C2004/4214, Transcript of Proceedings [2004] AIRCTrans 3036 (4 August 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N 12610
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT HARRISON
SENIOR DEPUTY PRESIDENT DRAKE
COMMISSIONER THATCHER

C2004/4214

APPEAL UNDER SECTION 45 OF THE ACT
BY SHOP, DISTRIBUTIVE AND ALLIED
EMPLOYEES ASSOCIATION AGAINST THE
DECISION OF SENIOR DEPUTY PRESIDENT
DUNCAN AT SYDNEY ON 1 JUNE 2004 IN
AG2004/2783

SYDNEY

10.05 AM, MONDAY, 26 JULY 2004

PN1

SENIOR DEPUTY PRESIDENT HARRISON: Now can we have appearances in this matter.

PN2

MR J. RYAN: If the Commission pleases, I appear for the Shop, Distributive and Allied Employees Association of Australia, and I also appear for the Shop Distributive Allied Employees Association, New South Wales,the State registered union.

PN3

SENIOR DEPUTY PRESIDENT HARRISON: Yes, I see that the notice of appeal was filed by both the Federally registered and State registered organisations, Mr Ryan?

PN4

MR RYAN: Yes, it was jointly.

PN5

MR D. DARCY: If the Commission pleases I seek leave to appear on behalf of Bertha One Pty Limited and Bertha Two Pty Limited.

PN6

SENIOR DEPUTY PRESIDENT HARRISON: Thank you, Mr Darcy. Any objection to leave being granted to Mr Darcy to appear?

PN7

MR RYAN: Not at all.

PN8

SENIOR DEPUTY PRESIDENT HARRISON: Leave is granted, Mr Darcy. Mr Ryan?

PN9

MR RYAN: If the Commission pleases, the issue as I understand it today is not to deal with the appeal other than a threshold question as to whether or not both the SDA Federal and the SDA New South Wales are persons aggrieved within the meaning of section 45.

PN10

SENIOR DEPUTY PRESIDENT HARRISON: What I am undecided about is whether or not we should today consider it or whether section 45 (1)(g) is enlivened, but that's a matter that I suspect might be better tackled as we hear your submissions. I am aware sometimes just dealing in isolation with the question of party or person aggrieved of necessity takes you into 45 (1)(g) in these types of matters, Mr Ryan, but just be aware of that. But certainly the principal point we wish to hear you both on today is the competence of the appeal.

PN11

MR RYAN: I was certainly intending to concentrate on the issue of section 45(3)(d) and primarily because there are authorities which tend to support a view that an organisation which was not entitled at first instance to appear in proceedings for the certification of a non-union agreement is not able to be a person aggrieved for the purposes of section 45(3)(d) and that arises because of the language of section 43(2) of the Act which makes it very clear that an organisation of employees that is not an organisation that is specifically empowered under section 170LK(4) in relation to the agreement is not to be given rights of intervention in proceedings for the certification of a 170LK agreement.

PN12

One of the more recent cases deciding that is print PR925311 a decision of a Full Bench comprising Senior Deputy Presidents Marsh and Cartwright and Commissioner Larkin on 3 December 2002, where they say at paragraph 9 of their decision:

PN13

It is now well established that in such circumstances the TWU lacks standing to appeal.

PN14

In Oakajee Constructors Mid-West Iron and Steel the Full Bench concluded as follows:

PN15

The AMWUs appeal is brought under section 45(1)(g), that is it is an appeal against a decision of the member of the Commission if the member has jurisdiction ...(reads)... within 45(3)(d).

PN16

At paragraph 10, the Full Bench in the Aero Care Enterprise Agreement case said:

PN17

This has most recently been affirmed in T. Mazey and AFMEPKIU where a Full Bench said ...(reads)... at the first instance.

PN18

Whilst the TWU argued that they did have standing on a number of other bases the Full Bench in that decision found at paragraph 13:

PN19

Accordingly we find that the appeal by the TWU is not competent it is dismissed.

PN20

That decision is or one of more recent decisions in a line of authorities which tend to the view that if you are an organisation excluded by virtue of the operation of section 43(2)(b) from appearing at first instance in the matter then it follows in the view of several of these full benches that you not then able to be a party aggrieved for the purposes of section 45(3)(d).

PN21

With respect to the Full Bench decision in print PR925311 and the Full Bench in Oakajee and T. Mazey Fluor Daniel, DHL International and K&S Freighters, with respect to all of those decisions the submission of the association is that there is an inherent error in the approach adopted by the Commission so far in categorising organisations that are excluded at first instance by the operation of 43(2)(b) from then being persons aggrieved for the purposes of section 45(3)(d).

PN22

Interestingly too, although a reliance has been placed upon a list of these authorities, including DHL International, Fluor Daniel and K&S Freighters and the T. Mazey case and Oakajee, it is necessary in my submission to understand the submission of the association to look at each of these authorities to find out exactly what they were saying or not saying in order to discern where we submit the error occurred in the fundamental logic of the Commission in its approach to who is or is not a person aggrieved for the purposes of section 45(3)(d).

PN23

SENIOR DEPUTY PRESIDENT HARRISON: Maybe we could at least ensure that we all agree on what matters are not in issue in here, neither appellant sought leave to intervene before Senior Deputy President Duncan.

PN24

MR RYAN: That is agreed.

PN25

SENIOR DEPUTY PRESIDENT HARRISON: Neither appellant held a relevant certificate under section 170LK(a) I think it is now, the old 291 certificate, presumably only the Federal union could have held such a - - -

PN26

MR RYAN: Yes, but no certificate was sought under LK(a), no request was made under 170LK.

PN27

SENIOR DEPUTY PRESIDENT HARRISON: That was the third matter.

PN28

MR RYAN: Yes, no request was made under LK(5).

PN29

SENIOR DEPUTY PRESIDENT HARRISON: Yes, we will proceed on that basis, thank you, Mr Ryan.

PN30

MR RYAN: No, we clearly acknowledge each of those points.

PN31

SENIOR DEPUTY PRESIDENT HARRISON: Mr Ryan, the decisions that you refer to all deal with Federally registered organisations and what rights they may have had at first instance and then what their standing might be on appeal. Additionally, a couple of them deal with the situation where there is an additional appellant, namely, individuals, persons. I can't think of any of them or no, maybe one deals with a State registered organisation but about a different matter than its standing. That might be a matter you can develop separately because I don't know that as you say they have closed the door in an error in the line of cases in relation to Federally registered organisations, but I don't think that much has been said a State.

PN32

MR RYAN: No, there seems to be very little case law where the State unions have sought to be involved where their counterpart Federal union has also been involved.

PN33

SENIOR DEPUTY PRESIDENT HARRISON: Yes, I understand that.

PN34

MR RYAN: Yes, and in the one case, or in one of the cases certainly it was not necessary for the Commission to even to decide upon the issue of the State role because of issues that related to other technical problems. But I will certainly come to that as we go through the cases.

PN35

SENIOR DEPUTY PRESIDENT HARRISON: Would you just pause for a moment, Mr Ryan? Do you, Mr Darcy, challenge the competence of the appeal insofar as the Sate registered union is of necessity asserting that a person aggrieved.

PN36

MR DARCY: We are, your Honour. I should also should say one thing that I got to announce, and I apologise to the bench, I have Mr Chris Agnew with me also. Yes, we would be and in terms of running full submissions in relation to that matter today we would have some difficulty in that from the point of view that we didn't receive from Mr Ryan any outline of submissions in relation to those particular items.

PN37

SENIOR DEPUTY PRESIDENT HARRISON: None were directed, do you seek an outline from him yourself?

PN38

MR DARCY: I spoke to Mr Ryan, yes, and asked him questions about what direction he was going to take. Mr Ryan, merely indicated that he was relying on first principles was the extent of the conversation.

