C2004/3703, Transcript of Proceedings [2004] AIRCTrans 2826 (22 July 2004)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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TRANSCRIPT OF PROCEEDINGS

O/N 5415

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT ACTON
DEPUTY PRESIDENT IVES
COMMISSIONER RICHARDS

C2004/3703

APPEAL UNDER SECTION 45 OF THE ACT
BY SENATOR THE HONOURABLE ERIC ABETZ
(SPECIAL MINISTER FOR STATE) AGAINST THE
DECISION [PR945876] OF COMMISSIONER DEEGAN
ON 16 APRIL 2004 IN C2003/5113

CANBERRA

1.30 PM, TUESDAY, 13 JULY 2004

PN1

SENIOR DEPUTY PRESIDENT ACTON: Could I have the appearances, please?

PN2

MR R. CROW: I seek leave to appear for the appellant. With me at the bar table is my instructing solicitor, MR O'DONOVAN.

PN3

MS M. COOPER: For the CPSU as intervener, appearing with MR STEPHENSON, who will be adopting the submissions of the CPSU.

PN4

SENIOR DEPUTY PRESIDENT ACTON: Any objections to - well, the CPSU as intervener, although they appeared at first instance? Intervention is granted. Any objections to the applications for leave to appear? Leave is granted. We've received written submissions in respect of this matter. We have the appellant's submissions, which I'll mark as A1.

EXHIBIT #A1 APPELLANT'S SUBMISSIONS

PN5

SENIOR DEPUTY PRESIDENT ACTON: We have submissions from the CPSU in writing, which I'll mark as R1.

EXHIBIT #R1 SUBMISSIONS FROM CPSU

PN6

SENIOR DEPUTY PRESIDENT ACTON: And submissions in reply from the appellant, which I'll mark as A2.

EXHIBIT #A2 APPELLANT'S SUBMISSIONS IN REPLY

PN7

SENIOR DEPUTY PRESIDENT ACTON: There's also the documentation that was filed in respect of the appeal, being the appeal documents. Is there any other material I should have?

PN8

MR CROW: Yes. If the Commission pleases, we have put together three bricks of paper which I hope not to have to take the Commission to in very much detail, but it comprises the two certified agreements that you'll hear about, and the cases which we have mentioned in our written submissions. Could I hand those up? They're separated by little flags - yellow flags.

PN9

SENIOR DEPUTY PRESIDENT ACTON: I won't mark those, Mr Crow.

PN10

MR CROW: Thank you.

PN11

SENIOR DEPUTY PRESIDENT ACTON: I can indicate to the parties that we've had the opportunity to read the submissions, so the purpose of today's proceedings is for brief oral argument. Mr Crow?

PN12

MR CROW: If the Commission pleases, I'd just like to take the Commission to some of the more important documents in the background to this matter. Could I start by going to the bundle which I've just handed up, and in that bundle, after the index, are the two certified agreements. The one I wish to go to first is the 2001-2002 agreement. The clause which contains the dispute settling procedure is clause 65, which commences at page 22 of the print downloaded from WageNet. You'll see that page 22 commences, "65.1", and there is, half way down the page, "65.6", the procedures to apply when there are disagreements over matters covered by the agreement. There is an, I think, unremarkable series of steps, and over the page item H is the crucial one at the top of page 23:

PN13

Consistent with section 170LW of the Workplace Relations Act 1996, the AIRC, by this agreement, is empowered to settle the matters in dispute. The parties shall accept the decisions of the AIRC.

PN14

Now, the procedure in section 65.6 is the one that was invoked by Mr Stephenson and led to the proceedings in which the decision was made which is under appeal. The clause itself refers to section 170LW, which of course gives the Commission the power to deal with disputes over the application of an agreement.

PN15

Now, if I could then go to clause 28.3, which is the clause which contained the reservation of discretion to the Minister, which was the subject of the notification by Mr Stephenson. In page 10 of the same document you will see a clause 28, "Salary Translation and Progression, Including Increments", and then 28.3:

PN16

On appointment, the salary for Electorate Officers will be the minimum salary point in the band to which the appointment is made.

PN17

And then subclause (b):

PN18

The Minister may permit appointment at a higher salary point where the Minister is satisfied that the appointee has the competencies appropriate to the band, and has particular experience and skills.

PN19

Now, application was made on behalf of Mr Stephenson to the Minister for appointment - or for permission to appoint at a higher salary point. The Minister declined that. This led to the notice under the dispute settling procedure, the Form R47, which you can find in the appeal book at page 44, and this is obviously an important document because it contains the first description by the notifier of the dispute, which of course is important in terms of the Commission's jurisdiction under section 170LW. And at page 44 of the appeal book, that document appears.

PN20

It refers, in the first paragraph below the extract from the certified agreement, to a letter in which request was made to exercise the discretion under clause 28. Included in the letter was a request the Minister advise the Senator of any information he required in order to exercise his discretion. And then there's reference to another letter in which the Minister indicates he's unwilling to exercise his discretion without seeking any further information on the employee concerned. And over the page, on the top of the second - in the second paragraph, second sentence:

PN21

The Minister has clearly indicated in the letter dated 1 November 2002 that he is unwilling to exercise his discretion, and therefore did not do so in this case, without regard to the competencies, experience and skills of the individual concerned. It is argued that the Minister's refusal to exercise his discretion reflects an informal policy to never use this power.

PN22

Now, the letter from the Minister can be found at page 18 of the appeal book, and this was a letter which was sent after there had been some proceedings in the Commission, and after those proceedings it was decided that the Minister would re-exercise his discretion; he would have another look at the application for permission to appoint at a higher salary level, and this is the letter that ensued, and he says in the third paragraph:

PN23

In undertaking this review, I have taken into account the material provided by Mr Friedrick of your office to officers of the Department of Finance and Administration at a conference in the Commission on 18 August 2003, as well as the original letter of request dated 19 September 2002.

PN24

And in the last two paragraphs on that page, and over the page, there are descriptions of the matters which go to Mr Stephenson's competencies, being the matters which were put to the Minister on his behalf. And then he says, "I've considered all the information" and "not disposed to permit him to be appointed at a higher salary level".

PN25

Now, our primary submission is that this letter demonstrates that the Minister has resolved any part of the dispute that related to the procedure for exercising his discretion. Insofar as that was covered by the original R47 notice, it has been rectified by this second examination of the application, and the consideration of the material that was presented on behalf of Mr Stephenson. So that, really, all that can be left is a dispute about the decision itself, or about the outcome o the exercise of the discretion. And what the appellant says is that the respondent is wanting, in effect, a right of appeal - as Mr Stephenson wants - a right of appeal under the 2001 certified agreement, which the agreement itself does not confer.

