C2004/3250, Transcript of Proceedings [2004] AIRCTrans 2892 (27 July 2004)

AUSCRIPT PTY LTD
ABN 76 082 664 220

ADMINISTRATOR APPOINTED

Level 10, 15 Adelaide St BRISBANE Qld 4000
(PO Box 13038 George Street Post Shop Brisbane Qld 4003)
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N 2994

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER RICHARDS

C2004/3250

THE AUSTRALIAN LICENSED AIRCRAFT
ENGINEERS ASSOCIATION

and

JET CARE PROPRIETARY LIMITED and ANOTHER

Notification pursuant to Section 99 of the Act
of a dispute re failure to comply with terms and
conditions of clauses 1, 2, 3, 4, 5 and 13 of
Recommendation by Consent (PR945321)

BRISBANE

8.51 AM, FRIDAY, 16 JULY 2004

PN1

THE COMMISSIONER: Good morning, everyone. If I can just take some appearances to start with.

PN2

MR D. CHIN: I seek leave to appear as counsel for the Australian Licensed Aircraft Engineers Association. Instructing me is MS McROBERT.

PN3

THE COMMISSIONER: Good, thanks, Mr Chin. I'll come to leave shortly but I don't think we'll have a problem.

PN4

MR J. TUCK: No, I don't think we will, Commissioner. I seek leave to appear on behalf of Jet Care.

PN5

THE COMMISSIONER: Good, thanks, Mr Tuck. Are there any issues regarding leave?

PN6

MR TUCK: No, Commissioner.

PN7

THE COMMISSIONER: Leave is granted in both cases of course. Housekeeping matters first of all. Mr Chin, do you have any?

PN8

MR CHIN: No, Commissioner. I'm prepared to commence my opening. Can I firstly thank the Commission and the Commission staff for accommodating the parties with extended hours for today's hearing.

PN9

THE COMMISSIONER: No other matters?

PN10

MR CHIN: No, Commissioner.

PN11

THE COMMISSIONER: All right. We might discuss shortly just some of the timing arrangements with this and we might adjourn just for a few minutes, but that said, Mr Tuck, do you have matters?

PN12

MR TUCK: Well, as to the manner in which the matter proceeds, and whether or not the question of jurisdiction is determined first is a matter that I would like to raise at the outset. In my submission the Commission ought first determine whether it has jurisdiction to conduct this hearing before it embarks on a process of hearing evidence about these matters.

PN13

So that it's made plain, as I understand it, Commissioner, the basis upon which we're here today and the basis on which the Commission has been asked to sit in this proceeding need to be made plain, because in our submission, with respect, the Commission doesn't have any particular jurisdiction today to be dealing with the matters which the union seeks to agitate. And unless it has that jurisdiction, it seems pointless to spend days going through evidence about matters in which ultimately the Commission may determine that it had no jurisdiction to hear, nor has jurisdiction to determine any of those matters.

PN14

THE COMMISSIONER: All right, okay. Look, I want to discuss with the parties the issue of the timing arrangements of this exercise regardless, and we might have a discussion about that matter as well, but we might have that by way of an adjournment, a conference following an adjournment. So we'll adjourn just for a few minutes to discuss these matters. We're adjourned.

SHORT ADJOURNMENT [8.53am]

RESUMED [9.00am]

PN15

THE COMMISSIONER: Good, thanks everyone. We've had an adjournment in which we've discussed some timetabling matters as well as to the approach on the issue of jurisdiction and the merits in relation to this matter. I'm of the view that the time that seems to be required for dealing with this matter in its entirety is somewhere around approximately one and a half days, it would appear, or somewhere roughly around that time period. We have before us today all the relevant - we have the opportunity today to deal quite possibly with most of the witnesses in respect of this matter.

PN16

I take Mr Tuck's point that there are important jurisdictional matters to be determined in relation to this matter, but I think as a matter of caution and for want of not wanting to delay this matter further, we will deal with all the considerations today, that is, in their entirety - the jurisdictional matters as well as as much of the other evidentiary, witness-related materials as we possibly can. That said, if I can possibly say that I think we will spend some time just shortly clarifying some of the matters in relation to this matter perhaps by way of commencement of argument on jurisdiction, as I think there are some issues there that require some greater clarity. Now, that said, are there other matters that now need to be dealt with on the basis of that conclusion?

PN17

MR TUCK: I'll take up your invitation that that will be an opportunity to discuss the jurisdictional issue up-front because in my submission it does determine, you know, what is the issue before the Commission that the Commission has been asked to determine and on what basis is the Commission - because that affects what evidence is going to be allowed in.

PN18

THE COMMISSIONER: I think that you've raised issues in correspondence with me last week, Mr Tuck, as to issues of relevance and weight, and yes, they do emerge from time to time in proceedings such as this, and the Commission's views about those issues is of course, how shall I say, informed by a clear understanding of what is the matter that is being ventilated with some precision before the Commission. So yes, that will play some role in assisting us in some filtering, if necessary, of some of the documentation if that comes to pass. So, yes, yes, I take your point.

PN19

Now, that said, are there other issues any of the parties want to raise at this point or are we in a position now to start with jurisdictional argument - the clarification of the - the need for the application, the relief sought, and the examination of the jurisdictional issues? Is that the way, Mr Chin, you had proposed to start regardless?

PN20

MR CHIN: Commissioner, I propose to open briefly on both the jurisdiction and the merits issues, subject to the Commission's determination. If the Commission so desires, principally focus on the jurisdictional issue.

PN21

THE COMMISSIONER: Well, we're going to deal with both of these issues, merits and jurisdiction, consolidated, if you like.

PN22

MR CHIN: Yes.

PN23

THE COMMISSIONER: So you can proceed on that basis, as long as those issues, the jurisdiction and the clarification of the application and the relief sought, are up-front, if you like.

PN24

MR CHIN: Yes, indeed.

PN25

THE COMMISSIONER: And you can then move to your merit considerations and evidence.

PN26

MR CHIN: Indeed. May it please the Commission, the nature of the dispute before the Commission is set out and was initiated by a notification of a dispute by my client under clause 14 of the consent recommendation of this Commission, PR945321. Can I inquire, does the Commission have a copy of the dispute notification of 23 April 2004? I have a copy here if it's convenient.

PN27

THE COMMISSIONER: No, no, I have a copy. I think the terms of that dispute notification are also replicated in your submissions in reply as well, I think.

PN28

MR CHIN: They are. The relevant parts are, that is, in paragraph 1 of the notice of dispute. The Commission will see that from the terms of this notification it is quite clear that the notification of the dispute proceeds upon the dispute resolution procedure contained in the consent recommendation itself. The consequence of that is that the primary relief sought by my client - certain directions are set out as an exercise of this Commission's private arbitration powers pursuant to the role given to it by the parties by agreement arising from the terms of the consent recommendation itself. In various parts of the submissions it has been alleged by the respondent that my client lodged a garden variety Section 99 dispute.

PN29

In fact, to the extent that that has been recorded in the Commission's documentation, it's apparent that that notification is in error, and is in the nature of an administrative error, because the substance of the dispute proceeds upon the dispute resolution procedure contained in the consent recommendation itself.

PN30

THE COMMISSIONER: I mean, it's clear from your documentation, your originating documentation - that's why I also took you to your submissions in reply - that your application was, for all intents and purposes ostensibly an application in relation to Section 111 and are you saying that the fact that it appeared as a Section 99 through the Commission's administrative, or Registry administrative purposes, is another issue?

PN31

MR CHIN: Yes, it's an administrative issue.

PN32

THE COMMISSIONER: Yes, I suspect this is because there was no formal method of dealing with an application under Section 111 - that there was no rule and no form that applies to applications in respect of that matter formally, so I think it was for internal administrative purposes, that don't go to your application, that the details of your particular application were represented as a convenient - as an administrative convenience, if you like, in that matter.

PN33

MR CHIN: Yes, I accept that. The consequence of it though is that to the extent that the respondent alleges that the application or the dispute now before the Commission is in some way a new application, which is what is, as I understand it, alleged in their written submissions, then that is incorrect. It is the same application pursuant to the dispute notification filed on 23 April.

PN34

THE COMMISSIONER: Yes, that can have several meanings, but we'll let Mr Tuck come to that in due course.

PN35

MR CHIN: Yes. So that primarily, Commissioner, the powers that my client seeks to invoke are those analogous to the private arbitration powers which the Commission commonly exercises in relation to dispute resolution procedures in certified agreements in relation to and analogous to the analysis of the High Court decision in CFMEU v The Australian Industrial Relations Commission in the private arbitration cases, which is what we deal with from paragraph 8 of our written submissions filed on 9 June 2004.

PN36

The alternative jurisdictional basis, Commissioner, in the event that the Commission finds that it lacks power to make the directions sought pursuant to a private arbitration power, is that we seek directions and recommendations in the terms sought as an exercise of the Commission's conciliation power under Section 170NA(1) of the Act. The Commission will recall that the jurisdictional basis for the consent recommendation at issue and its predecessor proceeded upon the Commission's conciliation power under Section 170NA(1). That was an altered jurisdictional basis by consent of the parties in relation to the original consent recommendation, I think at the suggestion of the Commission, in view of the Commission's view that there was no basis to deal with the original application under Section 170LW.

PN37

The present dispute on this alternative basis, I submit, is an emanation of the same matter which the Commission dealt with by way of the consent recommendations pursuant to its conciliation powers under Section 170NA. This, after all, deals with the application of the terms of the parties' agreement enshrined as a consent recommendation under Section 111AA, the consent recommendation of which proceeded upon the exercise of the Commission's conciliation powers under Section 170NA in view of the initiation of the bargaining period by my client prior to the making of the original consent recommendation.

PN38

Now, on the alternative basis, there is some debate, I anticipate, as to the extent to which the Commission's conciliation powers may be exercised in a manner sought, that is, by way of direction or by way of recommendation. My client relies on the authority of the CEPU v Telstra Corporation, which is dealt with and identified in paragraph 11 of our initial submissions to support the proposition that in the exercise of conciliation powers the Commission is able to issue substantive directions pursuant to Section 111(1)(b), (d) and/or (t) of the Act. So that in the application of the ALAEA, which is appended to our written submission on 9 June, and in the written submission themselves, the jurisdictional basis has been clearly and consistently, in my submission, set out, and it is consistent with the nature of the dispute notified by my client to the Commission under the dispute resolution procedure provided for in the recommendation by consent.

PN39

Now, Commissioner, the primary position of my client in relation to the private arbitration clause is dealt with at paragraphs 8 to 13 of our initial written submissions. Can I ask the Commission to turn to those submissions. The private arbitration case relied upon in paragraph 8 of those submissions dealt with the powers of the Commission pursuant to a disputes resolution procedure under a certified agreement, and the High Court in that case found that a combination of Section 170LW and Section 89B of the Act provided the Commission with the requisite power to exercise not its arbitral functions in relation to preventing and settling industrial disputes, but powers akin to mandatory powers to settle disputes by making decisions as to the legal rights and liabilities of the parties.

PN40

They are not as such arbitral powers, but they are available to the Commission on the basis that the parties themselves have agreed to invest the Commission through an agreed disputes resolution procedure with the power to finally determine the legal rights and liabilities of the parties pursuant to that disputes procedure.