PN39

SENIOR DEPUTY PRESIDENT HARRISON: Well, I think whatever your understanding might be with, Mr Ryan, more importantly you were informed by my chambers that the Full Bench would hear the issue today of whether the appeal is competent. There have always been two appellants so we would expect you to address both the standing of the Federally registered and the State registered union to appeal. Do you wish to say something about that?

PN40

MR DARCY: Certainly, your Honour. Merely that we would in due course seek to file written submissions on that point in a fuller way, if that pleases, if it appears that that should occur, your Honour.

PN41

SENIOR DEPUTY PRESIDENT HARRISON: Let's tackle that when you make the application. You should not assume that I take it as an application now being made.

PN42

MR DARCY: Certainly.

PN43

SENIOR DEPUTY PRESIDENT HARRISON: So if you find when you are called on to make submissions you are not able to do so and not able to complete them you make an application then.

PN44

MR DARCY: Certainly.

PN45

SENIOR DEPUTY PRESIDENT HARRISON: While you are on your feet may I ask you a couple of things about the agreement so I'd better understand some of its terms. In fact, having said that I'll ask you about the agreement, I'll ask you about something else first. There was a reference to an existing 170LJ agreement, the union party to it the SDA, it was referred to but not tendered. I have that perused agreement, I can't find it at the moment. May I confirm, or would you take instructions, that it is the SDA Bertha One Certified Agreement 1999, it was certified by Commissioner Cargill in April 1999 and its nominal expiry date was April 2000.

PN46

MR DARCY: That's correct.

PN47

SENIOR DEPUTY PRESIDENT HARRISON: Yes. Now I have read the submissions made to Senior Deputy President Duncan and a number of matters were addressed, one in particular was an indication that no part of the agreement presented to him for certification was to cut across this agreement.

PN48

MR DARCY: That was the intent of the agreement, it covered effectively the traineeship arrangements and managers which weren't covered in this 1999 agreement.

PN49

SENIOR DEPUTY PRESIDENT HARRISON: So the submission that was made there is that the agreement certified by Senior Deputy President Duncan dealt only with trainees and managers and this agreement which does not deal with either trainees or managers continues in force as of today.

PN50

MR DARCY: That is correct, your Honour.

PN51

SENIOR DEPUTY PRESIDENT HARRISON: At some stage will you let me know how many trainees you had at Bondi Beach and Qantas at the time of certification and how many employees you had covered by this enterprise bargaining agreement.

PN52

MR DARCY: Certainly.

PN53

SENIOR DEPUTY PRESIDENT HARRISON: I can imagine that you might need a break a little later.

PN54

MR DARCY: I will take some instructions on that question if that is all right.

PN55

SENIOR DEPUTY PRESIDENT HARRISON: Of course and one final thing. It wasn't you I think it might have been Mr Agnew, but the submissions made to the Senior Deputy President and the terms of the agreement presented to him for certification and the award against which the no disadvantage test was undertaken all take the reader back to the Retail Industry State Training Wage Award.

PN56

MR DARCY: Yes, I believe so, your Honour.

PN57

SENIOR DEPUTY PRESIDENT HARRISON: To the extent to which you have any trainees who you say are covered by the award as certified they are confined only to trainees as that term is defined and used in the Retail Industry State Training Award?

PN58

MR DARCY: Yes, I believe so.

PN59

SENIOR DEPUTY PRESIDENT HARRISON: That's important for me to know, it is the case, thank you. Yes, thank you, Mr Ryan?

PN60

MR RYAN: Thank you, your Honour. Going back to the line of authorities which seemingly creates an authority to say that section 43(2)(b) operates to deny an organisation such as the SDA in the position we are in its capacity to be a party aggrieved under 43(d). One of the authorities in that line is the decision at print P8417, which was a Full Bench decision, it is the K&S Freighters decision, the Full Bench decision comprising the President Giudice J, Vice President McIntyre and Commissioner Bacon.

PN61

SENIOR DEPUTY PRESIDENT HARRISON: Just a moment, Mr Ryan, I'm trying to understand my own system of the many section 170LK cases that I keep in chambers.

PN62

MR RYAN: I did have prepared a book containing all of the authorities and material I will be referring to which I had couriered from Melbourne to Sydney on Friday afternoon, and as at five to ten this morning it was still in the back of a delivery van somewhere in Sydney. I've been promised that it would be here by about half past ten so if the Commission bears with me as soon as the material arrives I will at least be able to present the decisions in the same form that I'm using them which will obviously make it much easier for the Commission to follow some of the submissions I make.

PN63

SENIOR DEPUTY PRESIDENT HARRISON: Yes, how confident are you that they will be here at that time, Mr Ryan, it is out of your control I guess.

PN64

MR RYAN: No, just before the proceeding started I got a phone call from the Sydney office, the courier company was not able to divert their truck to here, it was being delivered to our office which is in Haymarket and I've arranged for office staff there to grab and have the car ready and come straight up so it will certainly be coming.

PN65

SENIOR DEPUTY PRESIDENT HARRISON: Yes, proceed.

PN66

MR RYAN: Thank you. In the K&S Freighters decision interestingly, and it is important to note this interesting aspect of it, the matter was actually not decided by that Full Bench in that decision as to whether or not an organisation which was excluded by the operation of 43(2)(b) was not able to be a person aggrieved. It was certainly argued and if nothing else it would appear that from the decision there would appear to be a tendency that the Commission was going down the line of thinking that the operation of 43(2)(b) may have excluded a party from being able to claim that it was a person aggrieved under 43(d).

PN67

But very importantly that decision does not actually decide the point and the reason for that is that on another issue the Full Bench took the view that there was some further material that was required to be presented and they conclude their decision by actually issuing directions to the TWU to file additional material and for each party to file further submissions in reply.

PN68

So on that basis they actually did not issue a decision which categorically stated one way or the other whether an organisation, in that case the TWU, was a person aggrieved or was not a person aggrieved, and they did not decide whether section 43(2)(b) was determinative of the issue. It had been certainly put to them by counsel for the employer that the appeals were not competent and this is in the third full paragraph at the beginning of the decision and it is made very clear there. Mr Longland, appeared by leave on behalf of the company:

PN69

At the outset, Mr Longland, sought and was granted leave to raise a preliminary objection, namely, that the appeals were not competent. Mr Longland's submission was that ...(reads)... to following circumstances.

PN70

And they are identified in a number of issues there. Then it goes on:

PN71

Mr Longland, submitted that his position was supported by the authorities on the construction of the term, person aggrieved.

PN72

And he referred to Tooheys Limited case, the Australian Institute, Marine and Power Engineers case and Leighton Contractors. Then he went on and the decision says:

PN73

He also relied upon two relatively recent Full Bench decisions for the proposition that a union which seeks leave to appeal from the certification of an agreement ...(reads)... section 43(2).

PN74

The two cases that were relied upon were the DHL and the Fluor Daniel matter. Then, Mr Watson, who appears for the TWU then responded and the TWUs general position was that they were an organisation aggrieved because they had members employed by the company who would be covered by the agreements, the TWU was a party to the relevant award and finally by its nature the TWU has real interest in the maintenance of appropriate conditions in the industry. The decision notes:

PN75

On this final point reliance was placed upon the Metals Trades case.

PN76

Then Mr Watson went on to submit:

PN77

That the terms of section 43(2) did not in the circumstances of the case lead to the conclusion that the TWU was not aggrieved. His primary contention was ...(reads)... ought not be followed.

PN78

It is an interesting line of argument that was presented on the part of the TWU, it is not a line of argument that I would put myself today.

PN79

SENIOR DEPUTY PRESIDENT HARRISON: Well, you can't really establish the factual basis from which they were seeking to mount it, Mr Ryan.

PN80

MR RYAN: Yes, but in terms of trying to draw a connection, as you said. The secondary submission was:

PN81

That the operation of 43(2) was limited to cases in which there was a valid application pursuant to division (2) or (3) of Part VIB.