PN26

In other words, or put another way, he wants, by these proceedings, a new term in the certified agreement, in effect, which gives him a right of appeal to this Commission from an exercise of the discretion by the Minister. Clause 28 of the certified agreement simply doesn't do that. Now, there is a submission - the submission I just made is not novel. It was put to the Commissioner and appears in the transcript of proceedings on Wednesday, 20 August 2003, which commences at page 20 of the appeal book, and the passage, as I say, is to the same effect, is at the top of page 23, paragraph 15. Mr O'Donovan, who then appeared, said:

PN27

There is no dispute about how the agreement applies in the particular circumstances. The respondent accepts that the Minister is obliged to exercise that discretion in good faith to consider the matters.

PN28

And a bit further on:

PN29

We say that this is a matter reserved by the certified agreement exclusively to the Minister, and when that remains to be the only issue in dispute, that is not a dispute about the application of agreement. That is a dispute about how a discretion should be exercised.

PN30

Now, the proceedings came back to the - the proceedings were adjourned, I should say, to 4 November because the time was given by the Commissioner to Mr Stephenson or his representative to consider the jurisdictional issue that was put down on transcript on that day.

PN31

As it turned out, the Minister put further written submissions. This was pursuant to leave granted a bit earlier in the transcript, to which I was just taking you, at paragraphs 4 and 5. Mr O'Donovan in paragraph number of the transcript, reserved an opportunity to supplement his oral submission. That was allowed and the Minister made a further written submission which is in the appeal book at page 69. And that was filed on - or is dated 3 October 2003.

PN32

Mr Stephenson or his representative prepared a written submission as well which post-dates the Minister's submission in response to it. And that appears in the appeal book between pages 56 and 68. And then on 4 November the proceedings resumed in the Commission and the transcript of that commences at page 25 of the appeal book, and the CPSU intervened on that day without objection. That appears at page 26. And there were further oral submissions on behalf of Mr Stephenson, which commenced at page 26 of the transcript by way of supplementation of the submission lodged a few weeks ago, as that appears in paragraph number 43 on that page.

PN33

The Minister orally replied, between pages 29 and 40 of the transcript and then a short reply. The CPSU said it would put its submissions in writing. They didn't make any oral submissions on 4 November. And those submissions were later provided to the parties and Commission, and they are in the appeal book commencing at page 78 - between 78 and 85, and they are dated 10 November.

PN34

The Minister then responded to the CPSUs submissions with some submissions in writing, which I'm not sure they have a page numbering in the appeal book. They were remitted initially and were sent - they were supplemented later, but I understand they have been provided to the members of the Commission. And they respond to the CPSU and then we have the decision of the Commissioner which commences at page 1 of the appeal book.

PN35

Now, the Commissioner made, we would say, four decisions - there are four components or aspects of her decision, each of which is the subject of an appeal, a ground of appeal. And our own submissions, both in A1 and A2 are provided by reference to those four issues or grounds. And the first - the reasoning of the Commissioner in relation to the first of these questions or issues commences at paragraph 46, which is at page 15 of the appeal book. I don't obviously want to go over again the ground that I've covered or we've covered in our written submissions. We don't resile from anything in them and do urge the Commission to read them closely.

PN36

What we say in relation to the first issue, namely whether there is in fact a dispute over the application of the agreement, is that the Commissioner firstly didn't give any satisfactory explanation as to why Mr Stephenson's dissatisfaction with the outcome of the exercise of a discretion, which is confirmed on an employer or on the employer by the certified agreement, gives rise to a dispute over the application of the agreement. And in our submission at A(1) it's developed a bit further in between paragraphs 22 and 34. I particularly emphasise paragraph 32, where we submit:

PN37

By resolving a dispute about what procedure the agreement requires the Minister to follow or the manner in which the discretion must be exercised is vastly different from undertaking a merits review of the decision the Minister has made. While the former would be within the Commission's jurisdiction, the latter is beyond it.

PN38

And we say that however broadly the dispute was characterised in the notification by Mr Stephenson, the Minister has resolved, by his further consideration of the application, any issue about the procedure or process and all that's left is simple dissatisfaction with the outcome and there is no right of appeal from that outcome to this Commission preferred by the certified agreement. The second issue - - -

PN39

SENIOR DEPUTY PRESIDENT ACTON: Mr Crow, before you move on, in terms of the dispute over the application of the agreement, it's mentioned in the Commissioner's decision. She picks up a submission in transcript at paragraph number 15 of the employer in the proceedings at first instance to the effect that the Minister could not exercise the discretionary power unreasonably. I wonder what you say about that. It's not immediately obvious to me as to why the Minister could not exercise the power unreasonably.

PN40

MR CROW: Well, I take your Honour to be referring to paragraph 49 of the Commissioner's decision where she notes the Minister's concession that he was required to exercise his discretion in good faith. Now, it may be that clause 28 - just let me have clause 28 open in front of me as I answer this. The Minister has to be satisfied that the appointee has the competencies appropriate to the band in those particular experience and skills. I accept that it doesn't say in there that he has to be reasonably satisfied or has to consider whether he is satisfied in good faith, but he has conceded that he will do so, and that could only be, I would submit to the advantage of employees on whose behalf an application is made for starting salaries on a high rate.

PN41

Now, the making of that concession, we would submit, seems to have been given greater significance by the Commissioner in her decision than it warrants. We would submit that all that that concession goes to is the question of the manner in which the Minister exercises his discretion, the procedure he adopts, and he's demonstrated, in my submission, his adherence to the conceded requirement of good faith or reasonableness in his second look at it which I've described, as evidenced in that letter I took you to earlier on.

PN42

SENIOR DEPUTY PRESIDENT ACTON: But why do you make that concession? Is it a concession that arises from some view about the application of administrative law or is it a concession that arises from the agreement between the parties about how the agreement would operate?

PN43

MR CROW: Well, let me ask the man who made it. My instructions from Mr O'Donovan is that he made the concession on the basis of his understanding of the requirements of the contract law and perhaps under administrative law. Renaud's case in the New South Wales Supreme Court comes to mind, where it has been hailed that a party to a contract has an obligation to exercise their rights under the contract in good faith. And it seems that that motivated Mr O'Donovan in making that concession.

PN44

He didn't make the concession by reason of any understanding of the matters that were negotiated between the parties in the course of making the certified agreement. It is not something that is a requirement of the certified agreement, peculiarly of the certified agreement; rather more, it is something that Mr O'Donovan regarded as being a matter of contract law.

PN45

DEPUTY PRESIDENT IVES: Mr Crow, I know that the relevant provision in the agreement appears to provide a discretion to the Minister, even in the event that he is satisfied that the appointee has the appropriate - - -

PN46

MR CROW: Yes.