PN41

Similarly in these proceedings, Commissioner, the parties have invested the Commission with the power under clause 14 of the consent recommendation, and ultimately clause 32(4) of the relevant certified agreement, with the power to determine the subject of the dispute whereby such determination would be final and will be accepted by the parties. There is no question in my submission that the disputes resolution procedure agreed to by the parties invests the Commission to, in a sense, determine the subject of the dispute, in this case the application of the consent recommendation, to finality, that is, to make a determination that is binding and final in its effect.

PN42

There is no question that the disputes procedure at issue in these proceedings is closely analogous to that determined and examined by the High Court in the private arbitration case whereby in that case the disputes procedure was to the effect that the parties would agree to abide by any decision determined by the Commission. Similarly in this case, Commissioner, the parties have agreed that subject to any appeal in accordance with the Act, any matter submitted to this Commission arising from the application of the consent recommendation shall be final and shall be accepted by the parties.

PN43

Now, Section 111AA enables the Commission to make recommendations to which the parties have agreed to comply. That is, the effect of the consent recommendation is that the parties have agreed to comply in this case with the disputes procedure. This disputes procedure, which I've submitted, gives power to the Commission to conduct a private arbitration pursuant to which its decision shall be final and shall be accepted by the parties. This, in my submission, Commissioner, is closely analogous to the conferral of private arbitration functions under the disputes resolution procedure which the Commission derives from Section 170LW and which was under consideration in the private arbitration case.

PN44

It is to be noted that like Section 111AA, Section 170LW does not of itself confer any private arbitration functions on the Commission. It is their operation in conjunction with the agreed disputes resolution procedure which so authorises this Commission. In my submission, Section 111AA, in conjunction with the agreed disputes procedure in the recommendation itself, similarly authorises this Commission to determine the rights and obligations of the parties under the consent recommendation.

PN45

Now, it's said against us, Commissioner, that Section 170N of the Act stands between the exercise of the private arbitration powers which my client seeks and the application before the Commission in these proceedings. This submission is misconceived. It is misconceived for two main reasons, and I deal with those misconceptions both in the reply submissions and principally in the primary submissions, written submissions, on 9 June, at paragraph 13 on pages 7, 8 and 9. Without at this stage taking the Commission to the text of the authority, we rely on the decision of the Commission in re Curragh, C-u-r-r-a-g-h Queensland Mining Limited.

PN46

In this respect, the arbitration powers to which Section 170 applies is relevantly distinguishable from the private arbitration powers which we seek to invoke in these proceedings. Section 170N provides, Commissioner, that:

PN47

During a bargaining period the Commission must not exercise its arbitration powers under Part VI in relation to a matter that is at issue between the negotiating parties.

PN48

Firstly, it's submitted that by this application the Commission is not being called upon to exercise its arbitration powers under Part VI per se, that is, its arbitration powers to prevent and settle an industrial dispute within the meaning of the Act and within the meaning of Section 89A in particular. Rather, it's submitted, Commissioner, that the application invokes the Commission's powers of private arbitration which are given to it by agreement of the parties pursuant to Section 111AA and pursuant to the disputes procedure in the consent recommendation itself. These powers do not relate to the prevention and settlement of industrial disputes within the meaning of the Act, and we set out the elaboration of that submission on pages 7 and 8.

PN49

The second reason, which puts the matter beyond doubt, Commissioner, is that Section 170N is confined to precluding the exercise of arbitration powers to:

PN50

Any matter that is at issue between the negotiating parties.

PN51

Now, it is, in my submission, well settled - and we refer to relevant authority on page 8 of the written submissions - that the relevant matters at issue between the negotiating parties in respect of which Section 170N precludes the exercise of arbitration powers, are confined to those matters about which the party initiating the bargaining period, that is, in this case my client, wishes to negotiate and reach agreement. In fact, in re Curragh a Full Bench of the Commission determined that it was inclined to interpret the term "matter that is at issue" in much the same sense as the matters particularised in the notice initiating the bargaining period.

PN52

In applying Section 170N the Commission has, in my submission, searched for a correspondence between matters to be the subject of arbitration and the matters at issue between the parties in the context of their negotiations for the prospective certified agreement. Now, in this case, Commissioner, the matter at issue in these proceedings does not relate to any matter at issue between the parties in the context of their negotiations for a prospective certified agreement. What is at issue is the terms and conditions upon which those negotiations are to proceed, that is, whether those negotiations are to take place in circumstances where the respondent is able to alter existing terms and conditions of employment of employees by the making of AWAs.

PN53

In my submission, that distinction between the matters at issue between the parties, to which Section 170N applies, and the matters about which the Commission is dealing now, have not been adequately dealt with by the respondent in its submissions in reply. On that basis, for those two reasons, Section 170N does not stand, in my submission, as any bar to this Commission exercising its private arbitration powers in these proceedings. Indeed, the Commission - this is a point that is made in our reply submissions - in its decision of 15 July 2003 in making the original consent recommendation, itself correctly recognised the distinction between private arbitration powers, such as perhaps the Commission posited the powers exercised under Section 111AA and on the other hand arbitration powers that are precluded by Section 170N, and I submit the Commission was correct in making that distinction and it's a distinction which applies in this context.

PN54

Now, Commissioner, that is a brief overview of the jurisdictional issues for which my client agitates. There are matters concerning the alternative bases, that is, the conciliation powers under Section 170NA, which I've dealt with in our written submissions. I don't propose to go to them in opening in any more detail unless the Commission would be assisted by that stage.

PN55

THE COMMISSIONER: I'll just ask you some questions on some of those matters, perhaps just on Section 170NA(1) that you've just been discussing. So you're saying that your submission is that the Commission is not precluded from exercising powers of private arbitration in respect of Section 170NA(1), an application under Section 170NA(1). Is that - - -

PN56

MR CHIN: Commissioner, you're referring to the issue of private arbitration powers?

PN57

THE COMMISSIONER: Yes.

PN58

MR CHIN: My submission is that the Commission is not precluded from exercising those powers by Section 170N(1).

PN59

THE COMMISSIONER: Right.

PN60

MR CHIN: 170NA is the provision which invests the Commission with conciliation powers.

PN61

THE COMMISSIONER: Yes.

PN62

MR CHIN: Upon which the Commission relied to make the consent recommendations in the first place. That is the provision upon which we rely in relation to invoking the Commission's conciliation powers in these proceedings as, if you like, a continuation of these proceedings.

PN63

THE COMMISSIONER: So you argue in respect of your first jurisdictional limb, the exercise of - in terms of your submission, the exercise of the private arbitration power in the context of your first jurisdictional limb is not barred by virtue of Section 170N of the Act?

PN64

MR CHIN: Yes, that's so.

PN65

THE COMMISSIONER: That's that submission. Your second jurisdictional limb refers to a number of grounds regarding access to conciliation powers and they're the ones that you're relying on - that's where Section 170NA(1) comes into play.

PN66

MR CHIN: Indeed.

PN67

THE COMMISSIONER: And that's where you rely on your written submissions in respect of that matter. Is that the case?

PN68

MR CHIN: That's so.

PN69

THE COMMISSIONER: Okay, then. Well, can I just ask you a number of questions just about your first jurisdictional limb then? You contend that - and perhaps if I can just clarify this in my own mind. It's your contention that the recommendation by consent made in this case on 1 April 2004 functions in its own right as a de facto, if you like, Section 170LW provision, and by so doing it empowers the Commission to fulfil a role for the purposes of resolving this dispute as specified in the disputes resolution clause in that consent recommendation. Is that b

PN70

MR CHIN: That's so essentially. In my submission the situation is analogous. It's appropriately analogous to the private arbitration power that emanates from a combination of Section 170LW and disputes resolution procedure in a certified agreement.

PN71

THE COMMISSIONER: So the implication of that would be though - well, first of all, 170LW is a statutory provision which provides a statutory basis to the Commission exercising a function in relation to a term in a certified agreement and specifically a term under a dispute resolution clause. So you're saying that there is a relationship between that statutory base provision and the recommendation of the Commission by way of the recommendation by consent?

PN72

MR CHIN: That's so. The recommendation by consent, the nature of the recommendation is no mere - of itself a unilateral recommendation from the Commission. That is, that the parties have undertaken, as a pre-requisite to the making of the recommendation, an agreement to comply with the terms of that recommendation. That agreement to comply with the terms of the recommendation binds the parties to the terms of the recommendation. One of the terms of the recommendation is an agreement to submit matters of dispute about the recommendation and its application to the Commission for final determination. The parties have agreed to do so and have agreed to bring the dispute to the Commission for its final determination in the same way that the parties do so pursuant to a disputes procedure in a certified agreement.

PN73

THE COMMISSIONER: So in the circumstances of an issue of non-compliance with a recommendation by consent, you're saying that the Commission has some ongoing role in ensuring compliance or - - -

PN74

MR CHIN: Well, only - that would depend upon the terms of the recommendation. Where one would have a recommendation absent any disputes provision, absent any agreement to submit a question for dispute for the exercise of private arbitration powers by the Commission, then the Commission may not have an ongoing role necessarily. The terms of this particular consent recommendation does provide, by agreement of the parties, that ongoing role by virtue of the inclusion of the disputes procedure, in my submission.

PN75

THE COMMISSIONER: In relation to Section 170NA of the Act, which is part of your second jurisdictional ground, what are you seeking from the Commission in respect of that matter? If Section 170NA of the Act were available for the purposes of - as a matter of jurisdiction, and there was an application and the matter was before the Commission under Section 170NA of the Act, what would you be seeking from the Commission?

PN76

MR CHIN: What we seek in relation to that, in the first instance in my submission, the Commission in the exercise of conciliation powers, is able by virtue of the CPSU v Telstra decision, to issue substantive directions in the exercise of conciliation power. On that basis, in the first instance we would seek a substantive direction of that, Jet Care Proprietary Limited, in terms of the application, refrain from making Australian workplace agreements or from taking any other steps to alter existing terms and conditions of employment in the terms sought in the application submitted by my client.

PN77

In the alternative, what we would seek, a recommendation from the Commission to the same effect, that is, until the expiry of the consent recommendation in I think September - 30 September, I think, this year. As a matter of the exercise of the Commission's conciliation powers, in my submission, under Sections 111(1)(b), (c) or (t), the Commission is able to make substantive directions, or in the alternative we would seek a recommendation from the Commission subject to the Commission's determination of the merits of the application of course, that Jet Care Proprietary Limited be required in effect to observe the terms of the consent recommendation until its expiry.

PN78

THE COMMISSIONER: Does that matter, in your view, run up against the Full Bench decision in Census, to which I think reference is made in the respondent's submissions, I think.

PN79

MR CHIN: If I may just have a moment. It does not, Commissioner, for this reason: there's no difficulty with the present dispute constituting a matter arising under Part VIB of the Act in relation to which Section 170NA invests the Commission with conciliation powers. The Commission determined that the consent recommendation enshrine the terms upon which the parties would proceed to negotiate a new certified agreement. The dispute before the Commission is in substance the same matter, the same matter arising under that Part. That is, the terms upon which the parties are to proceed to negotiate or attempt to negotiate a new certified agreement.

PN80

In my submission, what the Commission did in effect in making the consent recommendation, was to determine and give effect to an agreement between the parties that during those negotiations terms and conditions of existing employees - or existing terms and conditions of employees would remain unaltered. The respondent, it is alleged, has sought to alter those terms and conditions by the making of AWAs in contravention of the terms of the recommendation and the matter arising under Part VIB before the Commission now pursuant to Section 170NA correlates to the matter before the Commission in making the recommendation in the first place, that is, whether or not the respondent company is entitled to seek to alter the existing terms and conditions of employees during the current CLB negotiations between the parties for a new certified agreement. Does that deal with that Commission's inquiry?