PN82

That I don't believe is a submission which actually accords with the simple language of section 43(2). It seems to be an argument trying to walk around 43 in order to get to the stage of being able to say I'm a person aggrieved under 43(d). It is not in my view necessary to go to extraordinary lengths of trying to create an argument which is not supported by the legislation, which shows in some respect the difficulty I submit full benches have had in trying to come with a clearer and proper understanding of the operation of the relationship between 43(2)(b) and 43(d) and that is that not all of these submissions have been made by either employers or unions have necessarily been submissions that have helped the Commission have a true and proper understanding of the language of the Act, the purpose of the Act and the way in which the Act should be applied.

PN83

SENIOR DEPUTY PRESIDENT HARRISON: Mr Ryan, is your complaint the automatic finding that follows the inability simply to intervene, therefore, it follows you cannot be a person aggrieved? Is that your complaint?

PN84

MR RYAN: When you look at the most recent authorities it appears that the decisions of the Commission have virtually got to that stage.

PN85

SENIOR DEPUTY PRESIDENT HARRISON: I understand that submission and whether on a close reading of the - - -

PN86

MR RYAN: And that is a complaint.

PN87

SENIOR DEPUTY PRESIDENT HARRISON: Full Bench is they in fact meant that or whether perhaps it was a summary of what they thought were Full Benches that could not be distinguished and they adopted them and arrived at the same result.

PN88

MR RYAN: Yes.

PN89

SENIOR DEPUTY PRESIDENT HARRISON: I do understand that submission. Assuming that that is not the case, or should not be the case - namely, one automatically follows the other - nonetheless there are several Full Bench decisions, are there not, that have looked at whether you are a person aggrieved? DHL was a good example.

PN90

MR RYAN: Yes.

PN91

SENIOR DEPUTY PRESIDENT HARRISON: And you find yourself in the same position as the DHL; don't you?

PN92

MR RYAN: Certainly in the same position except with a different package of arguments. If there is an acceptance that 43(2)(b) simply does not act as an automatic statutory bar to being a person aggrieved, then that allows us to simply say: it is irrelevant. No, not irrelevant. It is always relevant. It simply doesn't carry the weight that appears to be present in some of the decisions of Full Benches where they now no longer analyse the circumstances of the appellant. They simply assume that because the appellant is an organisation that was statutorily barred under section 43(2)(b) from first proceedings that that means that they cannot be a person aggrieved and that is with great respect to the decision in the Aero Care Enterprise Agreement, the failure of the bench in that matter to give any analysis of the status of the TWU or the status of the parties in terms of the range of matters there, gives every indication that the Commission has moved to a position where it is adopting virtually as a rule - - -

PN93

SENIOR DEPUTY PRESIDENT HARRISON: I understand.

PN94

MR RYAN: - - - that 43(2)(b) acts as a bar to being a person aggrieved under section 43(d). That is, in our submission, such a fundamental shift in the thinking of members of the Commission and is so dangerous because it is not doing the job of analysing the status of the appellant or the person who wishes to be the appellant to see whether or not they are genuinely a person aggrieved within the statutory and case law framework and then making the decision on that basis, which is why I concentrate so much on trying to re-visit some of these cases because if I can make it very clear that 43(2)(b) should not be a factor at all in the determination of whether or not an organisation is a party aggrieved.

PN95

43(2)(b) has a specific function. Its function, and it is the function and the purpose of the Act, is to prevent an organisation which has a genuine interest in a matter from being able to intervene in a proceeding before the Commission and 43(2)(b) quite frankly would not be necessary if organisations did not have valid and primary interests in the certification process. In other words, if the normal operation of section 43 was sufficient to exclude organisations that were not persons aggrieved or persons with a real interest in the matter and if that was able then to be used to exclude organisations that had not been asked by members to oppose the certification of an agreement or had not been authorised under section 170LK(4) then there would be no need for section 43(2)(b).

PN96

Its purpose was to actually remove from the arena organisations which did have an interest. In other words, they were organisations which if a person aggrieved test was applying at first instance to the issues of intervention in relation to the certification of an agreement, the organisations would have been able to establish that they were persons aggrieved and had a real interest, more than the man in the street and more than the busybody and intermeddler. It's easy to establish that interest and they would be able to intervene.

PN97

It's very important and it's probably an appropriate time to look at both the second reading speech of the Minister and the explanatory memorandum to the bill - if this is the right box.

PN98

SENIOR DEPUTY PRESIDENT HARRISON: Yes. Do you need some assistance? Would you like my associate to give you some assistance? It seems to be securely sealed there Mr Ryan.

PN99

MR RYAN: Yes, if you have a sharp instrument.

PN100

SENIOR DEPUTY PRESIDENT HARRISON: Yes. Well, if you are going to use a sharp instrument we might just adjourn for a short time.

PN101

MR RYAN: Thank you. If the Commissioner pleases.

SHORT ADJOURNMENT [10.40am]

RESUMED [10.49am]

PN102

SENIOR DEPUTY PRESIDENT HARRISON: Mr Ryan.

PN103

MR RYAN: Yes. Well, thank you for that brief adjournment. I have now been able to hand up copies of the authorities that I have previously advised that are in booklet form but together with both a copy of the second reading speech to the Workplace Relations and Other Legislation Amendment Bill 1996 and the explanatory memorandum to the Workplace Relations and Other Legislation Amendment Bill 1996. If I can draw the Commission's attention to - it's tab 17 in the booklet that I have tendered, the Minister, the then Honourable Peter Reith, Minister for Industrial Relations, gave the second reading speech to the Workplace Relations and Other Legislation Amendment Bill on 23 May of 1996.

PN104

And the references in the second reading speech to agreement making and the role of Unions are only two. If I can draw the Commission's attention to page 4 of the second reading speech under the heading Overview of the Bill. The Minister commences by giving a general outline of the nature of the purposes of the Bill. The first paragraph of the Overview is talking about co-operative workplace relations. The second paragraph, the object focuses on giving primary responsibility for industrial relations and agreement making to employees and employers at the enterprise and workplace levels with a corresponding role for the award system being to provide a safety net of minimum wages and conditions.

PN105

Then, third paragraph of the Overview talks about freedom of association and then he says:

PN106

Mr Speaker I would now like to elaborate on some of the key elements of this Bill to explain how the Government's reforms could be ...(reads)... of their own interests.

PN107

Those last two paragraphs in that general Overview is both in relation to certified agreements as well as to AWAs but it talks there in terms of without unnecessary complexity or unwanted third party intervention. It's a very broad brush statement without any particular detail attached to it. The Minister then goes on, page 5 he deals with unfair dismissal and the award system. At page 7, he deals with agreement making and he starts by saying:

PN108

Mr Speaker, under this Bill the options for agreement making will be significantly expanded and simplified. Employers and employees in the ...(reads)... employers and employees.

PN109

And then he goes on talking about State agreements and then the next paragraph, talking about no discrimination between any form of agreement and then the final paragraph in that section:

PN110

Both AWAs and CAs have been designed to meet the objectives of placing the primary responsibility for industrial relations with employers ...(reads)... protection for workers.

PN111

He then talks about those minimum conditions. At the top of page 8 he details broadly the scheme in relation to State and workplace agreements and then at the top of page 9 commences an explanation of certified agreements and says:

PN112

The current certified agreement provisions are being revised substantially. Additional arrangements will apply to cover existing agreements.

PN113

Then, the next paragraph:

PN114

New, simplified arrangements will make CAs more accessible and able to be finalised more efficiently. An agreement will be able to ...(reads)... complex consultation requirements.

PN115

And then, the next paragraph:

PN116

CAs may also be made directly with employees. This mechanism will replace labour's failed enterprise flexibility agreements, of which there have ...(reads)... role of unions.