PN47

DEPUTY PRESIDENT IVES: So it would seem that in any event, would it not, based upon the words that are there, whether he had reasonably come to that view or not reasonably come to that view, he retains a discretion, in any event.

PN48

MR CROW: Absolutely, absolutely. He may be satisfied that the appointee has the competencies, but then he has to consider whether he will permit appointment to the ..... So he may be satisfied that there are the competencies and then not permit the appointment.

PN49

DEPUTY PRESIDENT IVES: Yes, I accept that.

PN50

MR CROW: We would say that that makes it even harder for the Commission, in the dispute notification proceedings that the Commission at first instance took, interfere with the decision that the Minister has made. And indeed that leads me to the second issue, and if I can go to it now.

PN51

SENIOR DEPUTY PRESIDENT ACTON: Can I pursue that? If it is right that the Minister is required to exercise the discretion in good faith, is there not capable of being a dispute about the application of the agreement? Isn't it similar to a union not unreasonably withholding agreement to some sort of process that the employer wants to introduce, and the agreement provides the union - or give its agreement, or has to give its agreement to it happening and the union will not unreasonably withhold it.

PN52

MR CROW: Well, it would depend upon the terms of the agreement, your Honour. The terms of section 170LW are clear, we say. If the process that the dispute was about - if the process that the union was withholding its approval to was something that was provided for in the agreement, and the nature of the dispute could be characterised as a dispute over the application of the agreement, then you would be right. But it is very difficult to make a comparison in vacuo.

PN53

We have, in this situation, a particular set of facts, a discretion reposed in the Minister to allow a higher starting point for an employee, and a notification of dispute about what has happened, which arguably could have been a complaint about both outcome and process. It talks, I think, about the unreasonable use of the discretion. Now, even making the concession that we have generously made perhaps, that the Minister is required to do so in good faith, that good faith can only apply to - or only has any meaning or substance in the process that the Minister brings to the exercise of the discretion, the matters that he considers and excludes from consideration.

PN54

So for example, in good faith he might consider only the material he has supplied on behalf of the applicant concerning that person's employment work history, tertiary qualifications, matters of that kind, and he doesn't have regard - because of an assumption of an obligation to act in good faith - of quite superfluous or unlawful matters such as the ethnicity of the applicant, for example, or some personal dispute with the applicant due to a traffic accident.

PN55

DEPUTY PRESIDENT IVES: In any event, though, Mr Crow, doesn't that require us to read some words into the provision as it is written? Isn't it requiring those words "in good faith" to be read into the provision in the agreement; that concession that you make?

PN56

MR CROW: Well, your Honour, if we didn't make that concession, our position would be even stronger, we would say. The concession is in favour of the applicant, and we are content for this Full Bench to rule that there is no obligation on the Minister.

PN57

SENIOR DEPUTY PRESIDENT ACTON: Except you say your concession is based on law.

PN58

MR CROW: Well, that is what Mr O'Donovan understood the legal position to be.

PN59

SENIOR DEPUTY PRESIDENT ACTON: I mean, it may be a crucial issue. If the discretion is at large, it may be there can be no dispute over the application of the agreement, but if effectively we are to read into the agreement the additional words after, "The Minister may" a sentence that also says, "The Minister will exercise this discretion in good faith" that may be an entirely different issue.

PN60

MR CROW: Well, we don't suggest that you should read any new or additional words into the agreement. That would be wrong. You must take the words as you find them. Now, you may form a view different to that conceded by Mr O'Donovan at first instance. But having made it, it would seem that - I can't think of the right word - for us to withdraw it now on appeal would be impolitic or unwise.

PN61

SENIOR DEPUTY PRESIDENT ACTON: Well, if you had made an error of law at first instance in putting that submission, it would be unwise and impolitic not to advise the Full Bench of it.

PN62

MR CROW: Well, I need to get instructions on whether the Minister wants to resile from that position. If you will give me a second I will - - -

PN63

SENIOR DEPUTY PRESIDENT ACTON: From my perspective, Mr Crow, I can say it is an important issue. And if it is a submission based on law, as you have suggested, I would require from you further submissions on the law.

PN64

MR CROW: Yes, well, that would be the better course, your Honour. I hadn't appreciated that this would be a difficulty; I understand now that it is. I need to examine whether the foundation for the concession was sound, and provide you - and the only way I can do that is by providing you with some further written submissions. I just can't do it on my feet.

PN65

SENIOR DEPUTY PRESIDENT ACTON: Yes, certainly. Proceed, Mr Crow, and we can deal with that issue later on.

PN66

MR CROW: So I was about to turn to the second issue that the Commissioner dealt with, and this is dealt with in her decision at page 16 of the Appeal Book and 16 of the decision at paragraphs 50 to 53. But we submit that the only paragraph which actually contains any reasoning by the Commissioner is paragraph 53. She actually comes back to this question of unreasonableness or bad faith in this paragraph and it seems to have been a possibility that the Minister might be able to act in that way but for the CPSU submissions that persuaded her to accept them.

PN67

But we would say in this paragraph 53 the Commissioner, with respect to her, muddled the distinction that we've tried to draw in these submissions and in this appeal between process and outcome. Now, it's true here that the Commissioner has not gone outside her jurisdiction by making an order that Mr Stephenson's starting rate be higher than the minimum, but she has rejected the Minister's submission that to do so would be beyond jurisdiction. She has, therefore, made a decision that she has jurisdiction to do so if she should be persuaded.

PN68

And we would submit that in making that finding - in other words the finding that she can, if necessary, make her own decision that Mr Stephenson should start at that higher salary point - in making that decision she has erred and the proper course is for this Full Bench to say so. Now, the third issue is dealt with at paragraphs 54 to 57 of the Commissioner's decision. And this issue is the issue of whether the making or certification of the 2003 agreement had with it, and combined with the operation of Section 170LX of the Act, the consequence that Mr Stephenson ceased to have recourse to the dispute settling procedure in the 2001 agreement.

PN69

Now, we've dealt with this in both submissions. I particularly rely upon the reply submissions from paragraphs 16 to 21. I'm not sure that I can orally improve upon what's in those submissions. We would submit that the Commissioner made a manifest error in her conclusion that there was in some way a survival of the operation of the 2001 agreement that permitted Mr Stephenson's dispute settling - or the dispute settling procedure initiated by Mr Stephenson to run its course notwithstanding the agreement ceasing to have operation by virtue of Section 170LX.

PN70

Our submission is that where the Commissioner refers to in her decision those paragraphs the rights of employees - as a consequence of the agreement our view is that the rights are - and our submission is that the "rights" are extinguished by the making of the new agreement. It is in the parties' hands to take steps when negotiating a new agreement to preserve the operation of any dispute settling procedure that's in train so that matters can be resolved in that way, rather than by the making of the new agreement.