PN81

THE COMMISSIONER: Can we just come back to the original issue that I asked you about before, and that is, is your contention that the Commission can, by way of consent recommendation, mandate a dispute resolution procedure in a recommendation by consent that enables that matter to be revisited at a later time in the event of a dispute over the recommendation by consent? The point I'm trying to come to is there's this - how does the Commission revisit a recommendation by consent once made? It may well have in it matters to do with dispute resolution procedures in this case, but notwithstanding that, how does the Commission revisit a consent recommendation once made?

PN82

MR CHIN: It does so in this way, and it does so in a way analogous to the way in which it revisits a certified agreement. It does so by a combination of firstly its power to make the consent recommendation and secondly by the agreement of the parties to submit the issue concerning the consent recommendation back to the Commission for its final determination. There's no ambiguity about the terms of the dispute procedure at issue in these proceedings. That is, that the parties have agreed to submit issues, including this issue, to the Commission for its final determination. That is, in the nature of a decision pursuant to a private arbitration. Perfectly analogous with the nature of the agreement of the parties as it relates to investing the Commission with jurisdiction in combination with relevant provisions of the Act in the private arbitration case.

PN83

The Commission would have to look firstly at its power to make the recommendation and secondly at the nature of the parties' agreement. It's not an agreement to refer to the Commission to conciliate or to submit our question for an advisory opinion or something of that nature. It is an agreement to return the matter in dispute to the Commission for its final determination. As such, it is an investment within the Commission of a power to exercise and conduct a private arbitration, in my submission.

PN84

THE COMMISSIONER: But it's one the Commission, by dint of its power to make a consent recommendation, establishes for itself - - -

PN85

MR CHIN: In part I would submit that's correct, but it's not - it's a matter that is submitted to the Commission. It is established in the combination of the consent and agreement of the parties themselves on the one hand, and on the other the power of the Commission to manifest that agreement or consent under Section 111AA. Can I perhaps hand up a copy of the private arbitration case. I have other authority behind it. I don't wish to take the Commission to it at this stage, but if I can hand that to the Commission.

PN86

THE COMMISSIONER: I presume you don't want this list of authorities tendered, do you?

PN87

MR CHIN: No, Commissioner.

PN88

THE COMMISSIONER: I should ask you though, do you want your written submissions tendered?

PN89

MR CHIN: That might be convenient.

PN90

THE COMMISSIONER: Yes, can we mark those A1.

EXHIBIT #A1 WRITTEN SUBMISSIONS OF APPLICANT DATED 09/06/2004 AND WRITTEN SUBMISSIONS IN REPLY DATED 02/07/2004

PN91

MR CHIN: That's the submission of 9 June? That's my submission?

PN92

THE COMMISSIONER: Well, would you like - we'll mark as A1 the submissions of 9 June and the written submissions in reply, to which you have also referred of 2 July 2004. We'll mark those jointly.

PN93

MR CHIN: As A1?

PN94

THE COMMISSIONER: As A1.

PN95

MR CHIN: Yes, that's convenient, Commissioner. Can I ask the Commission to turn to page 658 at about paragraph 31. This is the CFMEU v AIRC [2001] HCA 16; (2000) 203 CLR 645. The High Court there, Commissioner, said this:

PN96

Where parties agree to submit their differences for decision by a third party, the decision-maker does ...(reads)... of its own force. Rather, its effect, if any, depends on the law which operates with respect to it.

PN97

Paragraph 32 the Court says:

PN98

To the extent that Section 170MH of the IR Act -

PN99

I think the predecessor to 170LW -

PN100

operates in conjunction with an agreed dispute resolution procedure authorising the Commission to make ...(reads)... into an industrial dispute, are clearly procedures for maintaining that agreement.

PN101

And then at 34, down the page, Commissioner, the Court says this:

PN102

The parties to an industrial situation are free to agree between themselves as to the terms on which ...(reads)... on the general law, not the legislative provisions which give it effect as an award.

PN103

Then over the page the High Court then examines the provisions of the Workplace Relations Act and determines that:

PN104

In these circumstances Section 89B of the Act authorises the Commission to exercise -

PN105

and I'm reading from paragraph 39 -

PN106

those functions under clause 22 of the agreement -

PN107

that is the disputes resolution clause -

PN108

which the Commission derived from Section 170MH and the IR Act. Section 89A does not limit the powers which may be exercised by the Commission in discharging those functions.

PN109

The High Court thus found that it is a combination of the agreement of the parties, Commissioner, and the provisions of the Act which invest the Commission with jurisdiction and power to conduct private arbitration proceedings.

PN110

THE COMMISSIONER: So I presume it's not your contention that the High Court is here saying that there's a nexus between the disputes resolution clause in a certified agreement, Section 170MH of the Act now - the predecessor to Section 170LW of the Act - and Section 89B of the Act?

PN111

MR CHIN: I think in my submission the High Court is saying that Section 89B of the Act authorises the Commission to exercise, in its terms, "other functions as conferred on the Commission by the Act." That would include in this circumstance the powers conferred under the certified agreement and in substance Section 170LW. So it's a combination of Section 89B, Section 170LW and the terms of the disputes resolution procedure in the certified agreement itself.

PN112

THE COMMISSIONER: Yes, but you're saying that that nexus, that set of connections between the certified agreement, Section 170LW and Section 89B are transferable to the situation for the purposes of a recommendation by consent?

PN113

MR CHIN: Well, the Commission is not dealing with Section 170LW in these circumstances. The Commission is dealing with a combination of Section 89B, Section 111AA and the terms of the dispute resolution procedure in the consent recommendation made pursuant to Section 111AA. And in my submission that is an analogous combination of powers under the Act and the agreement of the parties in terms of submitting a dispute question for the final resolution of the Commission to invest the Commission with a power to conduct a private arbitration in these circumstances.

PN114

THE COMMISSIONER: Mr Chin, can I just take - just depart from that just for a moment to take you back - well, it's not quite a departure, it's somewhat related. But can I just take you back to the conference that was held with the Commission on 27 April 2004 in respect of the initiating application as it was under Section 111.

PN115

MR CHIN: This is the first conference, Commissioner?

PN116

THE COMMISSIONER: Well, it's the first conference in relation to the "application" that was made in respect to the non-compliance with the recommendation by consent of 1 April 2004. I think from memory that application came in on - the recommendation, just for the purposes of getting the chronology right, the recommendation by consent, the later one - sorry, the most recent one was made on 1 April 2004. Your notification of a dispute in relation to Section 111AA was made on 23 April 2004 and the conference was conducted on 27 April 2004. Now, I think that's the correct - - -

PN117

MR CHIN: Yes.

PN118

THE COMMISSIONER: Right. Now, at that conference of 27 April, that was a conference held on what - would you characterise that as a conciliation conference?

PN119

MR CHIN: That's a conference at which I wasn't present.

PN120

THE COMMISSIONER: At which the Commission - yes, I'm sorry.

PN121

MR CHIN: It's difficult - - -

PN122

THE COMMISSIONER: Well, a conference was held. It was a conference in which the Commission was exercising - and held under the auspices of and exercising, to the extent that it warranted, powers of conciliation, and I just wanted to know what became of certain things because I think it's apropos - it may be apropos at some point. Towards the conclusion of that conference the Commission recommended the parties meet and confer in the following week.

PN123

Now, I've never quite known, though I did make a reference to it in my recommendation in respect of this matter earlier on this year. I presume the fact that we're here attests to this, but for the purposes of clarity, nothing came of that? There was no productive outcome of that - did the meeting take place as requested, as recommended by the Commission? That was never actually, I don't think, formally conveyed to me. I think I may have just surmised that it happened and nothing came of it.

PN124

MR CHIN: Can I take instructions on that, Commissioner?

PN125

THE COMMISSIONER: Yes.

PN126

MR CHIN: My instructions are, and in my submission the evidence will show, I think there was a meeting on 4 May between the parties. My client attempted to discuss the issues of the offering of AWAs but that discussion was not progressed because I think the respondent had - and the respondent's position is, and I think I fairly put this, but Mr Tuck will correct me if I'm incorrect - the respondent's position was because it was before the Commission at that stage, that it didn't see fit to discuss the issue of AWAs at that meeting.

PN127

THE COMMISSIONER: Whatever the case, there was no productive outcome?

PN128

MR CHIN: There was no productive outcome.

PN129

THE COMMISSIONER: And the dispute continued on until it was formalised by way of your later correspondence and subsequently listed and we've had our further iterations and recommendations that followed on from that.

PN130

MR CHIN: That's so, Commissioner.

PN131

THE COMMISSIONER: All right. Sorry, I'll let you return to your submissions, Mr Chin.

PN132

MR CHIN: Unless the Commission has further queries in relation to the matter of jurisdiction at this stage, I propose to just traverse briefly the issues of merits in relation to the application.

PN133

THE COMMISSIONER: Yes. Seeing that we're just moving off the merits consideration for the moment, can I just ask the parties as to their disposition in relation to witnesses in the hearing room? We have no doubt some who would like to remain for the purposes of giving instruction. Are there any other issues that arise in respect to the presence of any persons that may be giving evidence at any stage?

PN134

MR CHIN: Yes, I think for our part we would request that Mr Norris and Mr O'Rance, who are witnesses in the proceedings, be permitted to remain. Mr Norris has - - -

PN135

THE COMMISSIONER: Yes, if they're giving you directions then that's - - -

PN136

MR CHIN: They are. Mr Norris has to leave at some time this afternoon at which point Mr O'Rance will need to take over.

PN137

THE COMMISSIONER: Yes, all right.

PN138

MR TUCK: I object to that.

PN139

THE COMMISSIONER: And why is that?

PN140

MR TUCK: It only needs one instructor. It doesn't need both parties - both Mr O'Rance and Mr Norris to be sitting in here.

PN141

THE COMMISSIONER: Yes. An issue arises as to the overlap though, doesn't it, and the continuity. Look, I take your point, Mr Tuck, but there's an issue, a logistical issue arising about the interaction of one that has to go at a certain time and the continuity of that advice - - -

PN142

MR TUCK: I will be making submissions about the tainting of the evidence in relation to Mr O'Rance if he hears the evidence of Mr Norris.

PN143

THE COMMISSIONER: Okay. Now, you're similarly disposed to requesting one of your witnesses to - - -

PN144

MR TUCK: I'll be asking that Mr Baden be allowed to remain here and all other witnesses ought to be directed not to be here.

PN145

THE COMMISSIONER: All right. I'll ask Mr Chin just to seek instructions in relation to the issue that Mr Tuck - sorry, to seek instructions as to any potential issue that he sees, but - - -

PN146

MR CHIN: If Mr Tuck has a difficulty - if Mr Tuck's difficulty is limited to Mr O'Rance's presence while Mr Norris gives evidence, I consent for Mr O'Rance to be excluded from the courtroom for that period, if that allays Mr Tuck's concern.

PN147

THE COMMISSIONER: Is that the focus of your concern, Mr Tuck?

PN148

MR TUCK: Yes.

PN149

THE COMMISSIONER: Would that allay your concern in that respect?

PN150

MR TUCK: Yes, it will. Yes, it does. I won't press the objection.

PN151

THE COMMISSIONER: Yes, okay then good. Well, let's continue.

PN152

MR TUCK: Commissioner, rather than now deal with the issues about - - -

PN153

THE COMMISSIONER: Yes, you're going to raise with me whether you can put your jurisdictional argument, are you?