PN117

So, at least there's a very clear identification of the distinction between what the Minister saw as the failure of the former enterprise flexibility agreements in the Industrial Relations Act and the Government's proposals in relation to certified agreements being made by employers directly with their employees, and that is to obviate or remove provisions which invite an intrusive and unwarranted role for unions. The Minister goes on in the next paragraph - - -

PN118

SENIOR DEPUTY PRESIDENT HARRISON: I'm not finding this very helpful, Mr Ryan, to resolving any doubt that there might be on the proper interpretation to be applied to the leave to intervene section and section 45 person aggrieved. What here is helping me resolving a issue about how to interpret those two sections?

PN119

MR RYAN: I'm seeking to identify what is the clear purpose of the legislation in relation to section 43(2)(b). If that purpose is clearly understood, then in my view the Commission would not have fallen into the errors which it did in some of the earlier decisions. I'm presuming that there is a flow on effect to dealing with the concept of who is not a person aggrieved. From my understanding of the decisions, there seems to be whether it is directly acknowledged or whether it is simply the approach adopted by the Commission, there appears to be a deliberate link between 43(2)(b) and 43(d) on the basis that if the purpose of the legislation is clearly expressed in 43(2)(b) then that must have meant that the purpose of the legislation in 43(d) was influenced or changed so that the Workplace Relations Bill changed how one would read 43(d) because of the purpose of section 43(2)(b).

PN120

That appears to be inherent in the logic that is evident in all of the decisions, K and S Freighters, DHL, Fluor Daniel, all of them have this link. If I can show that a proper understanding of the purpose of the legislation in relation to the introduction of section 43(2)(b) and my submission is it is intended to do one thing and one thing only and that was to prevent involvement and I'm using the provocative language of the Minister. He refers to as the unwarranted intervention of third parties or the intrusive and unwarranted role of unions. That's what the purpose was to prevent in his language the intrusive and unwarranted role of unions in the certification process, nothing else. It was never intended to go any further than that and cannot ever be read to go any further than that.

PN121

SENIOR DEPUTY PRESIDENT HARRISON: In a Full Bench decision that - I don't know if it's on your authorities but it may have been brought to our attention by the employer but in any event I bring it to your attention, Formula One Catering, Print 930605, a decision of a Full Bench in May 2003 at paragraphs 12 through to 18, the Full Bench deals with the second reading speech and explanatory memoranda that relates directly to the amendments to section 43 and links it into 170LK. I think I would be aided by you taking us to that which deals with the very point that you raise here rather than necessarily what you've been taking us to and in any event, it also provides a rather neat way of accessing the relevant discussion of the amendment introduced then to section 43.

PN122

MR RYAN: Yes. I haven't got a copy of that decision because I wasn't relying upon it. Was it in Mr Darcy's list of authorities?

PN123

SENIOR DEPUTY PRESIDENT HARRISON: Maybe it wasn't. We have a spare one. Well, if it wasn't then I bring it to your attention as a decision that I'm familiar with that seems to me to deal precisely with the point that you are now raising and we'll have a copy of copies taken for you.

PN124

MR RYAN: Yes. I'm familiar with the decision. I've certainly read it and I'm -

PN125

SENIOR DEPUTY PRESIDENT HARRISON: Well, not precisely. None of these cases deal precisely but it does take you to the relevant documentation that deals with the sections in questions rather than general comments made by then Minister Reith.

PN126

MR RYAN: Yes. I must admit, part of my research into this has been prompted by that decision in order to try and understand some aspects of the technical debate that went on.

PN127

SENIOR DEPUTY PRESIDENT HARRISON: Mr Ryan, why isn't your point able to be put quite succinctly? It is not correct to automatically find that a union is not aggrieved because you have previously found they had no right to intervene under section 43 and one must always give consideration separately to whether the appellant is a person aggrieved?

PN128

MR RYAN: Having read the submissions that have been put by the parties before Full Benches, where they've expressed very similar views and been done over constantly -

PN129

SENIOR DEPUTY PRESIDENT HARRISON: Well, I don't know what the submissions were in other matters that I wasn't involved in. I only know the reasons for decision that have issued by Full Benches.

PN130

MR RYAN: What I'm trying to make certain is that I don't want to put it so simply that it appears to be put so simply or that may be right but in the face of the list of authorities which have tended to adopt exactly the opposite position, I just want to make certain that there can be no doubt about the strength in which I'm putting this submission and why there has to then be a complete separation between 43(2)(b) and 43(d).

PN131

SENIOR DEPUTY PRESIDENT HARRISON: Well, you should not assume that I have formed the view that there isn't that automaticity but let's assume that you're right and let's assume that some of the Full Benches might have written in a rather shortened way that which they in fact were doing, namely giving both sections individual attention. Most of the Full Benches about which you complain always rely as precedent for the statements they make on DHL, Fluor Daniel.

PN132

MR RYAN: Yes. They rely for it as precedent. In my submission, where there has been reliance upon Fluor Daniel and DHL, the reliance has been on that part of the decision which ultimately says a union is not a person aggrieved and the linkage between 43(d) and 43(2)(b), even though on a close examination of those two cases it's not clear that 43(2)(b) was actually a final and determinative position. It wasn't thing that broke the camel's back in other words although the references in both of those decisions to reliance upon 43(2)(b) in my submission is singular unhelpful because it simply clouds the issues.

PN133

43(2)(b) should not be considered on the basis of whether or not a person is a person aggrieved. There are much broader tests relating to being a person aggrieved and to focus on the lack of standing at first instance where the lack of standing was by a very specific Act of parliament to withdraw the right of an interested person to be involved has in my view coloured the approach the Full Benches have taken to whether or not a person is a person aggrieved under 43(d).

PN134

SENIOR DEPUTY PRESIDENT HARRISON: You would be seeking us, in this case, to re-visit each of those decisions that you say seem to have applied that automatic leap from one section to the other? Or not even distinguish. To not follow.

PN135

MR RYAN: You simply don't have to follow them. You are not bound to follow them in any event but to determine the matter on the issues that are before this Commission. To the extent that these decisions are helpful one way or the other is really the issue you have to determine. My submission is that if there is an acknowledgment that there is a fundamental error in this automatic linking of the inability to have standing at first instance with then a perceived inability to be a person aggrieved. If that link can be broken and it can be understood it should not have been made, and there was no justification for making it, then the Commission is simply able to look at the rest of the matter and say, well what constitutes being a person aggrieved? If we can set aside the red herring which is 43(2)(b). In my submission it is a total red herring.

PN136

SENIOR DEPUTY PRESIDENT HARRISON: Why would you say you are a person aggrieved, in relation at this stage to the Federally registered organisation?

PN137

MR RYAN: Why would I say that I am?

PN138

SENIOR DEPUTY PRESIDENT HARRISON: Yes.

PN139

MR RYAN: In particular, as a party to the agreement which is still in existence; the Bertha 1 Certified Agreement 1999. In relation to that agreement, that gives us direct interests in the industrial regulation of employees of Bertha 1. In particular, that agreement specifically provided that there was an obligation on the parties to re-negotiate the agreement and if the Commission - I have copies of the agreement.

PN140

SENIOR DEPUTY PRESIDENT HARRISON: This has been time-expired since April 2000. What have you done about attempting to re-negotiate it?

PN141

MR RYAN: Since April 2000 there have been many and varied changes in the relationship between the Association and the number of the franchisees of the major operators who trade as Burger King and Hungry Jack's. There has been a very complex history in relation to Hungry Jack's and Burger King. Part of that was the process of Burger King trying to attack Hungry Jack's and put them out of the marketplace which led to very large scale Federal Court actions which Hungry Jack's won.