PN71

We would submit that the ordinary course is that when a new agreement is negotiated between parties if there is a dispute on foot or in existence between the parties at the time of the negotiation the new agreement will be the proper means and the obvious means to resolve it. And the Act, we would submit, would have been drafted in contemplation of that situation. It seems to us to be an odd conclusion for the Commissioner to have reached that a dispute is to be allowed to survive the creation of a new agreement and the termination of the old agreement.

PN72

It seems to us quite undesirable that the Act should be interpreted in a way that actually gives life to disputes after the making of a new agreement when the previous dispute was over the application of the old agreement. That's the best way to solve the dispute over the application of the old agreement; make a new one that clears things up. And even more strongly is that submission in the present circumstances where the certification proceedings occurred right in the middle of the proceedings which give rise to this appeal.

PN73

The certification of the 2003 agreement occurred on 20 August 2003 on the same morning as one of the proceedings in this matter before the Commissioner. And I stress that the agreements or both of them are Section 170LK agreements. They are agreements with employees rather than with the union. Mr Stephenson himself is a party to the agreement. So we've made the submission, we think, with some force in paragraph 21 of our reply submissions A2. And I quote:

PN74

Proceedings under the dispute settling procedure in a certified agreement are not like actions ...(reads)... No mechanism is needed or desirable for the continuation of unnecessary disputes.

PN75

SENIOR DEPUTY PRESIDENT ACTON: Mr Crow, in the Private Arbitration case the High Court, from my recollection, has said that general law, presumably contract law, is applicable to agreements before they are certified. And once they are certified the agreements become like an award. My understanding is that under contract law private arbitration clauses survive the discharge of a contract. If that's the case and we're relying on contract law in terms of the interpretation of the agreement, might it not be that the private arbitration clause survives the end of the agreement?

PN76

MR CROW: Well, your Honour, if that is the situation under the general law it would seem to follow, but I can't - and I must say I wasn't of the understanding that that was the position under the general law. But, again, if you wish me to, since I'm going to be putting in some things supplementary, I can look at that as well.

PN77

SENIOR DEPUTY PRESIDENT ACTON: Yes.

PN78

MR CROW: But I accept that there would be some force in that argument.

PN79

SENIOR DEPUTY PRESIDENT ACTON: Yes.

PN80

MR CROW: I don't know if those instructing me - - -

PN81

SENIOR DEPUTY PRESIDENT ACTON: It may be something you wish to address us further on.

PN82

MR CROW: Well, we will look at that, but I'm reminded that our submission is that the cessation of the operation of the 2001 agreement which was invoked by Mr Stephenson flows directly from the terms of Section 170LS, so you don't have to have resort to general law in order to resolve this particular issue. We would say Section 170LX is clear that an agreement ceases operation when a new agreement replaces it and that's what happened in this case.

PN83

So it ceased operation and the effect of what the Commissioner has decided is that it hasn't ceased operation, because she has decided that Mr Stephenson's - that the dispute settling procedure that he has initiated will continue contrary to the effect created by or enacted by Section 170LX. So even though we say that you just wouldn't look at the general law because the statute prevails we will look at that question and add it to the supplementary submission.

PN84

COMMISSIONER RICHARDS: Is there also a case that is not just the - are you saying it's the dispute that ceases or is it the grant of power by virtue of the agreement to the Commission that ceases?

PN85

MR CROW: Well, it's the latter for present purposes. I did say, though - and this may have prompted your question, Commissioner. I did say earlier that the ordinary and natural thing for parties to do, or course for parties to take in negotiating a new agreement in circumstances where there is a dispute on foot over the application of the old agreement, is to resolve the dispute by the drafting of the new agreement. It would be strange, given the objects of the Act, if the creation of a new agreement was in some way not to resolve disputes over the application of the old one.

PN86

It would be a strained interpretation of Section 170LX, we would say, to treat it as allowing that part of an old agreement to carry on after the commencement of operation of a new certified agreement when the objects of the Act are to encourage the settlement of disputes by negotiation and the creation of agreements. But for the present purpose, Commissioner, it is the case that we say the jurisdiction of the Commission to settle this dispute, which is derived entirely from the 2001 certified agreement, ceases with the cessation of the operation of that certified agreement.

PN87

SENIOR DEPUTY PRESIDENT ACTON: Does it cease to operate as an agreement or does it cease to operate as a certified agreement?

PN88

MR CROW: Well, I think from what's said in the private arbitration case, it - actually I'm not sure I should make the concession I was going to make. I may have to re-read the private arbitration case. It certainly says that underlying a certified agreement is an agreement between parties to which the general law applies. But there may be something else about whether it can have any life at all, even as an agreement between the parties after.

PN89

SENIOR DEPUTY PRESIDENT ACTON: If it has a life, then its operation, presumably, is extinguished, subject to the proviso I referred to earlier, by the operative date clauses in the agreement - this agreement will come into force on X date and remain in force for three years. But that may be a question about the continuing life of the private arbitration course.

PN90

MR CROW: If I may come back to that.

PN91

SENIOR DEPUTY PRESIDENT ACTON: Yes.

PN92

MR CROW: But we would say that - and we've said this in our submissions - it's possible for parties by agreement to avoid all these difficult issues and we would think that that's what they would do. If they didn't feel able to resolve a dispute that was on foot in their certified agreement negotiations they would put a leave reserved clause or a transitional provision in the new certified agreement, and we've made the point in our reply submissions that there is a recognition in the 2003 agreement of just that sort of mechanism. The parties said in - let me remind myself what my submissions said. In paragraph 19, in cluse 6.3 the 2003 certified agreement provides that it:

PN93

Applies to the complete exclusion of the 2001 agreement, except for provisions that continue to apply due to the operation of this agreement.

PN94

So the parties did expressly provide that in some places the 2001 agreement would continue, but they didn't do that in relation to the disputes settlement procedure by drafting a clause specifically tailored to this dispute between Mr Stephenson and the employer.

PN95

And just to reiterate, we say the core of the error by the Commissioner in relation to this point is her failure to make a distinction between rights such as rights to a payment derived from the agreement, for which judicial power can be invoked at any time, notwithstanding the termination or the cessation of the operation of the agreement, and the sort of "rights" which we are talking about here, which is simply the invocation of the disputes settling procedure.

PN96

She seems to feel that if our argument was upheld it would have the consequence that the former category of rights would be denied to employees, which of course is not the case. We don't purport to deny employees at all, and couldn't, the right to seek to enforce the agreement, notwithstanding its cessation. This is purely a matter arising under the agreement by way of dispute by an arbitral power. It's the kind of distinction we refer to later in the case of the Attorney-General for Queensland v The Commission, the High Court decision.