PN154

MR TUCK: I thought it might be convenient that that happen now.

PN155

THE COMMISSIONER: Well, I was going to raise the issue but I'll see what Mr Chin has to say about it. There is some - I have to say, some degree of compartmentalisation in this that might afford it as a practical opportunity rather than leave it all to the end then to come back to jurisdiction and the merits again, but Mr Tuck, do you have an objection to that approach?

PN156

MR CHIN: Mr Chin.

PN157

THE COMMISSIONER: Sorry. I'm of course going to say this for the next two days and I'll never learn.

PN158

MR CHIN: On the basis that it's not to be a - as I think the Commission has already determined, a preliminary issue to be determined, I have no objection if the Commission determines it appropriate to hear a reply at this stage.

PN159

THE COMMISSIONER: So that will just align us, that's all, but it's not for the purposes of segmenting the proceeding and making a separate determination.

PN160

MR CHIN: No.

PN161

THE COMMISSIONER: It's simply the sequencing of the submissions. So thank you, Mr Chin. You'll notice I got it right.

PN162

MR TUCK: If the Commission pleases, I would seek to respond to the two limbs on which the union presses for its relief. Now, first the union relies on Section 111AA. Now, as I understand the argument that's been put, it's that the Commission has before it a matter by way of a private arbitration and that the matter is brought before the Commission not under Section 99 but effectively under the original Section 170NA and then through that to Section 111AA and through that recommendation in the past to a clause in the recommendation made by the Commission, which is a dispute resolution clause, which if it was being considered under Section 170LW, would be a private arbitration clause and empower the Commission, by reference to Section 89B, to hear such a dispute over the application of the agreement in which that clause sits. Now, that's - I don't mean to be too convoluted, but that's as I understand the way in which the union says that the Commission has jurisdiction.

PN163

And secondly, it relies again on Section 170NA as putting before the Commission a matter seeking the Commission to exercise its conciliation powers. And take the first proposition. Section 111AA is quite specific in its terms and in my submission there's a sleight of hand in the argument of the union. It does make a leap and it doesn't address a fundamental distinction between 170LW and the dispute resolution clause where the parties agree and it is important that the parties agree.

PN164

Now, there's no dispute about the private arbitration case and what it says and the rights the parties place in the Commission, those private arbitration powers, and that's done by the agreement of the parties. It's done under Section 170LT(8) which requires a dispute resolution clause, and it is supported by Section 170LW and it's important then that the powers the Commission has are then acknowledged by reference of Section 89B.

PN165

That's how the Commission has its power to deal with matters of private arbitration under a dispute resolution clause about a dispute concerning the application of the agreement. It is specifically limited to those types of disputes because it relies on the language of Section 170LW. To the extent that it goes beyond that, it doesn't have power - the Commission does not have power to deal with that type of dispute because it is tied to Section 170LW. Section 111AA, the consent of the parties is to place the matter in dispute before the Commission. That is the consent of the parties.

PN166

Now, what the union doesn't address and cannot address is that that clause sits within that recommendation made by the Commission, not by the parties and they purport to say the parties agreed. Their agreement to place a matter in dispute before the Commission and abide by its recommendation, they have implicitly agreed to abide by a dispute resolution clause if the Commission chooses to make a recommendation which includes such a clause.

PN167

Now, in my submission that is fundamentally a misconception of Section 111AA. Now, I understand that the circumstances in which the Commission dealt with this matter were somewhat unusual, but at the end of the day the Commission in exercising powers of conciliation under Section 170NA, if the parties request the Commission to conduct a hearing and make recommendations about a particular aspect on which they are unable to reach agreement, they are unable to reach agreement - they place that matter before the Commission, agreeing to be bound by the recommendation.

PN168

Now, you can't have it both ways. You can't say, "We are unable to reach agreement about something," and then ignore that language of the section and then say, "The parties agree to be bound by this dispute resolution clause" in which they would invest in the Commission powers which it does not otherwise have, private arbitration powers. In my submission that is just fundamentally misconceived. The Commission simply does not have power or jurisdiction to have any hearing in relation to this matter. It does not have jurisdiction to sit today to deal with this type of complaint.

PN169

The recommendation by consent is the Commission's recommendation. It is not the parties' recommendation. It simply just isn't the union's recommendation. It is not Jet Care's recommendation. It is the Commission's recommendation, and the Commission is constrained by Section 111AA to make recommendations about a particular matter in dispute. And in my submission it cannot give to itself, in exercising that power, a power of private arbitration which requires a further consent of the parties to agree to that process.

PN170

That simply cannot happen, in my submission, because the constitution does not provide for the Commission to invest itself with powers to determine disputes in a final manner, which is akin to a judicial power, and we've looked at the private arbitration case and it - I would like to, and I understand the Commission has a copy of the case in front of it.

PN171

...so far as concerns arbitrated provisions with respect to dispute resolution procedures, it should be ...(reads)... to the extent that it purports to confer judicial power on the Commission or anyone else.

PN172

And that goes on, in paragraph 30:

PN173

There's a significant difference between agreed and arbitrated dispute settlement procedures.

PN174

And it goes on:

PN175

As already indicated, the Commission cannot by arbitrated award, require the parties to submit ...(reads)... commits power to make determinations of that kind exclusively to the Courts.

PN176

Now, paragraph 34, to which the Commission has been directed, says:

PN177

The parties to an industrial situation are free to agree between themselves as to the terms on which they conduct their affairs.

PN178

But the matter before the Commission is not that the parties have agreed to have the Commission privately arbitrate any dispute over the recommendation. The only construction under Section 111AA is that the Commission has given itself that power. There is no agreement by the parties to that effect, notwithstanding the circumstances in which the Commission is encouraged to make a recommendation in those terms. Section 111AA simply does not allow that process to take place. Section 111AA says:

PN179

The parties place before the Commission a matter which they cannot determine between themselves -

PN180

matters they have not agreed. And then the Commission makes the recommendation. The Commission moves to say, "This is my recommendation as to how you should resolve your dispute." And the consequences of that are industrial. The only consequence of not complying with the recommendation are in relation to the termination of bargaining periods. That is the only remedy or the only place in which a recommendation, a failure to comply with a recommendation, sorry, is relevant in the Act.

PN181

There is no other means to enforce a recommendation and by that, that means in my submission that the Commission cannot then reserve to itself a power which it doesn't have under the Act. It cannot, by recommendation, give to itself a power to determine matters and it is not analogous to a private arbitration, it simply is not.

PN182

The fact that this matter arises in the way that it does, and it refers to a clause which would otherwise fit within a private arbitration under Section 170LW, doesn't overcome the fundamental problem. It is a fundamental problem that this is a clause inserted on the recommendation of the Commission, not the parties, and it cannot be a clause inserted by the parties. And to the extent that it's not inserted by the parties, it must be, in my submission, properly characterised as the Commission reserving to itself extended powers which it does not otherwise have and therefore it is increasing the powers of the Commission, which is impermissible and is constitutionally invalid.

PN183

And this is not a small matter, in my submission, Commissioner. This is fundamental. Simply to allow the Commission to enforce its own recommendations is simply a power it is not envisaged to have under the Act and the recommendation is the recommendation - I don't want to repeat ad nauseam. It is your recommendation, Commissioner. It is not the parties' recommendation and that is a fundamental problem which, with all due respect, the union cannot overcome, and so it ignores it. It's just sleight of hand, says this is analogous to Section 170LW, the private arbitration case, the Commission has power under the private arbitration case, the parties have agreed to be bound, but that's simply not true.

PN184

You can't make that analogy because this is not the parties agreeing to be bound at all. This is the Commission making a recommendation. The parties agree to be bound by the recommendation. Whether they honour that obligation to be bound or not can only have a consequence industrially or under - as a matter to be considered in whether or not to terminate a bargaining period. It's not otherwise enforceable and the Commission can't enhance its own powers to police compliance with its recommendations. That is wholly inconsistent with the Act. Now, in my submission that is a matter which just simply cannot be overcome.

PN185

Now, that the parties at one stage may have encouraged the Commission to go down that path ultimately is irrelevant. At the end of the day, the Act is what it says. The language of Section 111AAA is what it is and the parties' behaviour in a previous matter ultimately doesn't matter a jot as to whether or not the Commission has jurisdiction. That the parties thought that they might have been agreeing to a dispute resolution procedure and the Commission could enforce it simply doesn't matter a jot. It's not a merits argument; it's a fundamental question of whether the Commission has jurisdiction. And, in my submission, it's plain; it simply does not.

PN186

Now, the second limb is - I will provide a copy in due course, Commissioner, but if I just can go to the decision of Isaac and Rich JJ at page 213. And this is uncontroversial, in my submission, about the nature of conciliation.

PN187

And the Commonwealth power of arbitration must be exercised by awards so as to settle the dispute ...(reads)... even though the cause of the quarrel is not one to be granted by either disputant.

PN188

And more recently the High Court in the Crown v Baines and Others ex-parte Cadbury Schweppes Australia, which is a decision of 1984 reported in Volume 159 in the Commonwealth Law Reports at page 163 - I do have a copy of this case, Commissioner. I ask if the Commission can go to page 176. It's the decision of Brennan and Deane JJ. Brennan J as he then was. And I read first from the sentence beginning:

PN189

The Commission's conciliation functions involve and are directed to assisting the prevention or ...(reads)... and involve the making of binding awards which are not consensual in their nature.

PN190

Now, Section 111(1)(b), in my submission, is clearly a power directed to the settlement of a dispute, not by the encouragement to reach that by amicable agreement, not by persuasion. It is an order and it is - in my submission, it's not a power available under conciliation. And the Commission has never said that it was. And the powers under Section 111(1) are subject to Section 111(2) which says, "Unless the context otherwise requires".

PN191

So, in my submission, the context of Section 170NA - by necessary implication it means that a power to make an order is inconsistent with the power of conciliation and the concept of conciliation to reach agreement. And to then encourage the Commission to ignore that situation and simply run a hearing, that is conduct a hearing with witnesses, cross-examination for the purposes of making findings and then to make a recommendation and direction, in my submission, is simply inconsistent with the nature of conciliation under Section 170NA.

PN192

It involves ultimately a quasi determination of the matter. It leaves no room for the parties - certainly for the parties to reach any agreement. It is simply putting before the Commission in a manner which it is not entitled to do an arbitrated matter, invite the Commission to make a direction or recommendation, which is effectively to resolve the matter, having gone to the expense of having - conducting a hearing into the matter which, in my submission, is inconsistent with what the powers under Section 170NA envisage and is inconsistent with the conciliation powers as understood by the Commission.

PN193

And to do so, in my submission, would be - if not beyond the power of the Commission, it certainly would be an improper exercise of the discretion of the Commission in exercising its conciliation powers under Section 170NA. And Section 170NA, if the matter being put before the Commission now is a new dispute, that is if the union is saying that we have notified the Commission of a matter arising under Part VIB of the Act, then the Commission has not conciliated in relation to that matter, in my submission.

PN194

There has been no conciliation in relation to that matter. And what's been - the Commission has been invited to do is simply as a construct use that provision to invest itself to arbitrate on a matter which is not contemplated by Section 170NA, in my submission, and is not a means to circumvent the plain language of the Act. And, in my submission, the ability of a company - of an employer to offer an Australian Workplace Agreement resides in Part VID.