PN142

That is Hungry Jack's as a corporate entity controlled by one business. There are numerous independent franchisees of Hungry Jack's and there were independent franchisees of Burger King. Burger King being an American owned company. Burger King has effectively vacated most of the area with some of its franchisees being handed over to effective control by the franchise group which works with Hungry Jack's and others going off on their own and not being in any sort of collective grouping of franchisees. We have also had some franchisees who were originally very close to Hungry Jack's, moving away from Hungry Jack's.

PN143

The union has found itself in the position in the last three or four years of having a very dynamic situation in relation to those entities which trade as either Burger King or Hungry Jack's and has sought to negotiate agreements on a constant basis with the various groupings in relation to the various pre-existing agreements which expired. The SDA Bertha 1 Certified Agreement is but one of the agreements that makes up the total picture of the relationship between SDA and the various entities that were trading as Hungry Jack's and Burger King. We are now, still, in current negotiations with at least three or four different groupings within the Hungry Jack's, Burger King marketplace. There is an attempt to try and consolidate some of the agreements as well. There are also areas where some of these franchisees have gone off and done non-union agreements.

PN144

SENIOR DEPUTY PRESIDENT HARRISON: Just pause there, Mr Ryan. I have probably unwittingly allowed you to make a lot of comments from the bar table. Many of which I suspect might - - -

PN145

MR RYAN: Irrelevant. Totally irrelevant.

PN146

SENIOR DEPUTY PRESIDENT HARRISON: Well they might be relevant but they also might need to be established on evidence if they are to be said to be relevant to whether you are a person aggrieved. However, we do know of the Bertha 1 Agreement because it was referred to in the proceedings before Senior Deputy President Duncan and we do know that that applies to one of the entities covered by the agreement he certified. And you were developing a submission relying on that extant agreement to say it is relevant to whether you are a person aggrieved on appeal?

PN147

MR RYAN: Yes. Clause 46 of the agreement has a clause in it which requires the parties to commence negotiations for a new agreement. As far as I am aware attempts were made generally for re-negotiations of the agreement in 2001 across not only Bertha 1, and not particularly with Bertha 1 Pty Ltd, but with the group of entities trading as - as they then were - as Burger King. No agreement was specifically reached with Bertha 1 Pty Ltd. Clause 46 then says:

PN148

At the expiration of this agreement if no new agreement can be negotiated it is proposed that any certified ...(reads)... the New South Wales Hungry Jack's SDA Agreement in force at 30 April 2000 shall then apply.

PN149

This agreement specifically then contemplated either the fact that there could be some difficulties in negotiating individual or particular agreements with Bertha 1 Pty Ltd, but that nevertheless there would be a very clear application, post the nominal expiry date, of either a particular agreement which would be a Burger King Enterprise Agreement. Or if that did not eventuate then the fall-back position was that the New South Wales Hungry Jack's SDA Agreement in force at April 2000 would apply.

PN150

SENIOR DEPUTY PRESIDENT HARRISON: Now you heard Mr Darcy answer one of the questions I directed to him. It was consistent with submissions made by Mr Agnew to the Senior Deputy President that this agreement, they say, continues to apply to employees, and this agreement has not applied to trainees or managers, and it is trainees and managers that are regulated by the agreement as certified by the Senior Deputy President.

PN151

MR RYAN: Yes.

PN152

SENIOR DEPUTY PRESIDENT HARRISON: I can understand the submission if the two cut across each other. But I am just wondering, in those circumstances when it is said they do not, how you can be said to be a person aggrieved.

PN153

MR RYAN: If I can take the Commission to clause 3 of this agreement, the parties bound:

PN154

This agreement shall be binding on the SDA its members and persons who are eligible to be members who ...(reads)... the company's operations in New South Wales.

PN155

Whilst it's called a parties bound clause, it's effectively also the scope clause of the operation of the agreement because it relates solely to that class of employees who are covered by the classifications of Retail Food Employee grades 1 to 4. So, there is no specific exclusion of managers in this agreement but simply by going to the definitions which are in clause 5 of the agreement and clause 7, which is the career structure and wages, we concede that the manager positions were not intended to be covered by the general classification structure of this agreement.

PN156

So that a manager was not within grades 1 to 3 or 4. However, we do not concede that trainees or persons involved in a training system are not covered by this agreement.

PN157

SENIOR DEPUTY PRESIDENT HARRISON: That submission, I understand in light of clause 8, Mr Ryan, which has concerned me.

PN158

MR RYAN: Yes, but more than just clause 8, clause 8 was very specifically in relation to a person who would be a trainee within the specific concept of the national training wage. There is an additional form of trainee and that is the person who is an employee. A retail food employee grade 1, in clause 5, is defined as:

PN159

Shall mean an employee certified by training test and practical evaluation on four stations - - -

PN160

SENIOR DEPUTY PRESIDENT HARRISON: So where are you? Retail? Yes I see, in (c). Yes.

PN161

MR RYAN: Yes:

PN162

Shall mean an employee certified by training test and practical evaluation on four stations and is in the first six months of employment.

PN163

And then, in the next definition:

PN164

Retail Food Employee grade 2 shall mean an employee certified by training video, test and practical evaluation on the following stations.

PN165

And then:

PN166

Retail Food Employee grade 3 shall mean an employee certified by training video, test and practical evaluation in the following areas.

PN167

So, at least in the first three levels of work in this agreement, the agreement was specifically predicated on the fact that people are in a training mode and that is borne out, if nothing else, by looking at the structure of wages.

PN168

SENIOR DEPUTY PRESIDENT HARRISON: What do you mean by training mode and again I go back to a question I asked early in this hearing of Mr Darcy and that was, we should read the reference to trainees in the agreement certified by Senior Deputy President Duncan as trainees and traineeship as meaning the same thing and being consistent with the definition in the Retail Industry State Training Wage Award. Now, are you talking about another class again?

PN169

MR RYAN: Yes. A class other than a person under either the State Training Wage Award or the National Training Wage Award. In terms of Bertha One - - -

PN170

SENIOR DEPUTY PRESIDENT HARRISON: Yes, but I understood the answer to my question was that if they are not a trainee, as understood by the Retail Industry State Training Wage Award, the Award used for the purposes of the no disadvantage test before Senior Deputy President Duncan, it was not intended that the Enterprise Bargaining Agreement apply to them. I might have misunderstood the answer.

PN171

MR RYAN: Yes. I understand that is the answer. My submission is, it is not - the breadth of the operation of the Bertha One Agreement is such that it clearly covers training positions both by the incorporation of the National Training Wage Award but it covers training positions which may be subject to the State Training Wage Award by virtue of the fact that there are clear training elements within the classification structure. It's a structure based upon a gradual progression up to the 100 percent level. The classification and wage structure makes it very clear that you get to 100 percent, whatever 100 percent is, but you get to 100 percent level, which is obviously the concept of being a trained employee by starting off at a lower wage rate and training up to it.

PN172

So, it clearly has training elements into it. The difficulty in that sense then with the agreement is that an employee can move either into or out of a training wage award situation or a training agreement under a relevant State Act. They can either be a trainee employee and move out or they can, if there is any difficulty with the training agreement, they would then fall back. It is not as if they are mutually exclusive classes of employees which cannot have any interaction between them and because of that possibility of interaction and not just theoretically but very real, then the association has a very direct interest in the operation of the Bertha One Certified Agreement of 1999 and is clearly therefore a person with more than a passing interest in relation to the agreement certified most recently.

PN173

SENIOR DEPUTY PRESIDENT HARRISON: Now, I know the submission you make about me not being preoccupied with the terms of section 43 but let me just be so for a little while. What we have just said may well have been rather persuasive had you sought to exercise your powers of intervention below. I don't know but you did not. Why, then would we be persuaded on appeal that it establishes at least one good limb for showing you to be a person aggrieved?

PN174

MR RYAN: I'm not certain I followed the full import of the question.