PN97

Indeed, if I come now to the fourth point, where we refer to that case, the fourth issue that we say that the decision raises, is actually also under the same heading as the last one, and it appears in paragraphs 58 and 59 of the judgment, where the Commissioner - she commences by saying:

PN98

If I am wrong about the continued effect of terminated or replaced agreements -

PN99

she says:

PN100

It is my view that the Commission have the jurisdiction to deal with the dispute -

PN101

I paraphrase, because the applicant had in effect an accrued right to have his matter dealt with once the jurisdiction of the Commission was invoked. Well, we say that is just wrong. The jurisdiction derived only from the superseded agreement and by its supersession the jurisdiction ended and can't be maintained or doesn't continue. And we also note in our submission that in paragraph 59 she seems to have confused herself about - when she uses "existing rights". We understand that paragraph to be to the effect that Mr Stephenson had an existing right to the higher rate of pay, which plainly he didn't. The reason for the dispute is that he wanted that rate of pay and couldn't get it without the exercise of the Minister's discretion.

PN102

But we would say over all that or besides all that, we would say that the concept of accrued rights in this case really doesn't arise for this reason. If we are right on the third issue, that the effect of Section 170LX is that the 2001 agreement ceases instanter and the jurisdiction is taken away from the Commission to continue with a dispute, then it must follow that what we say is a practical consequence, is correct, that the new agreement is deemed to have settled all disputes that the parties haven't expressly preserved by some transition or the reserved provision. And that is what they - that is the only means by which they could have continued the disputes settling procedure in the Commission. They don't need to rely upon an accrued right.

PN103

On the other hand, if the Commissioner is correct on that third issue, and then the superseded 2001 agreement has continued to operate to allow the dispute between the Minister and Mr Stephenson to be dealt with under the disputes settling procedure, and therefore again, no question of accrued rights arises because to that extent, contrary, we say, to the obvious meaning of Section 170LX, the 2001 agreement has continued in operation and the jurisdiction of the Commission remains alive because the 2001 agreement has continued to that limited extent. But again, it's not because there is an accrued right. It's for that other reason. So on either view of it we'd say the Commissioner didn't need to go to look at the question of accrued rights.

PN104

Now, as I said earlier, I'm content with the detail in the written submissions. One thing that I should specifically draw to the Commission's attention is that in our initial submission, A(1), we noted the omission from the notice of appeal of an application for leave to appeal, and we set out in paragraph 58 of our initial submissions a term or clause that we would seek leave to insert by way of amendment to the notice of appeal, which sets out the grounds for - I don't know why the grounds are numbered commencing E to I; I have only just noticed that - but in any event - that might be a gremlin in the word processor program - we would say that the - I don't understand there to be any objection to our application for leave to amend the notice to include these grounds. We have given plenty of notice of them, and I don't understand the CPSU or Mr Stephenson to object to it. Obviously we need leave.

PN105

We would say that, on assumption of the leave to amend is granted, that leave to appeal would also be granted for reasons that we have set out. And insofar as the grounds rely upon what we say are important questions raised by the appeal, we rely upon the submissions that we have made about those questions as demonstrating their importance.

PN106

We would submit that there are issues here which of interest beyond those of the immediate parties, and there are very good reasons for the Commission to rule upon the matters that we have raised. I think that is all I really need to say to supplement my friend's submissions. Unless I can help the Commission any other way.

PN107

SENIOR DEPUTY PRESIDENT ACTON: Mr Crow, in the ..... in issue, if I can just turn it up, at the very beginning of it it talks about - it is right at the beginning of the introduction. It is the last paragraph in the introduction, and it is on page 4 of 24 in respect of the Appeal Book - sorry - of the list of authorities. It talks about:

PN108

It is the intention of the Minister that a determination or determinations will be made under the MOPs Act where required in order to ensure that this agreement takes effect in accordance with its terms.

PN109

Do you know whether any determinations have been made under that Act?

PN110

MR CROW: I don't, off the top of my head. I will just have to get instructions.

PN111

SENIOR DEPUTY PRESIDENT ACTON: Thank you.

PN112

MR CROW: I am instructed that there has been a determination. It was made effective from 20 August 2003, the date of the certification

PN113

of the 2003 agreement. And there was one preceding it in relation to the 2001 agreement.

PN114

SENIOR DEPUTY PRESIDENT ACTON: When you are making further submissions you might provide us with a copy of that determination.

PN115

MR CROW: Yes.

PN116

SENIOR DEPUTY PRESIDENT ACTON: And any submissions you wish to make on it.

PN117

MR CROW: Yes.

PN118

SENIOR DEPUTY PRESIDENT ACTON: The reason I raise it is - I certainly haven't made this connection, but it is flagged in my mind, whether the determination then makes the exercise of any discretion by the Minister an administrative act.

PN119

MR CROW: Yes. I will at that, thank you.

PN120

SENIOR DEPUTY PRESIDENT ACTON: Now, the other aspect is in Clause 6.5 of the current agreement - that is the 2003 to 2006 agreement - there is a reference to an application being made under Section 170MH to terminate the previous agreement. Was that application made and it hasn't been dealt with?

PN121

MR CROW: The application has been made, but it has not been dealt with, it hasn't been determined. It has been adjourned.

PN122

SENIOR DEPUTY PRESIDENT ACTON: Is it a recent application, is it, or - - -

PN123

MR CROW: It was made apparently on the day that the matter was before the Commission for certification, which would be 20 August, and was adjourned apparently because of the existence of these proceedings in the Commission. But your Honour, I have to say that I am not - it is not clear to me why the parties thought it necessary to include Clause 6.5 in the agreement at all, because my submission is that Section 170LX of the Act has the effect of making the - of the 2001 agreement ceasing to have operation. So it is otiose, in my submission, for an application to be made under Section 170MH to have it terminated. But I wasn't party to this, or consulted about it, so - - -

PN124

SENIOR DEPUTY PRESIDENT ACTON: Thank you. Ms Cooper?

PN125

MS COOPER: Thank you, your Honour. The CPSU will be relying on its written submissions in support of its submission that there is no error evident in the Commission's decision at first instance. And accordingly, we submit leave to appeal should be refused, or if it is granted that the appeal should be dismissed.

PN126

However, we would like to briefly raise some issues, or discuss some issues in relation to the appellant's reply submission in some of the issues raised today. In respect of the first point of appeal; that this is not a dispute about the application of the agreement, the Minister acknowledges in paragraph 4 of his reply submission, that:

PN127

There is -

PN128

and I am quoting from the decision now -

PN129

substantial scope for there to be a dispute about the application of the agreement having regard to the manner in which the decision was made.