PN195

And, in my submission, I will be making the submission that a matter over whether or not a party can or can't make offers of Australian Workplace Agreements and file the same is not - as it sits in another part of the Act does not arise as a matter for conciliation under Section 170NA, which governs the making of the collective agreements, whether they be Section 170LK agreements or Section 170LJ agreements or LS. They are not - it does not extend to making recommendations or directions about whether or not a party has the ability under a different part of the Act to offer a statutory agreement.

PN196

And, in my submission - I've made references in our outline to the objects of the Act which, in my submission, do not permit the limitation or the making of an order or direction which restricts the freedom of a party to make use of the Act in terms of how it makes its agreements and doesn't restrict an employee's ability to accept such an offer if that employee wishes to do so. It doesn't restrict the company and the employees without the union reaching a collective agreement under Section 170LK, if that's what they choose to do so.

PN197

And the Commission ought not to restrict the parties' other entitlements, including the employees' entitlements, to accept an AWA, for example, or to reach an agreement without the union. And what the union is seeking to do by this recommendation is effectively shut out those other alternatives and deny the freedom of choice to the employees. And it's effectively saying the company is locked into dealing with us for this period and the employees, whether they want to or not, "Well, we've subjugated their rights to our interests". And, in my submission, that's simply not available.

PN198

And if I can just make it plain, the company does not consent to any arbitration if it's a renewed application under Section 111AAA to placing the matter before the Commission. That consent is not given. If the Commission pleases, that is our outline.

PN199

THE COMMISSIONER: Why do you make that last submission? Is that a submission in respect to the particular point by the applicant in this matter?

PN200

MR TUCK: I just want to make it plain, because the applicant has said that, as an alternative argument, there's a dispute - we're seeking to rely on the conciliation powers, and then we go back to Section 111AA, and I just wanted to make it plain that there is no consent from Jet Care to having this issue determined by way of recommendation made by the Commission. I'm not sure whether it directly arises, Commissioner.

PN201

THE COMMISSIONER: Yes. Sorry.

PN202

MR TUCK: That, essentially, is the position, that Section 111AA does not allow the Commission to expand its powers. Having made the recommendation, in my submission the Commission is functus. That's the end of the Commission's role. It's functus officio. It's done its task. It doesn't have a continuing role. It doesn't have the role to police its own recommendations. And having been functus, it can't be enlivened by - it has to be enlivened by some new application. There has to be some new way of putting the matter before the Commission.

PN203

And whether a party agrees - follows or does not follow the terms of recommendation on the view of one party or another ultimately does not enable the Commission to review that behaviour, that conduct. Now, Jet Care's position, fundamentally, is the recommendation has been complied with and it intends to continue to comply, but it does allow for the offering of AWAs or Section 170LK agreements. It goes not constrain those obligations under the Act but, as a matter of jurisdiction which can't be ignored at this time, it simply cannot be ignored, we are duty bound to say that the Commission simply doesn't have power to entertain this type of application.

PN204

The Commission doesn't have that jurisdiction, and it is fundamental and, in my submission, the fundamental nature of those problems that will renew the application ought to be dealt with and resolved before we embark on a process of hearing two days of evidence because it does go to a fundamental issue. In my submission, it is quite - and I don't want to sound that overly confident, but it is quite plain, in my submission, that the Commission simply doesn't have jurisdiction in this matter.

PN205

THE COMMISSIONER: I asked the question of Mr Chin, Mr Tuck, and that is, does the decision of the Full Bench in Sensis have any application in respect of the submission in respect of the exercise of conciliation under Section 170NA(1) of the Act in this context?

PN206

MR TUCK: As I understand Sensis, it goes to the recognition of certain powers in conciliation and, to the extent that it recognises the ability to make directions, it is relevant to Section 170NA, but what it doesn't do, and what CPSU v Telstra does not do, is say that the Commission has power under Section 111(1)(b) when exercising conciliation powers. It does not envisage and, in my submission, quite plainly, because the High Court does not envisage this and Section 111(2) does not envisage the Commission making orders and determining matters in conciliation, because that is simply inconsistent with what the High Court has said conciliation is.

PN207

It's not the determination of an outcome imposed upon the parties. It's the facilitation of an agreement and there are any number of decisions in the Commission consistent with that view. And it's one view in which - it's a discretionary matter in why the Commission, in some matters, ought not even make recommendations - - -

PN208

THE COMMISSIONER: Well, that goes to the question I just wanted to ask you. I think Mr Chin's and ALAEAs submissions were that they sought relief by way of an order, a direction or a recommendation. Now, you're telling me, in your submissions, those actions which are substantive and arbitral-like have no applicability in relation to Section 170NA(1), but the submissions of the applicant in this matter are also that I make recommendations which are, presumably, not in that offensive category, if you like.

PN209

MR TUCK: Well, the Commission is at liberty to make a recommendation about its view on how a matter best be resolved. We don't need three days of hearing for the Commission to come to that conclusion in a conciliation context. We could go off the record have that conciliation. We put our positions and the Commission could make such a recommendation. We don't need to have a protracted hearing to determine those sorts of matters. The Commission can express a view and, in my submission, that's the manner in which the Commission ought to deal with an application of that kind. If the Commission was to say, "I have" - - -

PN210

THE COMMISSIONER: The application is - I take your point. But the application that is before me is of a different - is of a wider scope - - -

PN211

MR TUCK: Yes, which I - - -

PN212

THE COMMISSIONER: - - - and that's why we're here.

PN213

MR TUCK: Which, in my submission, is fundamentally flawed.

PN214

THE COMMISSIONER: Yes. Okay.

PN215

MR TUCK: I'm not sure if I can take it any further, Commissioner, but I do invite the Commission, again, to make a determination in relation to whether it has jurisdiction before embarking on two days of evidence. If the Commission pleases.

PN216

THE COMMISSIONER: Thanks, Mr Tuck.

PN217

MR CHIN: I take by that that - and, consistent with our submissions, there is no jurisdictional challenge to the Commission's power to make a recommendation so far as they are sought as an alternative in the application under Section 170NA.

PN218

MR TUCK: I didn't make that plain but, in my submission, to conduct a hearing is inconsistent with that process, that that is simply unnecessary.

PN219

THE COMMISSIONER: Yes, because the - see, that is why I said - I was careful in what I said, is that the reason we're here is because the application that is before me is much more comprehensive than that, and I'm being asked to do things other than that. I'm being asked to exercise powers of - powers that are arguably arbitral in character. I mean, that's why we're here.

PN220

MR TUCK: If the Commission determines first that it has no jurisdiction and then determines that, "Oh, I can, of course, conciliate under Section 170NA", that would influence the manner in which we conducted our case, whether we called any evidence at all.

PN221

THE COMMISSIONER: We started with that this morning, and I - well, I don't know whether, Mr Chin, you want to take that matter further than we've already discussed it this morning or not.

PN222

MR CHIN: Well - - -

PN223

MR TUCK: Can I just make it plain, Commissioner, and I don't want to be - I do - - -

PN224

THE COMMISSIONER: Just let Mr Chin finish.

PN225

MR TUCK: I do make that submission that it ought to be dealt with again first, before we embark on a hearing.

PN226

THE COMMISSIONER: Yes. Mr Chin?

PN227

MR CHIN: Thank you, Commissioner. My client does seek the exercise of arbitral powers in the nature of private arbitration powers, however, my client is always, and has always been, willing to engage the respondent in an effort to resolve this issue. In fact, it tried and was rebutted, in my submission.

PN228

THE COMMISSIONER: This is on occasions, presumably, other than the meeting that took place in respect of my recommendation at - - -

PN229

MR CHIN: Yes. Well, I'm specifically referring to that occasion.

PN230

THE COMMISSIONER: I see.

PN231

MR CHIN: So my client's position is that it is, and has always been, willing to engage in a constructive dialogue about this difficulty. Now, to the extent that Mr Tuck wishes to re-agitate the application, I would resist the application and submit that your Honour's determination ought not be - there's no basis to cavil with your Honour's determination in terms of resolving the matter as to jurisdiction as a preliminary issue, but I don't anticipate any difficulty if the Commission would wish to encourage the parties to engage in some dialogue this morning, but not on the basis of the jurisdictional issues determined as a preliminary matter, consistent with the Commission's determination earlier this morning.

PN232

Can I just say, by way of brief response, in relation to the issue of jurisdiction, to the extent that the Commission is entertaining revisiting this application - - -

PN233

THE COMMISSIONER: Yes. Can you just tell me what you mean by revisiting this application?

PN234

MR CHIN: That is the application to hear this matter as a preliminary jurisdictional matter.

PN235

THE COMMISSIONER: You mean whether I'm going to revisit the matters that were discussed earlier on this morning.

PN236

MR CHIN: Yes. As has been asked of you, as I understand it.

PN237

THE COMMISSIONER: Yes.

PN238

MR CHIN: It's been said that the Commission is being asked to give itself the power to finally determine the issue before it. But the parties have not agreed.

PN239

THE COMMISSIONER: Just to clarify what's going on here. Is this effectively submissions in reply in respect of the - - -

PN240

MR CHIN: It is.

PN241

THE COMMISSIONER: It is. Okay. So that's where we are. And I will give the same opportunity to Mr Tuck at the conclusion then, just to even it out, if you like. But I think we've adopted a format here that is somewhat unusual and I just - I don't want to put people at a disadvantage. This begs an issue about whether or not in submissions in reply - in the closing submissions we revisit all of this as well, but I will leave that to the parties.

PN242

MR CHIN: Well, I will be brief.

PN243

THE COMMISSIONER: Look, I think as a matter of informality if you want to make some reply to Mr Tuck, Mr Chin, you can do that, but as a matter of informality if Mr Tuck consequently says, "Look, there's just one point I want to address", I will let him do that as well.

PN244

MR CHIN: Yes, as the Commission pleases. But, briefly, in my submission, the Commission is not dealing with a situation where the parties are asking it to invest itself with power. The parties had given the Commission power in conjunction with the provisions of the Act. The recommendation would not have been, and could not have been, made if there was not a prior jurisdictional fact to the satisfaction of the Commission.

PN245

That prior jurisdictional fact is that the parties consent to comply with the Commission's recommendation. It's a prior agreement of the parties to comply with the terms of the recommendation. That is a jurisdictional fact upon which the recommendation is made.

PN246

THE COMMISSIONER: It's one of the several jurisdictional facts upon which the Commission may make a recommendation by consent without - I think the matter that you will need to address, though, in reply is the more precise question and that is do the parties - sorry, does the jurisdictional fact that the parties have - inconformity with or in accordance with Section 170 - sorry, in accordance with Section 111AAA consented to comply with the recommendations of the Commission.

PN247

Does that jurisdictional fact, of the several required to exercise that recommendation - by that consent does that establish - enable the Commission to establish by the creation - or by the making of that recommendation enable it to establish a jurisdiction for itself in respect of the future compliance with that recommendation?

PN248

MR CHIN: In circumstances where the parties' agreement to comply with the recommendation in substance in the circumstances of this recommendation is a prior agreement to comply with a provision; that matters in dispute about the recommendation would be submitted to the Commission for its final determination. Then the Commission - then the parties have submitted the issue by its agreement to the Commission for its final determination. It's not a matter where the Commission has, of itself, created the power to deal with this question to finality.

PN249

Mr Tuck says there is a need for further agreement of the parties to submit this dispute in order that the Commission have jurisdiction. But, in my submission, that agreement has already been given. otherwise the consent recommendation could not have been made in the first place. That is the prior jurisdictional fact is that the parties have agreed to submit this question, a question in dispute about the application of the consent recommendation, to the Commission for its final determination.