PN175

SENIOR DEPUTY PRESIDENT HARRISON: You did not seek leave to intervene below. Had you done so and ran the argument you now run, let's assume for the purposes of my question it might have been persuasive. I don't know but it wasn't run. Why should we make an assumption on appeal about that outcome for the purposes of being persuaded you are a person aggrieved?

PN176

MR RYAN: I'm quite happy to concede that we were statutorily barred by the operation of section 43(2)(b) from intervening as an organisation. This is a Federal organisation. I suspect that the State organisation could have intervened because it's the State organisation which has primary carriage for the responsibility of the State Training Award and also the State Retail Award but in any event the Federal organisation I don't believe, no matter how much we felt that we were a person aggrieved at first instance, we were statutorily barred and I'm quite comfortable with the operation of section 43(2)(b) to deny us that capacity as an organisation.

PN177

We did not purport at any stage to be acting in a representative capacity for an employee whose terms and conditions of employment would be covered, which in any event means that it's not the STA that would have intervened. If we had tried to go through the representative capacity it's a different argument. We never. We didn't try that and the mere fact that we were statutorily barred again, in my submission, is irrelevant. If we are a person aggrieved and we have an interest which is more than that of the intermeddler and the person in the street, then that's sufficient for this bench and that's all that is necessary for this bench to look at.

PN178

Again, I caution that section 43(2)(b) is designed to keep out organisations that have an interest and it's designed to statutorily bar a person who would otherwise be a person aggrieved at first instance. I would have thought that if we were permitted to intervene on the basis of arguing that we were a person aggrieved and we were granted the leave to intervene that a member of the Commission would have been acting in blatant breach of the statutory bar under section 43(2)b)

PN179

SENIOR DEPUTY PRESIDENT HARRISON: So taking you back to where you were and I have been taking you off on a tangent, you have given the first reason why we should be persuaded you are a person aggrieved, that is, the existence of the enterprise bargaining agreement to which you are a party and its terms. Anything else?

PN180

MR RYAN: We have a special interest the subject matter of the agreement. This distinguishes it from the fact of the operation of the 99 agreement but the association has a special interest in the subject matter of the operation of the Bertha Group Certified Agreement. That special interest arises because we simply are the organisation that has the acknowledged industrial coverage for the fast food industry and we have that interest in terms where this Commission has excluded all other organisations from being able to represent the industrial interests of persons engaged in the fast food industry and have given this association those rights of representation.

PN181

We have therefore not an interest which is a competing interest with any other registered organisation of employees but we have an interest which is above any other organisation of employees because of the operation, and it is referred to as the fast food demarcation order of 1995 which gives us that coverage. That coverage alone constitutes for the purposes of being a person aggrieved a special interest in the subject matter. It is the role of the association to ensure that the awards in this industry are maintained as effective safety nets. It is the association that has established an award of the Commission known as the National Fast Food Retail Award.

PN182

The association also has established awards with a number of the entities operating as Hungry Jacks. We actually have specific awards for some of those entities. We have agreements certified by this Commission - - -

PN183

SENIOR DEPUTY PRESIDENT HARRISON: Just pause there again, Mr Ryan. I know you are answering my question but perhaps I should indicate to you, Mr Darcy, it is for you to take issue with out receiving this and relying on it if we think it relevant as statutorily correct.

PN184

MR DARCY: Yes, your Honour, I understand that the full bench does have the ability to hear evidence and Mr Ryan is putting statements before the Bench which are obviously untested and I expect obviously the Bench to give it the weight it considers appropriate in the circumstances.

PN185

SENIOR DEPUTY PRESIDENT HARRISON: About some matters I suppose we do that but when someone asserts the existence of an award or the existence of an enterprise bargaining agreement I don't know how much evidence I need to hear. I will accept that there is such an award and enterprise agreement and you can pretty readily jump up and so, no there is not. Then we might require the person to put more formal proof. That's one of the limbs of his argument. The other is his status in the industry, that's notorious, isn't it?

PN186

MR DARCY: There is no difficulty with that and we don't take issue with that.

PN187

SENIOR DEPUTY PRESIDENT HARRISON: So so far it hasn't probably gone any further than those sorts of matters that he is asserting that one wouldn't have thought there was a necessity to put him to proof.

PN188

MR DARCY: No, and to this point I hadn't made an objection.

PN189

SENIOR DEPUTY PRESIDENT HARRISON: All right, of course.

PN190

MR DARCY: And further, I was going to refer to the operation in any event in relation to the question of a person aggrieved, to the certified agreement and the interaction with the Bertha 1999 Agreement myself in relation to what we say is separation between those particular instruments is. If it pleases.

PN191

SENIOR DEPUTY PRESIDENT HARRISON: Yes, Mr Ryan, just bear in mind that the sorts of matters you are asserting I wouldn't have thought they were as real difficulty and our relying on them as facts but if you venture into some other areas you may well find that Mr Darcy - - -

PN192

MR RYAN: I am sure someone will pull me up. Another matter which clearly gives us standing as a person aggrieved is that because of the operation of the agreement making stream in terms of giving primary responsibility to employer and employees or employer and an organisation, the association as the pre-eminent worker organisation in the fast food industry has sought to ensure that the Commission properly establishes standards in terms of agreement making which are absolutely consistent with the obligations of the Commission in applying its statutory tests.

PN193

If an agreement is allowed to exist and operate which clearly is outside the jurisdiction of the Commission - - -

PN194

MR DARCY: Your Honour, if Mr Ryan is referring directly to the agreement in question - - -

PN195

SENIOR DEPUTY PRESIDENT HARRISON: The agreement under appeal I imagine, not the existing EBA but the section 170LK I think he is referring to.

PN196

MR DARCY: In that event, those are matters which Mr Ryan alleges and certainly are to this stage I suppose subject of this particular hearing into competence of the appeal itself. If it pleases, so we make objection.

PN197

SENIOR DEPUTY PRESIDENT HARRISON: Yes. Mr Ryan. It seems that where we are is, if this is a competent appeal and if you are a party aggrieved and if we grant leave to appeal you are foreshadowing that you want to have something to say about the no disadvantage test.

PN198

MR RYAN: Significantly that no disadvantage test about the language of the agreement, and this goes to the nature of our standing. Agreements operate - once an agreement is in force it operates to prevail over State Awards or Federal Awards to the extent of inconsistency. It has a legal operation which diminishes the status and value of awards of this Commission and awards of the New South Wales Industrial Relations Commission in this particular case where this agreement is limited to the operations in New South Wales.

PN199

Because the association had a very direct interest in establishing fair bargaining and proper bargaining in relation to the fast food industry, where that bargaining is predicated upon both compliance with the requirements of the Act and in particular where that bargaining is predicated upon passing the no disadvantage test then, in circumstances where there is a challenge by the association or an assertion by the association that either the Act has not been properly applied in general for that an agreement fails and significantly fails the no disadvantage test, that alone is sufficient to grant us standing.

PN200

SENIOR DEPUTY PRESIDENT HARRISON: No, that assertion alone cannot be, surely.

PN201

MR RYAN: It has to be an assertion until such stage as an appeal is actually granted. For example, I can assert that the agreement as certified significantly fails the no disadvantage test.

PN202

SENIOR DEPUTY PRESIDENT HARRISON: And we can rely on the statutory declarations and the consideration given by the Senior Deputy President turning his mind specifically to that test. In fact he said in transcript that there was quite a bit said about it. This isn't a case where there is absolutely no reference to it at all and the statutory declarations are non-existent. We have seen those sorts of cases, they should not occur. This is not such a case.

PN203

MR RYAN: No. The statutory declarations are full. Whether they are accurate is a completely different picture.

PN204

SENIOR DEPUTY PRESIDENT HARRISON: I understand that, Mr Ryan.

PN205

MR RYAN: If we are asserting that the Commission was completely misled because no matter how full the statutory declarations were there simply wasn't the material there. It is still nothing other than an assertion, and can be nothing other than an assertion. That is the point I am making. We can't prove the assertion until we establish that we are a party aggrieved so that we can be actually heard.