PN130

Now, on examination of Mr Stephenson, Section 170LW application, which the Bench has already been taken to, it reveals just this: the application specifically states that the matter in dispute relates to the Special Minister of States unreasonable use of his discretion under Clause 28(3)(b) of the certified agreement.

PN131

That is the matter that is still in dispute, notwithstanding Mr Crow's comments that the matter was resolved by the Minister's subsequent consideration of the issues. That is still the matter in dispute between the parties. It is a matter that arises under the agreement is the matter that concerns the application of the agreement. And it is also consistent with what Mr Stephenson's representative put it at the first instance.

PN132

It would seem to us that on the Minister's own concessions, as was found by Commissioner Deagon at first instance, that there is a dispute which attracts the jurisdiction of the Commission under Section 170LW of the Act. Notwithstanding the comments that have been made recently about - well, sorry, a few moments ago - about the discretion in the agreement and how it operates, it seems from our perspective that a discretion of a Minister needs to be exercised reasonably - must be exercised reasonably.

PN133

It is a fundamental tenet of law, of administrative law, that anyone in public office who makes decision - decisions that affect rights act reasonably, act within the law, and it is not open to the parties to an agreement to either say that that action should be reasonable or say that it should be unreasonable. It just goes without saying. So the fact that the agreement itself, in our submission, doesn't say that this discretion - how this discretion should be exercised is neither here nor there. It is not something that is subject to the agreement of the parties, it is something that operates by law, by virtue of the law that attaches to public office.

PN134

SENIOR DEPUTY PRESIDENT ACTON: But it begs the question about whether the Minister in exercising that discretion is exercising an administrative discretion - is exercising administrative law.

PN135

MS COOPER: Yes, yes, but the parties have put this discretion in their agreement. They have agreed that there will be in the agreement an opportunity for some staff to be placed at a higher level in the classification scheme than would otherwise be the case. The parties have put that in their certified agreement. It was open to the parties to not have that in the agreement, it was open to the parties to quarantine that discretion in the dispute settling procedures. But the parties didn't do that. It is there in clause 28(3)(b) of the agreement. There is a dispute about the exercise of the discretion. The - - -

PN136

DEPUTY PRESIDENT IVES: Ms Cooper, would it be different if the discretion resided in another person other than the Minister?

PN137

MS COOPER: If the other person presumably would also be a public officer.

PN138

DEPUTY PRESIDENT IVES: Well, if the other person wasn't?

PN139

MS COOPER: If it was an agreement between private parties? Again, that probably goes to the good faith arguments about the exercise of discretions in those circumstances. The Commission is not a stranger to making decisions about exercises of discretion and whether they have been reasonably exercised, and we refer to some of those decisions in our submission. Off the top of my head, though, I think all those decisions have involved public sector organisations.

PN140

But notwithstanding that, one would expect, as it would be absurd to put in an agreement that the parties don't require this discretion to be exercised reasonably, you know, it is equally absurd to say that it shouldn't be exercised reasonably. I actually got those words around the right way.

PN141

It's a matter that goes without saying, and if the exercise of that discretion in the application of the agreement has not been exercised reasonably - as you will note in this agreement, the exercise of the discretion is subject to considerations of qualifications, skills, experience and so on. So if a person, either a Minister or a person acting in a private capacity as an employer, makes the decision that a person with a PhD is not capable of lecturing on that subject that's their subject of their PhD, then it might be quite arguable that that discretion has not been exercised reasonably and in the terms of the agreement in examining what the parties have agreed that that capacity to be allocated to a particular position is available; that that is so unreasonable that the Commission, in the exercise of its discretion, will say, "No, that person should be allocated to that position".

PN142

And on examination of the objective facts before the Commission, it's not unusual that the decision would make - that it has come to a determination that provides for a solution that's reasonable in all the circumstances. In any event, given that the Minister will probably be making additional submissions on this point, we would seek to make submissions in reply.

PN143

SENIOR DEPUTY PRESIDENT ACTON: Can I just give you, by way of example, something that is exercising my mind in consideration of this question. It may be quite common in a certified agreement to have a provision which says the employer may grant leave to attend trade union training courses. Now, that's an exercise of the discretion. The employer may decide, "Well, I'm quite happy to agree to that because I've got no intention of ever granting such leave". It raises the question of whether he's actually able to adopt that view or whether under such a certified agreement he's always required to exercise the discretion fairly.

PN144

MS COOPER: I think that is the case, that that is required to be exercised fairly, otherwise the undertaking or the agreement virtually has no meaning. If the agreement says the employer may allow leave for trade union training leave, the employer then does not allow leave for trade union training leave, it's not unreasonable for the employee involved to ask for reasons why that training leave has not been made available.

PN145

If those reasons are not sound that is - that does concern a clause in the agreement, in the application of a clause in the agreement. And providing it's not quarantined in a dispute resolution proceedings it would be our submission that the employee then could take that dispute over the employer's decision not to allow the employee to attend trade union training leave to the Commission to seek resolution. And in looking at that the Commission would look at why the employer had made that decision.

PN146

DEPUTY PRESIDENT IVES: In which case, Ms Cooper, the addition of the words "And the employer will not unreasonably withhold consent" would be moot, wouldn't they?

PN147

MS COOPER: It wouldn't be moot, but it would make the hurdle a little higher. It would alter the burden of establishing satisfaction to the Commission. Because if the clause says, "The employer would not unreasonably refuse", then it's clearer on the face that the employer is under an obligation to more seriously consider this request. But if an employer behaved unreasonably in coming to a decision the Commission, in its role, has often looked at the reasonableness or otherwise in the employer's behaviour in a particular matter and has ruled upon it.

PN148

But the addition of those words may go some way to altering the burden of proof a little in respect of the person who is trying to make out the case that it has been unreasonably refused. In Mr Stephenson's case it may be that in the substantive hearing of the matter this discretion is a hurdle far too high to overcome, but we say that that doesn't go to the jurisdiction of a Commission to hear the dispute, it goes to the resolution of the dispute; that in some respects the arguments of the Minister are, to use the vernacular, putting the cart before the horse.

PN149

The issue at this stage is, is there jurisdiction for the Commission to consider the exercise of the Minister's discretion. Clause 28.3 clearly puts the issue of the Minister's discretion in the agreement. The Minister's discretion is not excluded from the dispute settling procedures. There is a dispute about the application of that discretion. It follows that jurisdiction resides in the Commission to determine that. Now, whether - as I say, whether that discretion is an insurmountable barrier for Mr Stephenson to overcome in satisfying the Commissioner that - as to the reasonableness or otherwise of the exercise of that discretion is an issue that more appropriately belongs in the resolution of the matter, not at this stage in determining whether or not the Commission is seized of jurisdiction to look at it.