PN250

That is the prior jurisdictional fact upon which that recommendation proceeded. Now, on that basis the parties have agreed to be bound by the Commission's determination. The submission that the parties - notwithstanding the parties' encouragement of the Commission to go down this path being irrelevant, in my submission, it is a most unattractive proposition, Commissioner. The consent is not only to place the dispute before the Commission, but the consent is to comply with the Commission's recommendation in its term. And that includes a power of the Commission to finally determine the rights and liabilities of the parties under that consent recommendation.

PN251

Now, depending on the terms of other consent recommendations, the Commission may not have an ongoing policing role, as I submitted earlier. That is, the parties may not have agreed pursuant to the recommendation to submit any matter in dispute to the Commission either for its final determination or any determination at all. But in this case that fact applies. As to the issue of conciliation powers, the authority cited by Mr Tuck is not authority dealing with the present terms of the Workplace Relations Act.

PN252

It's established that the Commission has power to make mandatory directions pursuant to its conciliation powers. Now, we do not seek by our application to make - on the basis of the conciliation powers to finally resolve any matter in dispute in relation to the negotiations for the certified agreement. What is sought is to require the respondent to abide by what it has agreed to do in the context of those negotiations. It doesn't finally determine any substantive industrial matter. It is merely a temporal - it is merely seeking to require the respondent, in a temporal sense, to comply with what it has agreed to do during the course of the negotiations.

PN253

Similar, in my submission, to the direction at issue in the High Court case of Re Media Entertainment and Arts Alliance, ex-parte the Hoyts Corporation (1993) Volume [1993] HCA 40; 178 CLR 379. I don't take the Commission to it at this stage, but it's a similar result that's being sought by virtue of the application under the conciliation power in this case. That is to preserve, in effect, the status quo. The status quo, having been agreed to by both parties. It's not a substantive determination of the industrial issue at hand between the parties and that is the negotiation of a new certified agreement.

PN254

There is, on that basis, no reason why the Commission, in its discretion, would not for a temporary basis, that is to the life of the present consent recommendation, require the respondent to abide by the terms to which it so clearly, in our submission, agreed. Those are my brief submissions in reply.

PN255

THE COMMISSIONER: I will just take you back to - could I just take you back to paragraph 18 of your written submissions of 30 June. And I think this is the paragraph I was attempting to find earlier on in relation to a submission by Mr Tuck. And I'm just wondering if you could go to paragraph 18 and if you could just explain to me - flesh out that submission to me a little bit more.

PN256

MR CHIN: Yes. This is a variation on the theme of the application proceeding upon conciliation powers. In the alternative to a straight application based on conciliation powers invested in the Commission by 170NA - in the alternative it's submitted that this is an appropriate application for consent recommendation under Section 111A to be made; that is on the basis of this submission. Mr Tuck says that the respondent does not consent to submit this issue to the AIRC for its determination.

PN257

However, the parties' agreement to consent by the present consent recommendation, the terms of that recommendation, include, as I've submitted before, an agreement to submit issues in dispute to the Commission for its final determination as well as providing, in my submission, jurisdiction for the conduct of a private arbitration. That consent also, in effect, places this application before the Commission by the consent of the parties to make a recommendation under Section 111AA. That is, there is no requirement for the respondent to provide its consent to submit this matter for the determination of the Commission under Section 111(1)(a) - AA because it has already done so.

PN258

THE COMMISSIONER: So you're saying you can - you're arguing that you can pre-consent to the exercise of - you can pre-consent to the relevant jurisdictional facts to be established for the purpose of the Commission to make a recommendation by consent?

PN259

MR CHIN: Well, I'm not sure about pre-consent, but the respondent has already given its consent to submit to the Commission any matter arising in dispute concerning the application of the consent recommendation. It has given that consent by virtue of clause 14 of the consent recommendation.

PN260

THE COMMISSIONER: Mr Tuck - - -

PN261

MR TUCK: I rarely rise during someone's submissions - - -

PN262

THE COMMISSIONER: I know. You're going to get your chance.

PN263

MR TUCK: - - - but you just can't ignore - it might help if we don't ignore Section 111AA, that there is no consent to anything other than that you will make a recommendation. It just ignores the language to just simply pretend it doesn't exist.

PN264

THE COMMISSIONER: Thanks, Mr Tuck, but we'll let Mr Chin finish his submission and explaining his submission.

PN265

MR CHIN: Well, the submission proceeds on the basis that, by the terms of the current recommendation by consent, the respondent has already provided its consent, agreed to submit this question to the Commission for its determination and, on that basis, as an alternative to the exercise of conciliation powers under Section 170NA per se, it's submitted that this matter may be dealt with by way of a further recommendation by consent under Section 111AA, on the basis that the consent to submit this question has already been provided by the respondent in the terms of the recommendation itself.

PN266

I put that submission no higher. The primary ground upon which the conciliation powers is sought to be invoked is on the basis of Section 170NA directly as a continuation, in effect, of the conciliation powers in relation to the matters at issue which gave rise to the consent recommendation in the first place. As the Commission pleases.

PN267

THE COMMISSIONER: Good. Thanks, Mr Chin. Mr Tuck?

PN268

MR TUCK: Just two matters. You just can't ignore Section 111AA. You just cannot simply pretend that the parties agreed to a dispute process - a resolution of dispute process, and then agreed that that process would be part of any recommendation by the Commission. It is a torturous way to read Section 111AA and it is not permissible. The language of Section 111AA says:

PN269

The parties can request the Commission to conduct a hearing and make recommendations about aspects of the matter on which they are unable to reach agreement.

PN270

And we will abide by the recommendations of the Commission. The Commission then spends the taxpayers' money, in the interests of facilitating an outcome on which the parties have done no more than indicate that they will be bound. There's no consequences if they ignore it. This is just an industrial reality that we will be bound. We wouldn't ask the Commission to help us on this matter. They don't have any agreement. They don't say, "And, by the way, insert this as part of your recommendation and we'll be bound by that as well." That's not what happens.

PN271

The Commission has the power. The Commission makes the recommendations. The parties don't make any recommendations. The parties don't have some sort of side deal which they insert into the agreement for the recommendation. That's not what happens. That's not what Section 111AA. You can't get away from that. You can't say, "Oh, by the way, you can't ignore the agreement of the parties because they agreed to insert something in the recommendation." It's not their recommendation. It's the Commission's recommendation and, at the end of the day, that's the end of the matter, in my submission.

PN272

There's no private arbitration analogy here. This is the Commission making a recommendation. Private arbitration contemplates the agreement, a specific agreement by the parties to place before a third party the ability to resolve its disputes, and the only basis upon which that resolution is enforceable is either under a statute or under contract. And that doesn't exist here. How can - you can't have - there's no statutory power, in my submission, to allow the Commission to impose on the parties a quasi-agreement, because they've agreed to have a resolution that, therefore, you can take that agreement to agree to a further private arbitration.

PN273

That simply is a leap which is not available. You can't make that leap. You just can't. And having not been able to do so, you're not talking about private arbitration. It's an analogy that just goes nowhere. And, ultimately, the Commission is left with, "Well, I've made a recommendation." The parties either agree to - had agreed to comply with. If they don't comply, well, ultimately, there aren't consequences apart from industrial consequences. If we, in relation to today, simply got up and walked out, there are no consequences in relation to this.

PN274

There might be an embarrassment and difficulty in engaging the Commission in the future, but there simply - there's no consequences if we just get up and walk out and continue to offer AWAs. And that's because it's recognised by the Commission and the Act, the Commission does not police recommendations by inserting into its own recommendations this police power to enforce them. The Act doesn't do it, and the Commission can't do it unilaterally. The Constitution says it can't.

PN275

And you can't take this situation where the parties came along and had this term of a recommendation which they thought might resolve it and take that and elevate it to some sort of agreement that's enforceable under Section 111AA. It simply is not. That is not what Section 111AA says. It is the Commission's recommendation, and that's the end of the matter. And what's been contemplated by this process is an absurd, if you take it to its extreme, that the Commission might say, for example, be making a recommendation about the parties, the way they address a particular clause that they're fighting over and say, "Look, and by the way, having agreed for me to make that recommendation, I'm going to include in it my recommendation. If you can't agree it, I will determine the outcome and, effectively, arbitrate your agreement for you."

PN276

I mean, that's just absurd. But that's the proposition and, ultimately, effectively, what the union is saying, that the Commission can do that, the Commission has power to reserve to itself that sort of police role, elevate itself into, effectively, determining by arbitration a certified agreement, and that simply can't be right. And these are substantive issues and, also, the invitation to make mandatory directions to require a party to abide by a recommendation, described as mandatory directions to abide, effectively, to make an order, is described as "not finally to be resolving a matter".

PN277

I'm not quite sure what that means - that arbitration, effectively - what's been simply misquoted, with all due respect and simply relying on power of the Commission to make directions and the manner in which directions are made, has been elevated and been put before the Commission as, the Commission has power to make an order. And if the law says it doesn't have power to make an order because it's inconsistent with conciliation, well, make a direction which has the effect of an order. That's not what the Act says. That is not the way you read the powers under Section 111(1).

PN278

Those powers are for specific reasons, they have specific purposes, and you don't make a direction and disguise an order as a direction. That's not what you do. And in conciliation you don't run - in my submission, you don't conduct hearings which have the effect of finally determining a matter. That ought not to be what the parties are required to do. And Jet Care ought not to be required to come here and have to put on evidence and cross-examine other people in a conciliation.

PN279

In my submission, that ought not to proceed in that way. The Commission can exercise conciliation in the usual way and Jet Care would participate in such a conciliation, but it would not do so if there was this continuing argument that the Commission has jurisdiction to determine finally whether or not Jet Care can or cannot issue AWAs, and, ultimately, what then is the purpose as is suggested by the union if the Commission was to make a finding in relation to this? I mean, what is the effect of that? Is it effectively that the company can simply ignore it?

PN280

I don't understand - what is the purpose then of inviting the Commission to conduct two days of hearing, or three days of hearing, to make a further recommendation which ultimately isn't enforceable?

PN281

THE COMMISSIONER: I think at last count we were up to 1½ days but, that said, we are re-visiting issues that we have visited before but the issue is - the reason we are here is because we have an application with the Commission to exercise certain powers and the Commission has to determine whether it can exercise those powers and, having not reached a conclusion about whether or not it can exercise those powers, the Commission has to nonetheless have available to it the next step in the event that it did, and that is just a question of proper process and b

PN282

MR TUCK: Well, we might need to seek instructions as to whether we participate in that process, Commissioner.

PN283

THE COMMISSIONER: Well, that is the process we are in at the moment.

PN284

MR TUCK: Well, we would make a jurisdictional objection. I would then need to seek instructions whether we continue to participate in the process of cross-examination.

PN285

THE COMMISSIONER: Yes. But the practical difficulty is on this issue which we dealt with at the very beginning is that I received no advice prior to these hearings that there was a request to segment the jurisdictional - - -

PN286

MR TUCK: I understood our position was plain, that we couldn't have made it, in my submission, more plain in the telephone conversation as I do not understand the basis upon which this is being made and you, Commissioner, then said, "I think it is up to the union to go away and put the basis upon which it seeks to involve the Commission in this process."

PN287

THE COMMISSIONER: Yes.