PN206

If the purpose of having the concept of a party aggrieved was that the party had to establish all of the facts beforehand then, in many respects, it is putting the cart before the horse, we have to be able to establish that we have a real interest in the matter. That is the language.

PN207

SENIOR DEPUTY PRESIDENT HARRISON: There would be unlikely to be any registered organisation that couldn't so assert on an appeal against the section 170LK, Mr Ryan.

PN208

MR RYAN: That is exactly the position I say should exist.

PN209

SENIOR DEPUTY PRESIDENT HARRISON: All right. Well then that is what I understand one of the things you want us to say which probably is at odds with a fairly long line of cases.

PN210

MR RYAN: Yes and it is at odds again because as I have said there has been a reliance upon the existence of section 43(2)(b) which does not justify the conclusions that have been drawn.

PN211

SENIOR DEPUTY PRESIDENT HARRISON: I understand. Is this a convenient time for a short break?

PN212

MR RYAN: Yes.

SHORT ADJOURNMENT [11.37am]

RESUMED [11.57am]

PN213

SENIOR DEPUTY PRESIDENT HARRISON: Mr Ryan?

PN214

MR RYAN: If the Commission pleases, I will very briefly deal with print PR930605 which the Commission kindly made available to the parties earlier.

PN215

SENIOR DEPUTY PRESIDENT HARRISON: You might put the name of it on the transcript, Mr Ryan, as well.

PN216

MR RYAN: Yes, Commissioner. It is the Formula 1 Catering Services Pty Ltd t/as Quality Cuisine Catering Application for Certification of an Agreement, a decision of a Full Bench of this Commission on 23 May 2003. If the Commission pleases, the association notes that in that decision there is a discussion over the meaning of section 43(2) and reference to the second reading speech and the explanatory memorandum. Insofar as that decision helps with giving an understanding of section 43(2) the association has no disagreement with that decision.

PN217

The key point of departure is where section 43(2)(b) has a relationship to 43(d). If I can take the Commission to the decision of a Full Bench of this Commission in print P5037 which is the Fluor Daniel matter. It is tab 4 in the list of authorities I have handed up. Essentially the essence of the decision is found at the second last page of that copy of the decision, and about two thirds of the way down that page the Full Bench says:

PN218

In these circumstances it is not necessary to decide whether section 43(2)(b) is itself determinative of the ...(reads)... intention of the legislation. For these reasons the application is incompetent.

PN219

That decision reflects the approach adopted by a separate Full Bench in print P2154 which was the DHL International decision. That is at tab 5 of the folder of authorities. Again, the essential part of that decision is to be found on the fourth page. After a series of dot points the Full Bench says:

PN220

These factual differences from TVF lead us to conclude that in this case the TWU is not a person or ...(reads)... would be contrary to the scheme of the legislation.

PN221

Then they note:

PN222

We add in this regard that an objection on the basis of jurisdiction should be raised at first instance ...(reads)... bar does not exclude the question of jurisdiction it is all embracing.

PN223

The commonality between the DHL decision and the Fluor Daniel decision is that both use essentially the same language, that to allow an appeal to be run under 45(1)(g) in circumstances where:

PN224

The appellant could not oppose the certification of the agreement because of 45(2)(b) would be contrary to the scheme of legislation.

PN225

Both of those decisions have referred to the scheme of legislation and that is an issue which I now turn to. I have already taken the Commission to the second reading speech. The parts I have taken you to are in any event consistent with what is reported in the Formula 1 Catering Services decision. I also would, however, draw attention to the explanatory memorandum. This is at tab 18 of the list of material.

PN226

SENIOR DEPUTY PRESIDENT HARRISON: I think my folder is a little different, explanatory memorandum.

PN227

MR RYAN: Yes.

PN228

SENIOR DEPUTY PRESIDENT HARRISON: I have that at 17.

PN229

SENIOR DEPUTY PRESIDENT DRAKE: So do I. I think you referred to it earlier as 17 Mr Ryan.

PN230

SENIOR DEPUTY PRESIDENT HARRISON: Yes I should have raised it earlier but we all seem to be running one number or one tab different. That's all right, I think we all followed what you said earlier, I just didn't raise the point that I've just raised now.

PN231

MR RYAN: Part of the explanatory memorandum was quoted in print PR930605, the Formula 1 Catering Services case and at the top of page 4 of that decision the decision says:

PN232

A relevant part of the explanatory memorandum accompanying the bill was in these terms.

PN233

And then it sets out the quotation. That is a reference to page 61 of the explanatory memorandum and on page 61, and the page numbers are at the bottom of the explanatory memorandum. Page 61 of the explanatory memorandum deals with that part of the bill that was schedule 9 of the bill dealing with certified agreements and item 5 of schedule 9 of the bill dealt with section 43 and paragraph 9.11 is the explanation of the amendments to section 43 and this is the quotation which appears in the Formula 1 case.

PN234

Now importantly immediately after the amendment made by item 5 of the bill to section 43 there were a number of amendments made to section 45 and these are items 6, 7, 8 and 9 and each of the subsequent amendments to section 45 of the Act are each described as merely being technical amendments. Section 43 amendments were not a technical amendment, it was a quite substantial and substantive amendment and giving effect to the intention by the Minister to exclude unions from intervention at first instance in relation to a section 170LK agreement.

PN235

I asked the Commission to simply note that the only amendments that were made to section 45 through this bill were mere technical amendments, there were no substantial or substantive amendments made to section 45, technical amendments only.

PN236

In terms of the general consideration of this bill before the Parliament the Workplace Relations and Other Legislation Amendment Bill went to a Senate inquiry which traipsed around Australia for a couple of months taking enormous amounts of evidence, it subsequently produced a report and I would seek to tender an extract from the report. I have the full report with me, the trouble is that it's so difficult to photocopy it would not necessarily add anything other than a bit of weight to the Commission's files. The extract I have taken is the index pages for the Senate Economics References Committee Report on the consideration of the Workplace Relations and Other Legislation Amendment Bill 1996 together with an extract from the - - -

PN237

SENIOR DEPUTY PRESIDENT HARRISON: Does the Acts Interpretation Act envisage a document of this nature as being one of the extrinsic materials that a bench may go to in the event of there being any ambiguity in interpreting a statute. I know second reading speech is an explanatory memoranda in the list but this sort of thing, I'm sorry, a report of this nature.

PN238

MR RYAN: Well section 15AB of the Acts Interpretation Act which has all of the extrinsic material that one can reply upon at subsection 2E says:

PN239

Any explanatory memorandum relating to the bill containing the provision or any other relevant document that was laid before or furnished to the members of either house of the Parliament by a Minister before the time when the provision was enacted.

PN240

To the extent that this is a document it certainly does not appear to be a document that was late before or furnished by the Minister. At paragraph 15AB(ii)(h) says:

PN241

Any relevant material in the journals of the Senate in the votes and proceedings of the House of Representatives or in any official record of the debates in Parliament or either House of the Parliament.

PN242

As far as I'm aware the report of the committees becomes incorporated into the debates of the Parliament.

PN243

SENIOR DEPUTY PRESIDENT HARRISON: Yes, all right.

PN244

MR RYAN: I'm not going to place much or great alliance upon this, it simply adds a bit of flavour to the submission that I will subsequently make. What was very clear in this is that the extract that I've taken from the majority report, and this report had three parts to it, the majority report was by the Labor Senators, there was a minority report by the Government Senators and an independent report by Senator Murray for the Democrats. The majority report, the extract from that is in this document at page 99, 100, 101 and 102 and at page 99 of the Senate report there's identification of what the bill is seeking to do, that it's trying to remove union involvement. It identifies then the support of the employers to the bill, the opposition of the ACTU and then its conclusions of the majority report are at paragraphs 4.225 through to 4.229.