PN150

DEPUTY PRESIDENT IVES: It seems, though, to me, Ms Cooper, that the broader submission that you're making is that the Commission has some role in preventing or at least lifting the parties out of bad deals that they might have made for themselves in agreements, that is, that the Commission then considers the agreement in the light of reasonableness. So that if the parties determined in an agreement that they were going to make a deal that gave a prerogative to one party or the other based upon any arbitrary consideration or none at all, the Commission in subsequently considering that imports reasonable - or a reasonable - a consideration of reasonableness into the exercise of that prerogative, which may never have been intended by the parties but acts as a preventative, if you like, of people making bad deals with themselves.

PN151

MS COOPER: I think all the circumstances that subsist at the time would be taken into consideration. But I think the Commission's consideration of those aspects would be considered not at the jurisdictional - the stage of determining whether or not the Commission had jurisdiction, but at the stage when the Commission is determining whether or not to become involved and what it should do about the resolution of the dispute. In these circumstances we're talking about the Minister of State, we're not talking about a small businessman who is perhaps unfamiliar with industrial instruments and what they might mean for him or her.

PN152

So if the Minister is - you know, and if people generally make a bad deal in business a deal is a deal is a deal. It will still have the force of the law in either contract or in the case of certified agreements by virtue of the operation of the Act. The Commission has a role over certification of the agreement if it perhaps might have some concerns about some issues in a certified agreement and has a role there. But to the extent that the parties make a bad deal and then come to the Commission for resolution or it, again that, I would suggest, is not an unforeseeable or unlikely circumstance in some instances.

PN153

But again, I would say that those concerns or issues about whether or not there's been a bad deal made would be looked at in the resolution of the dispute and would not go to the jurisdictional point.

PN154

SENIOR DEPUTY PRESIDENT ACTON: So if the discretion is one which is in essence unfettered, do you say there can still be a dispute over the application of the agreement?

PN155

MS COOPER: If it's in the agreement and it's not otherwise quarantined from the disputes settlement procedures - the discretion will always be fettered by the principles that apply to the exercise of the discretion, whether they be common law, contract law, administrative law principles. That's what, in the quasi judicial proceedings or in the quasi legislative proceedings, that the Commission undertakes. It's not unusual for the Commission to look at the exercise of a discretion, whether it's being reasonable.

PN156

SENIOR DEPUTY PRESIDENT ACTON: But your notion of there being a dispute over the application is based on the notion that the discretion is somehow fettered, even if it's only by use of the word "fairly" - exercise fairly or reasonably. If there is no such fettering, if the discretion is at large, can there still be an application - a dispute over the application of such a discretion?

PN157

MS COOPER: As Mr Crow has done, maybe I could reserve my position on those further questions.

PN158

SENIOR DEPUTY PRESIDENT ACTON: Certainly.

PN159

MS COOPER: Thank you. At the risk of raising these issues again, it seems to us that the Minister has argued at first instance that were the Commission to make orders substituting its view, it would be beyond the jurisdiction conferred by Section 170LW. That's on page 23 of the appeal book, and in its submissions in reply it says:

PN160

The dispute between the parties is whether Mr S should be started at the high pay point, and the answer to that question lies within the Minister's discretion, not by considering the application of the agreement.

PN161

There are only two quick points we want to make in respect of those submissions of the Minister. Section 170LW provides that the parties may empower the Commission to settle disputes over the application of the agreement. It authorises the Commission to exercise a power of private arbitration. It says nothing about the extent of that power. The parties determine that in their agreement. What the Commission does, in our submission, in settling such disputes, is subject to what the parties have agreed in their disputes settlement procedure.

PN162

In our submission, it was open to the parties therefore, in the certified agreement under consideration, to quarantine the Minister's discretion in the DSP and they did not do so. Consequently, disputes about clause 28.3 are able to be referred to the Commission and dealt with in accordance with the terms of that dispute settlement procedure. In addition, clause 28.3 does provide the Minister has a discretion to allocate a higher salary level, taking into account various considerations. If those considerations, if that discretion, is not exercised fairly or reasonably, a dispute as to its application may arise and it has arisen.

PN163

It is therefore open to either party, on our submission, to invoke the DSP and seek to have the matter determined in the Commission. What form that determination or settlement takes, whether there is in fact a substitution of discretion, will depend on the evidence before the Commission. Because the discretion involved, as I said before, it may mean Mr Stephenson has a high hurdle to overcome in respect of persuading the Commission that a different outcome is warranted.

PN164

Nonetheless, in our submission it's a matter for resolution at the hearing of this substantive matter and does not go to jurisdiction. As Commissioner Deegan correctly identified, there is nothing in the agreement itself, or in the authorities relied upon by the Minister that indicates a discretion in the agreement cannot be subject to the disputes settlement power.

PN165

In relation to 170LX, and again arising out of the submissions in reply, the Minister claims that the words - sorry, 170LX(2) - are not ambiguous. They're unambiguous and there's no lack of clarity and that they should be given their clear meaning. That's paragraph 17 of the submissions in reply. In this context we take the Commissioner to the Minister's assistance at the first instance. That's in tab, behind tab 7, paragraphs 42 to 43 on page 75 of the appeal book. In those paragraphs the Minister says:

PN166

The first issue to consider in analysing the applicant's rights is whether or not there is any distinction to be drawn between an agreement which has ceased to operate under Section 170LX(2) and an agreement which ceases to operate by virtue of termination under 170LX(3).

PN167

In the respondent's submission there is no distinction in terms of legal effect. An agreement can cease to be in operation in one of two ways: as a result of replacement after its normal expiry date by another certified agreement, or by termination pursuant to the provisions of the Workplace Relations Act.

PN168

In that context, and I think this goes somewhat to the point I think your Honour was making, could we go to the 2003-2006 Members of Parliamentary Staff Agreement. It's in the appellant's materials, to clause 6.3, 6.4 and 6.5. The Commission will note that clause 6.3 provides:

PN169

As they apply to employees covered by it, this agreement applies to the complete exclusion of -

PN170

and then lists a number of certified agreements, including in that the Members of Parliament Staff Commonwealth Certified Agreement 2001-2002. It then goes on to 6.4 to say:

PN171

This agreement replaces the Members of Parliament Staff Commonwealth Agreement 2001-2002.

PN172

And it goes on at 6.5 to say:

PN173

Following certification of this agreement an application will be made to terminate the Members of Parliament Staff Commonwealth Certified Agreement 2001-2002 in accordance with Section 170MH of the Workplace Relations Act.

PN174

Now, if in fact in law, as is claimed by the Minister in paras 42 and 3, there's no distinction in legal effect between LX(2) and LX(3), LX(3) providing for termination under, among other provisions, section 170MH, and in considering clause 6.3 which quite clearly states it replaces the 2001-2002 agreement, why does 6.5 exist, if the effect is the same?