PN288

MR TUCK: Our position was made. I don't understand how - I still don't understand the basis upon which it can possibly be said the Commission had power to sit here today at taxpayers' expense and conduct this hearing. I simply make the submission it does not and we ought not to be here, and I would have to seek instructions if the Commission is to assume jurisdiction as to whether we continue to involve ourselves in this process.

PN289

THE COMMISSIONER: There has been no assumption of jurisdiction in respect of the claim.

PN290

MR TUCK: We have made objection to the jurisdiction. Whether we participate in this process and spend the money to be here further is a matter that I would have to seek instructions on.

PN291

THE COMMISSIONER: Yes. For your purposes, you are still, despite what we discussed earlier on, ventilating the issue about whether or not we should segment the jurisdictional issue from the merits issue and the cross-examination issues?

PN292

MR TUCK: In my submission, the Commission ought to adjourn, determine that matter, and, if the Commission was to determine it had jurisdiction, that is an appealable matter that we might take further without the need to spend another two days hearing evidence because, in my submission, if the Commission was to assume jurisdiction, we would look at the reasons upon which that did so, but it may be an appealable error which we would then seek instructions on whether or not we would seek leave to appeal that.

PN293

THE COMMISSIONER: Well, you have that opportunity regardless of the short way or the long way.

PN294

MR TUCK: In my submission, why do we then spend two days hearing evidence about matters which ultimately the Commission may have had no jurisdiction to entertain. In a common way, certainly in the civil courts, jurisdictional matters are dealt with up front and determined before the expense of conducting hearings are dealt with, and that happens - - -

PN295

THE COMMISSIONER: Look, we are going over the old ground again. Look, I appreciate your concerns, Mr Tuck. We will adjourn for 10 minutes, and I will encourage the parties to discuss this matter again if they see there is any basis for discussing as to whether or not they want to segment the jurisdiction from the merits issue, and there were some references to the value of any conciliation in respect of this matter. I am not sure whether there is any viability in that ground for discussion either, but we will adjourn for 10 minutes and I would encourage the parties just to discuss at least that preliminary point as to whether they are prepared to segment the two issues and we will reconvene at 10 past 11.

SHORT ADJOURNMENT [10.58am]

RESUMED [11.48am]

PN296

THE COMMISSIONER: Thanks, everyone. Mr Chin?

PN297

MR CHIN: Commissioner, I am sure the Commission, as well as the parties, pleased to hear that the matter has been resolved.

PN298

THE COMMISSIONER: In its entirety?

PN299

MR CHIN: In its entirety, indeed. And it has been resolved in this way: as between the parties, by consent, we wish to, in effect, have the recommendation by consent made on 1 April 2004 ceased to have effect as from this day forward and what, in my submission - - -

PN300

THE COMMISSIONER: How do we actually do that?

PN301

MR CHIN: Perhaps I can - - -

PN302

THE COMMISSIONER: This begs the - that intersects with a lot of the submissions on jurisdiction, but, nonetheless, go on.

PN303

MR CHIN: In my submission, the matter is still within section 170NA, that is, in relation to the making of the consent recommendation. The Commission is empowered under section 111(1)(f) to vary any decision of the Commission. In my submission, the recommendation by consent under section 111AA is a decision of the Commission that may be varied by that power. Alternatively, section 111(1)(p) allows the Commission to make an amendment of any document relating to any proceeding and the amendment which we would seek and submit would have - or give effect to the position of the parties would be for the Commission to, by consent, vary the consent recommendation to substitute the expiry date presently on the recommendation with today's date.

PN304

THE COMMISSIONER: Well, Mr Tuck, what do you say about this, because, again, this has very interesting implications for the submissions that were put to me on jurisdiction?

PN305

MR TUCK: I think the position is from our side of the bar table consistent with the position we put this morning, that the Commission makes a recommendation and, having made that recommendation, that is the end of the matter.

PN306

THE COMMISSIONER: Yes, but that is not - I am now being asked to re-visit the matter for the purposes of variation - - -

PN307

MR TUCK: The position of the union to which Jet Care has given its agreement consent is that, as of today, the understandings between the parties under the consent recommendation made by the Commission will no longer be - either party will no longer be obliged to comply with those as between themselves. Now, if the Commission has a legitimate matter before it today it would be a matter under section 170NA and, from our point of view, all the Commission needs to do is it can make a statement or it can make a general recommendation to the effect that it recognises that the parties have had disagreement in relation to their understanding of the recommendation made by the Commission and the Commission recognises that the parties, between themselves, have agreed that they - either party is no longer bound by those, and you can just state that as a matter for the record and that would not then place the Commission in - - -

PN308

THE COMMISSIONER: But, see, that is all it is.

PN309

MR TUCK: It is a statement for the record - - -

PN310

THE COMMISSIONER: It is a statement of record - it is a statement the Commission records of a position of the parties.

PN311

MR TUCK: And that's all, in my submission, it needs to be. And the only means in which the compliance or non-compliance with a recommendation of the Commission is relevant is in terms of the discretionary matter about terminating bargaining period. And, in my submission, if a statement is made on the transcript to that effect, then the ability for a future Commission to consider compliance or non-compliance in these circumstances is hardly going to be a matter of any weight; where the parties have come before the Commission and made plain a mutual position that neither party is bound. And that may be the easiest way in avoiding any future issues about what power the Commissioner - - -

PN312

THE COMMISSIONER: There are essentially three ways to deal with this and I think you've both mentioned one each. I think, Mr Chin, if I'm correct you're simply saying that I should take such actions pursuant to Section 111 to vary the existing consent recommendation of 1 April 2004.

PN313

MR CHIN: That's correct.

PN314

THE COMMISSIONER: Mr Tuck is telling me that I should do no more than record, by way of statement, an undertaking entered into between the parties that they will no longer observe or seek to have enforced the recommendation of 1 April 2004. The effect of Mr Tuck's approach is that the recommendation of 1 April 2004 remains on foot but the parties have, in effect, distanced themselves somewhat from - for purposes of any future action that might be taken in relation to it.

PN315

Your position is that I should be able to vary the consent recommendation. The only other - of course, the other approach is, and it has an amusing irony to it, that is that the parties could seek a further recommendation by consent to, in fact, deal with the matter between them, which is a dispute about the previous recommendation by consent and seek to have the Commission say that there is no longer any recommendation by consent.

PN316

Now, there are three avenues for that and, to be honest with you, they are three distinguishable avenues. Now, I'm loathe to comment on them because - in any length at the moment because to comment on them would be to take me to issues that are still before me on issues of jurisdiction. I don't want to start to tell you why I can't do Mr Tuck's for various reasons of my construction of the Act, because that would go directly to issues of jurisdiction on the other matter which I haven't determined. Now, where do the parties themselves stand on the three approaches? Is there any agreement on the two approaches that you've put forward at all?

PN317

MR CHIN: Might I have a moment.

PN318

MR TUCK: I can indicate - in relation to Section 111(1)(f) whether it can vary a decision, I'm not satisfied, as I stand before the Commission now, that this is a decision in making a recommendation that falls within that description. In terms of Section 111AA, it would be my submission that it's not appropriate for the Commission to embark on a process as a way of resolving the matter by further recommendation. And a statement, in my submission, is, as I understand it, the process where effectively you're just recording the position of the parties and the Commission indulges - - -

PN319

THE COMMISSIONER: With effect that neither party will seek to rely on the recommendation of 1 April 2004?

PN320

MR TUCK: Yes. Well, we wouldn't consent to Section 111(1)(f) because I wouldn't want to be held to have said that that is a power and invited the Commission to rely on that. I'm not in a position to say that that is an available power. I wouldn't object if my friend makes a submission to that effect, but I'm not going to support that because I simply am not in a position to be satisfied myself that I should properly make that submission to you.

PN321

MR CHIN: Commissioner, could I suggest this course. Out of the three options summarised by the Commission an available course, in my submission, would be to do both the first and the second. That is, to make the statement in the terms outlined by Mr Tuck, but for the avoidance of doubt to make the variation that I suggested.

PN322

THE COMMISSIONER: Let's put it this way then. The parties are somewhat chastened by experience in relation to the prospect of a further recommendation by consent. We will put that one to the side. The issuance of a statement of an agreement between the parties in respect of the recommendation by consent of 1 April 2004 is a matter that doesn't perturb me because it doesn't go to the previous recommendation and it is no more than a statement and doesn't raise any issues of power for me.

PN323

The issue of whether or not I can vary a recommendation by consent would require me to reach a decision that I could or couldn't. So if I was to elect the course of action you're proposing, Mr Chin, I would have to sit down and come to a conclusion that I could, in fact, do what you're seeking me to do. And that would require me examining Section 111AA in the context of the availability of the general powers - or the particular powers of the Commission under Section 111 and do some things that I would have had to have done in relation to the jurisdictional - the thinking in relation to the jurisdictional submissions that were before me.

PN324

MR CHIN: In circumstances, Commissioner, where, as I understand it the respondent, although withholding active consent, would not object in relation to the exercise of that variation power pursuant to Section 170NA, as I understand the respondent's position. So that the Commission would be exercising that power in those circumstances.

PN325

THE COMMISSIONER: You mean, it would be consensual?

PN326

MR CHIN: Well, there would be no objection from the respondent.

PN327

THE COMMISSIONER: Yes, I know, but that - I'm afraid the exercise of power is a matter of jurisdiction that the Commission has to determine for itself. And you may well - the parties may well consent, the parties may well - - -

PN328

MR CHIN: Indeed.

PN329

THE COMMISSIONER: And it matters not.

PN330

MR CHIN: Yes.

PN331

THE COMMISSIONER: I still have to determine it no matter what. You can have a contested position, you can have a joint position. You could have come before me today with a joint position on the Section 111 issue and I would still have had to have gone through the entire jurisdictional issue.

PN332

MR CHIN: Of course. In any event, the resolution is predicated on the basis that my client intends to pursue negotiations for a certified agreement. And, as I understand it, any salary increase provided for in the current recommendation by consent to date remains and is not to be disturbed. But from this day forward the obligations imposed by the recommendation by consent upon the parties would cease to operate, in effect. The parties would not - and would release a document having to comply with those obligations.

PN333

MR TUCK: Just in relation to the matter of the salary increase, that is a matter that we reserve our position in respect to. And we're not suggesting anything other than that. It's just we haven't given consideration to that. It's an obligation that we made pursuant to a recommendation. Whether we continue or not continue is a matter that we can, as an industrial matter, consider. But I don't put it any higher than that. Ultimately it's not really - it's not a question for the Commission in any event.

PN334

THE COMMISSIONER: Well, it may not be a question for the Commission, but it might be a question about what the parties have agreed. Would the parties like five minutes to discuss this? Rather than have it at the - - -

PN335

MR TUCK: Yes.

PN336

THE COMMISSIONER: I think you might need it. We will adjourn for just five minutes.

SHORT ADJOURNMENT [12.02pm]

RESUMED [12.07pm]

PN337

THE COMMISSIONER: Good, thanks, everyone.

PN338

MR TUCK: There is no difficulty between the parties on that issue, your Honour.

PN339

THE COMMISSIONER: So what is the - - -

PN340

MR TUCK: There is no difficulty in relation to the three per cent increases. The position as first articulated by Mr Chin is the position.

