat unsatisfactory, then that is one thing I would join with my learned friend on on agreeing, that there is some difficulties with the clause. But the parties have reached an agreement that has been certified by the Commission in which it is abundantly clear that there is a choice of venues. Now, as I said at the start, quite what their powers are, is a matter that is somewhat uncertain.

PN272

But, so far as the Federal Court is concerned, the UFU accepts that any role it can play in respect of clause 12.7 is limited to the exercise by it of its statutory and/or constitutional powers. Just one other matter in reply - sorry, two other matters. In relation to the decision of Heerey J, his Honour was dealing with a pleadings argument, essentially, and his Honour concluded at paragraph 13 that the paragraphs that were the subject of the notice of motion - the strike out application - paragraphs 77 to 81, could only give rise to confusion and did not serve any useful purpose and it was on that basis that he struck them out.

PN273

And finally, your Honour, the point about res judicata which is referred to in my learned friend's outline at paragraph 4(c), simply doesn't arise. The doctrine of res judicata is concerned with the effect on parties of the final resolution of a dispute between them by a Court. And it holds that, in circumstances where a party has been finally resolved, the party is going to go somewhere else and re-agitate those issues. And we are not at that point, nothing has been finally resolved; we are here solely dealing with the question of competing claims to jurisdiction. Unless there is anything else that I can clarify, or try to, for your Honour, they are submissions in reply.

PN274

THE SENIOR DEPUTY PRESIDENT: I will try to hand down a decision in this matter at 5 o'clock. I will now adjourn.

SHORT ADJOURNMENT [4.17pm]

RESUMED [5.10pm]

PN275

THE SENIOR DEPUTY PRESIDENT: I have reached a decision on the stay application. This is an application by the UFU for a stay of the decision of Commissioner Simmonds that he had jurisdiction to deal with a section 170LW application made by the MFB in respect of certain issues or matters. The UFU maintains the Commissioner erred in his decision. The UFU submits the subject matter of the section 170LW application before the Commissioner is identical to that on which Federal Court proceedings were already afoot, and in such circumstances, clause 12.7 of the extant certified agreement precludes the section 170LW application.

PN276

On the material before me I am not satisfied there is a sufficiently arguable case that the proposition advanced by the UFU is correct. In those circumstances there is no need for me to consider the balance of convenience. Accordingly, the application for a stay, is refused. I now adjourn and I can indicate to the parties that directions for hearing of the appeal will be issued in due course.

PN277

MR WHEELAHAN: If your Honour pleases.

ADJOURNED INDEFINITELY [5.11pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 OUTLINE OF ARGUMENT PN26
EXHIBIT #A2 AMENDED APPLICATION PN26
EXHIBIT #A3 EXTRACT OF THE DISPUTE RESOLUTION CLAUSE OF THE AGREEMENT PN26
EXHIBIT #A4 TRANSCRIPT OF PROCEEDINGS BEFORE THE COMMISSION DATED 21 MAY 2004 PN170