PN175

In our submission, we say it's open for the bench to infer that by the inclusion of these clauses the Minister is in fact acknowledging that either the replacement of the 2001 certified agreement in clause 6.4, which by the operation of Section 170LX(2) means that the CA ceases to operate, extinguishing rights and entitlements under the 2001 agreement, either it doesn't have that effect or in the terms of Section 170LX(2) it's uncertain whether or not the 2001 CA rights are removed by it ceasing to operate. So the extra step of termination is taken by the Minister to attain that certainty.

PN176

I'm not sure what the answer is, but it does appear to conflict with the contentions in relation to the operation os LX(2) and LX(3), and I think throws that attendant doubt on the operation of LX(2) and what it actually does to rights and entitlements under a previous agreement. In this context, in either way, we say Section 170LX(2) is required to be read in the manner in which Commissioner Deegan determined paragraph 55 of her decision. We reiterate our submission, that in the absence of clear language to the contrary, legislation should be construed not to diminish rights but to preserve them.

PN177

Now, there's a long list of additional authorities in addition to the Sargood authority that we provided there, actually listed by Kirby J in the AIRC in Queensland case at note 85 of that decision. It's not an unusual point of law and it's a long and well-known held tenet of the principles of statutory construction.

PN178

In addition, we would like to raise a final point concerning paragraph 19 of the Minister's submissions in reply, and referred to by Mr Crow. Now, the Minister quotes clause 6.3 of the 2003 certified agreement, saying it applies to the complete exclusion of - and then they have in brackets, "the 2001 CA, except for provisions that continue to apply to the operation of this agreement". They seem to be saying those words enable an inference that transitional provisions were considered and excluded by the parties. If I could just take the Bench to the actual clause, you will see it says:

PN179

6.3 As they apply to employees covered by it, this agreement applies to the complete exclusion of -

PN180

it lists the various agreements, and then it says -

PN181

and any other relevant award, as varied from time to time, except for provisions of those awards and determinations that continue to apply due to the operation of the agreement.

PN182

It's not a reference at all to the provisions of the 2001 CA, and at best it seems it's an unpersuasive argument, and should not be relied on by the Bench in coming to any conclusions about what the parties intended. In addition, there was no evidence of the parties' intention put on before Commissioner Deegan, and no evidence was sought to be admitted and no evidence was adduced. So in our submission it's entirely inappropriate to introduce these matters at this stage of proceedings, and to the extent that the Minister seeks the Commission draw the inference suggested, we say that inference is not open.

PN183

In conclusion, we really just want to say that the Bench should be persuaded - should the Bench not be persuaded by our arguments in respect of section 170LX(2), we would seek to rely on the submissions at first instance made by Mr Stephenson's representative and the CPSU in respect of the accrued rights issue. And unless there's any other questions from the Bench, that would conclude our submissions, subject to any submissions in reply to further submissions that might be made by Mr Crow.

PN184

SENIOR DEPUTY PRESIDENT ACTON: Thank you, Ms Cooper. Mr Crow?

PN185

MR CROW: In relation to that last point, it is the case that there was no evidence before the Commissioner of actual consideration by the parties to the 2003 agreement in their negotiations of transitional provisions for Mr Stephenson's dispute, but that misunderstand the submission we've made in paragraph 19 of the document A2. All we say is that the existence of clause 6.3 - notwithstanding the wording that Ms Cooper highlighted - it nevertheless demonstrates, in our submission, an awareness of the parties of the - or an awareness by the parties of the possibility of including a transitional provision. That's all we said that you could get from 6.3, and we stand by that submission.

PN186

Could I also say one other thing? Your Honour, Senior Deputy President Acton, asked me, among other questions, whether section 170LX causes an agreement to cease all operation, or just operation as a certified agreement, and that was one of the things I said I would have to get back to you about, and of course I'm happy to do that. But could I submit that in this particular case, by reason of the existence of clauses 6.3 and 6.4 in the 2003 agreement, the 2001 agreement has ceased operation, either by virtue of section 170LX or under the general law, because clauses 6.3 and 6.4 record the agreement of the parties that the 2001 agreement shall no longer have any effect.

PN187

Now, if that's sufficient, I would obviously like to be released from the burden of submitting further submissions on that point, but I'm happy to do so if you would still be assisted by an answer to the more general proposition about the effect of section 170LX and the general law.

PN188

SENIOR DEPUTY PRESIDENT ACTON: We'll leave it up to you, Mr Crow.

PN189

MR CROW: All right. I'll play safe, I think.

PN190

SENIOR DEPUTY PRESIDENT ACTON: One thing that I might just throw into the melting pot for all parties' considerations, given there's going to be further submissions, is that section 170LW talks about procedures in a certified agreement for preventing and settling disputes between the employers, empowering the Commission to settle disputes. I raise - I emphasise the issues certified in light of the previous issues that have been raised. The parties might wish to give some consideration to that issue in terms of whether that wording means that the Commission is only empowered so long as the agreement is certified.

PN191

MR CROW: Yes. Well, my off-the-cuff view is that that is the case, but we'll look at it - add it to our list. There's nothing else I need to respond to. All that has fallen from Ms Cooper, I think, is dealt with in our submissions.

PN192

SENIOR DEPUTY PRESIDENT ACTON: Thank you. I'll issue some directions to the parties in respect of filing written submissions. Mr Crow, would two weeks be suitable for yourself for further written submissions?

PN193

MR CROW: I can do it by then, but I'm told that we'd need to get consultation from other people, and for that reason we would ask for an extra week; can we make it three weeks?

PN194

SENIOR DEPUTY PRESIDENT ACTON: And a further three weeks after that for yourself, Ms Cooper?

PN195

MS COOPER: Two weeks will be sufficient.

PN196

SENIOR DEPUTY PRESIDENT ACTON: Two weeks for yourself. Okay. I will issue the following directions: The appellant is to file in the Commission and serve on the respondent by close of business on 3 August 2004 its written submissions in respect of the issues raised on the hearing of the appeal. In turn, the respondent is to file in the Commission and serve on the appellant by close of business on 17 August 2004 its written submissions in respect of the issues raised on the hearing of the appeal, and the appellant is to file in the Commission and serve on the respondent by close of business on 24 August 2004 any written submission in reply. The Commission will then determine the matter on the basis of all the material before it.

PN197

MR CROW: Thank you.

PN198

SENIOR DEPUTY PRESIDENT ACTON: We will now adjourn.

ADJOURNED INDEFINITELY [2.58pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 APPELLANT'S SUBMISSIONS PN5
EXHIBIT #R1 SUBMISSIONS FROM CPSU PN6
EXHIBIT #A2 APPELLANT'S SUBMISSIONS IN REPLY PN7