PN341

THE COMMISSIONER: So we still quite haven't determined how we're going to give effect to this. As I said, I'm at ease with the proposal by the respondent in this matter because it doesn't give rise to any issues for determination. But, Mr Chin, the proposal you've put to me does require me, before I embarked on that course - you've asked me to do both yours and the other proposal - it would require me to come to a view as to the - it will require me to come to a view as to some of the types of threshold jurisdictional issues that were raised in the - - -

PN342

MR CHIN: It would, to this extent. It would to a relatively uncontroversial extent, in my submission, that is that the - - -

PN343

THE COMMISSIONER: I know what you're telling me. I know - you're basically telling me, "Well, why don't you do it because no one's going to appeal you?" We're simply here - - -

PN344

MR CHIN: But even on the - not so much, Commissioner.

PN345

THE COMMISSIONER: It's a bit harder than that.

PN346

MR CHIN: Not so much on that basis, but on the basis that the issue of conciliation powers that the Commission has presently under Section 170NA, as I understand it, is uncontroversial, that is, the Commission can exercise conciliation powers under Section 170NA in these proceedings as an extension of or an emanation of the making of the consent recommendation in the first place.

PN347

THE COMMISSIONER: Yes.

PN348

MR CHIN: Now, the Commission only then needs to be satisfied that the consent recommendation is a decision of the Commission for it to have the power to vary it under 111(1)(a).

PN349

THE COMMISSIONER: It really goes to this issue of whether or not a consent recommendation, once made, can be subject to any other change or variation without the same jurisdictional prerequisites having to be established as jurisdictional facts.

PN350

MR CHIN: It's - - -

PN351

THE COMMISSIONER: See, this is a very critical issue. If I vary - by varying a recommendation by consent, how does the Commission do that in the absence of the very jurisdictional prerequisites or preconditions required of the section and subsection?

PN352

MR CHIN: Well, because for this reason, because the Commission is not being asked to make another consent recommendation. Therefore, the jurisdictional requirements don't apply for the making of such a recommendation. The Commission has power - - -

PN353

THE COMMISSIONER: Yes. This raises the very issues in the - this is adjacent to the very issues before me on a jurisdictional issue about, can the Commission, by its own volition in making a recommendation, alter a consent recommendation which was, itself, the subject to some jurisdictional prerequisites, such as the express compliance of the parties in the other three or four jurisdictional elements of Section 111(1)(a), (b) and (c)(i) and (c)(ii) of the Act? See, this is what I mean. We don't need to get into this in great detail but this is what I meant by saying if you want me to deal with this, I'm happy to deal with it, but I'll have to go through an exercise to determine whether I can do it, first of all.

PN354

MR CHIN: Might I just get instructions?

PN355

THE COMMISSIONER: Yes.

PN356

MR CHIN: I understand the Commission's concern about the jurisdictional issues attendant to the applicant we've made for a variation. I'm instructed that my client would be content for a statement to be made along the lines suggested by Mr Tuck - - -

PN357

THE COMMISSIONER: Okay. All right.

PN358

MR CHIN: - - - with perhaps a further clarification that, in fact, what is being recorded is the parties' respective undertakings not to seek to enforce any rights or obligations under the consent agreement from this day forward.

PN359

THE COMMISSIONER: Yes. Well, I'll ask you formally, shortly, to provide me with a written - an agreed statement between the two of you which you can hand up to me that will then become, essentially, my report of your statement, if you like.

PN360

MR CHIN: Yes.

PN361

THE COMMISSIONER: The other issue I want to raise with you, and which you might want to just consider, and I say this no more than because I think I'm obliged to give you the opportunity, give the resources you've put into it, the issue of - there have been submissions made to me. I have no heard any matters on the merits today. The witnesses haven't been led. The parties have, nonetheless, completed the exercise on jurisdiction and have made extensive submissions, both written and orally, about that matter.

PN362

I'm going to ask the parties, whilst they're putting together their formal written statement for me, whether they wish to confer on the matter, and on having put those matters before me, and even though they will now no longer have any play in respect of the particular matter that was the subject of this application, do they nonetheless want me to decide those threshold jurisdictional issues, even though they may not - they're not going to be, in playing terms of the - that the parties' future that, having come this far, having made those submissions, are they now to be vacated.

PN363

All I'm saying is that the parties are at liberty to request me to, irrespective of the outcome of this matter, to request me to, nonetheless, determine those threshold jurisdictional issues that were before me by the parties and, if so requested, I will do so. I don't want to vacate that task as a consequence of my own - the simple fact that I walk away from them. I will put it to the parties and they can confer and come to a view as to what they want me to do and, if they want me to determine those issues, I shall do that. If they want me to vacate them and not attend to them in any way, then I'll do that, but I will do either of those tasks that the parties seek.

PN364

MR TUCK: My instructions are that, whether or not the Commission determines this issue won't affect the resolution between the parties today but, as a matter of the Commission has had the benefit of those arguments, it may well be of some use, at least for the future, to understand what the Commission's attitude towards the jurisdiction in relation to this matter is, and if the Commission will make - will publish its decision and reason in respect of that issue, we would ask the Commission to do so.

PN365

THE COMMISSIONER: But that's on the basis that, irrespective of the finding, it will have no - - -

PN366

MR TUCK: Yes. That's right.

PN367

THE COMMISSIONER: - - - consequence for the future of the parties' relationship; is that what you're saying?

PN368

MR TUCK: Yes.

PN369

THE COMMISSIONER: And your statement would hold.

PN370

MR TUCK: Yes. It wouldn't be a matter that we would simply have the benefit of the Commission's view in relation to its jurisdiction in these matters which would be helpful.

PN371

MR CHIN: For our part, we would not ask the Commission to determine the question.

PN372

THE COMMISSIONER: Okay.

PN373

MR CHIN: The Commission has heard argument but, in my submission, it's been in a preliminary way. The Commission has had benefit of written submissions, but the Commission has not heard final submissions on the issue. On that basis, we, for our part, would not ask the Commission to make that determination. It's unnecessary for the resolution of the proceedings.

PN374

THE COMMISSIONER: All right. Mr Tuck, what do you think?

PN375

MR TUCK: I have nothing further to add. It's a matter for the Commission.

PN376

THE COMMISSIONER: It will be a decision in its own right, won't it. I've now been compelled to - whether I now - because I'm so requested by one party, am I compelled to provide decisions in writing ..... Have the parties conferred on the form or words they want me to essentially record by way of a statement?

PN377

MR CHIN: Not as yet, Commissioner.

PN378

THE COMMISSIONER: Is this a lengthy process, or would you like some time to do this separately?

PN379

MR TUCK: I don't think it will be a lengthy process, no. If we can go off the record for a couple of minutes, we could do it.

PN380

THE COMMISSIONER: Yes. Well, okay. We'll just adjourn for a few minutes.

SHORT ADJOURNMENT [12.16pm]

RESUMED [12.29pm]

PN381

THE COMMISSIONER: Thanks, everyone. So this statement, effectively, comes into effect tomorrow, does it, the 17th?

PN382

MR TUCK: Yes.

PN383

THE COMMISSIONER: It's intended to be tomorrow.

PN384

MR TUCK: Yes.

PN385

THE COMMISSIONER: And the parties are confident there's no residual application of the previous recommendation by consent of July 2003?

PN386

MR CHIN: Yes.

PN387

MR TUCK: Yes.

PN388

THE COMMISSIONER: That's been wholly and totally displaced by the one of April 1; is that the - - -

PN389

MR TUCK: Yes.

PN390

THE COMMISSIONER: I'm not trying to just throw things in. I'm - - -

PN391

MR CHIN: It expired, I think, and it was wholly - - -

PN392

THE COMMISSIONER: It's now expired, has it?

PN393

MR CHIN: The 1 April recommendation was made in express terms that it displace - - -

PN394

THE COMMISSIONER: Yes, I think you might be right on the expiry date having passed on the one, regardless of July 2003.

PN395

MR CHIN: Yes. Can I just read? The 1 April consent recommendation states that:

PN396

This recommendation is in full substitution for the recommendation issued by the Commission as currently constituted on 13 July 2003.

PN397

THE COMMISSIONER: In any event, the other ones had expired, I expect, too.

PN398

MR CHIN: Yes.

PN399

THE COMMISSIONER: Thanks, Mr Chin. Oh, well, if this is the agreed statement - I might just read this on to transcript as well and I will later publish it by way of a short statement.

PN400

The agreed position of the parties to which they have requested the Commission to publish by way of a statement as the basis for resolving the application that is now before me is as follows:

PN401

The parties hereby agree that, from 17 July 2004, they undertake not to require the observance of and otherwise release each other from any rights or obligations as against each other or any other person arising from the terms of the recommendation by consent dated 1 April 2004, Print number 945321.

PN402

Having resolved the matter in this form, it leads me to suspect that, having resolved the matter, there would be no purpose in making a decision in respect of the jurisdictional matters as the statement effectively expresses the manner in which the parties wish to have this matter resolved. In any event, I am also of the view that Mr Chin's submission to me that I have only, in effect, part heard the jurisdictional matter in the absence of closing submissions I think has some weight.

PN403

That said, I will leave that matter sitting there for seven days for either party to review the position or request me to make a written submission if they think there is some line of argument or some ground on which I may be mistaken in those views. I will give you seven days to so inform me. If there is such a request, of course, it should go to the other side as well, but I will leave that for the parties to review. But it would appear that today's statement as agreed by the parties is the agreed position presented to the Commission and the purpose of the statement seems to be the basis on which the parties which to resolve the matter for today's purposes. That is probably an appropriate turn of phrase to use "for today's purposes" because - sorry, Mr Tuck?

PN404

MR TUCK: I don't wish to interrupt you, but I do want to just clarify that the - as to what actually happens with this, that that is clarified.

PN405

THE COMMISSIONER: Sorry, that what - - -

PN406

MR TUCK: What actually happens to the application by the union is clarified by the union, and I think they are able to do that.

PN407

MR CHIN: In light of the Commission's intention to leave the matter standing for seven days, would the Commission in the absence of any further submissions, discontinue the matter at the expiration of that period?

PN408

THE COMMISSIONER: Well, there are two slightly different things: one is simply a request that - when I say the matter, that is the matter only for someone to request me to reduce to writing any decision that I might have made in respect of the jurisdictional issue. That is not saying that the matter is still on foot at all; that is only a request for me to publish some reasons in respect of the jurisdictional matter.

PN409

In saying this, I am only raising it because I don't wish to be seen to be avoiding any obligation that might be on the Commission to deal with that matter if the parties think I should have an obligation to deal with it. That is the only reason I am raising it, for reasons of giving you some transparency and some opportunity to ensure that nothing is not dealt with that should have been dealt with by the Commission. That is all.

PN410

As to the future of the application itself, I would - depending on, Mr Chin, what you want to tell me, I am of the view that by way of this statement, the undertaking the parties have jointly entered into, they have resolved all the issues afoot in respect of the application, and I say that advisedly because that, in itself, is an issue as to whether or not there was an application pursuant to Section 111, how you actually have an application in respect of a matter of that kind, but putting that to one side, that this would mean this application - once the statement has issued, it would mean that the application is effectively dismissed. Is that your view of it?

PN411

MR CHIN: Yes.

PN412

THE COMMISSIONER: Does that satisfy you, Mr Tuck?

PN413

MR TUCK: Yes, it does.

PN414

THE COMMISSIONER: Okay. Now, that said, can we just go into conference for a few minutes. Thank you.

NO FURTHER PROCEEDINGS RECORDED [12.36pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 WRITTEN SUBMISSIONS OF APPLICANT DATED 09/06/2004 AND WRITTEN SUBMISSIONS IN REPLY DATED 02/07/2004 PN91