PN245

The essence of the report in the conclusions, and without going through it in any detail, is it simply identifies what one would say the features of unions having an interest in agreement making at the first level, that they are the groups who know the industries, they have the award coverage and the agreements would override the award, things which in our submission would be those matters which would have created standing for an organisation of employees. At first instance in relation to any certification of an agreement but for the operation of section 43(2)(b). The majority then says at paragraph 4.229:

PN246

The majority of the committee therefore believes that unions should have the right to intervene in ...(reads)... itself is not affected before the union has an opportunity to be heard.

PN247

The report by Senator Murray for the Democrats: I have extracted his comments and they are at pages 336 and 337 of the Senate report. At page 337 there is a paragraph in bold and Senator Murray had said:

PN248

It is recommended that the Coalition be required to abide by its election policy of retaining ...(reads... the union to be heard in certification hearings where they have no members.

PN249

The tenor of the report and having gone through literally all of the Hansard records relating to the consideration of this Bill I can find nothing other than references to the involvement or non-involvement of unions at the certification process of any hearing. The structure of the explanatory memorandum is clear that the changes to section 43 were concerned solely with the involvement of unions at a certification hearing for a non-union agreement.

PN250

I draw attention now to the approach adopted by this Commission and also the approach adopted by the Federal Court in the Tweed Valley case. If I take the Commission first of all to the decision of the Full Bench of this Commission in the Tweed Valley matter; it is after tab 7.

PN251

SENIOR DEPUTY PRESIDENT HARRISON: Do we need to go to that? I would have thought that may be just going to Full Bench decisions of this Commission after the Federal Court decision in Tweed Valley might be all we needed. I can understand you might want to take us to the Federal Court decision but do we have to go to the Commission decision that preceded the Federal Court decision? Given that the cases you complain of are all after the Federal Court decision in Tweed Valley I am wondering whether we need to be taken down this road anyway?

PN252

MR RYAN: No, it might be over-kill.

PN253

SENIOR DEPUTY PRESIDENT HARRISON: It could be.

PN254

MR RYAN: I will take the Commission then to the Federal Court decision; this is behind tab 6, at page 3 of the decision and putting this very nicely into context. The decision was handed down on 24 April 1996. The second reading speech for the Workplace Relations and Other Legislation Amendment Bill was 23 May 1996. The whole of the Tweed Valley exercise occurred before the Bill was introduced into Parliament and the Tweed Valley exercise was clearly known at all stages to the Parliament.

PN255

At page 3 of the Court decision, about the middle of the page, under the heading The Issues. The judgment of Wilcox CJ and Marshall J notes:

PN256

This case has generated considerable comment and publicity not all of it accurate. It may assist comprehension if we immediately state some of the matters that do not fall for our determination.

PN257

Then they go on:

PN258

First, we are not concerned with the question whether it is desirable or undesirable for Australian Industrial ...(reads)... policy issues to be determined by Parliament not Courts.

PN259

Then they identify, broadly, the second issue which is that it is essentially an application for some prerogative relief. It is interesting, if nothing else, that the Court felt compelled to at least say what it wasn't about. That was the Court being very mindful of the enormous amount of publicity that had been generated over the whole of the Tweed Valley issue in 1995 and 1996.

PN260

At page 9 the joint judgment at the bottom of the page, under the heading The Hearing Before the Full Bench, says:

PN261

AFMEPKIU sought leave to appeal to the Full Bench of the Commission against Commissioner Redmond's decision ...(reads)... sections 170MC and 170MG and therefore had failed to exercise the jurisdiction committed to him.

PN262

Then it goes on and cites on page 10 what is the provision from section 45.

PN263

SENIOR DEPUTY PRESIDENT HARRISON: Mr Ryan, I really don't know that this is of assistance to us in the circumstances of this case. In Tweed Valley, as I recollect it, the union both had a right under the then legislation which is now being repealed and it exercised that right before Commissioner Redmond.

PN264

MR RYAN: Yes.

PN265

SENIOR DEPUTY PRESIDENT HARRISON: It was then an appellant.

PN266

MR RYAN: Yes.

PN267

SENIOR DEPUTY PRESIDENT HARRISON: And you have just taken us to the ground that it relied upon - only the excessive jurisdiction ground - not the ground it replied upon to assert the error. Now, that is really not what is concerning us here. What is concerning us here - and I think you have put it as well as it is going to be put, Mr Ryan, and by putting it again I don't think it improves. I think you have made it clear what you say is the error that has crept in to the reasoning process of Full Benches. I think you have made it clear as to what you think are the special interests that registered organisations have that should make them, or should persuade a Full Bench, to find that they are persons aggrieved.

PN268

MR RYAN: Yes.

PN269

SENIOR DEPUTY PRESIDENT HARRISON: I just wonder what further assistance we are going to have here.

PN270

MR RYAN: I was going down this path because of a comment your Honour made that essentially what I am saying is that in any section 170LK proceeding any organisation of employees would effectively be able to appeal if it can establish that it is the person aggrieved. That is essentially what - that is the logic of the case that I am submitting. That section 45(3)(d) will allow unions, any union that can establish that it has an interest, to appeal against matters where it is simply statutorily barred from intervening in the first case. You indicated at that stage, may be we have to look at the decisions.

PN271

Both DHL and Fluor Daniel talk about the statutory context of the Act as supporting the removal, or the watering down, of the concept of what is "a person aggrieved" so that it does not apply to a person who is statutorily barred at first instance. There is a very clear attempt to distinguish Tweed Valley from what came after on the basis of the Act change and, essentially because the issues in relation to Tweed Valley were exactly that the union did have a statutory right at first instance to be involved and also that there was a secondary issue that the Commission had the capacity not to certify on public interest grounds.

PN272

Both of those were very specific changes made by the legislation, the Workplace Relations and Other Legislation Amendment Bill 1996 but where Tweed Valley and the Federal Court decision makes very clear, at page 21 of the Joint Judgment in Tweed Valley, Wilcox CJ and Marshall J deal with the heading, Existence of Right of Appeal. They say:

PN273

We disagree with almost every step in the arguments put to us concerning the existence of a right of appeal ...(reads)... We are not aware of any authority for this.

PN274

They then go on and if I draw the Commission's attention to page 22 of this print and halfway down the paragraph beginning, Proper Construction, the paragraph reads:

PN275

The proper construction of a validly enacted provision has to be determined from the words used and their context ...(reads)... without having to revert to judicial review of the decision concerned.

PN276

Then it goes on:

PN277

This purpose is readily understandable especially when it is remembered that at the time the only venue for judicial review was the High Court ...(reads)... and decisions receiving approval.

PN278

There is a bit more on that and then the very last sentence of that paragraph:

PN279

Provided the single member acted within jurisdiction that would be the end of the matter.

PN280

Next paragraph:

PN281

Notwithstanding its policy to encourage enterprise flexibility agreements Parliament would have been aware that it could not prevent challenges to approvals on jurisdictional grounds.

PN282

SENIOR DEPUTY PRESIDENT HARRISON: Why are we going through this? How is it going to help us to decide whether either appellant is a person aggrieved, if they are it seems that you are able to be heard on 45(1)(g). This is what this is all about and we are not there yet. This full court did not need to concern itself about the person aggrieved did it because the AMWU clearly was in the circumstances before us.

PN283

MR RYAN: Yes.

PN284

SENIOR DEPUTY PRESIDENT HARRISON: I cay clearly was, it is bound, given the facts and given the legislation at the time it was.

PN285

MR RYAN: Yes. DHL and Fleur Daniel talk about the context of the Act and the link between 43(2)(b) and 43(d). Parliament in making the changes to section 43 by introducing section 43(2)(b) must be taken to have acted in the knowledge of the approach of the court in Tweed Valley. A very clear identification that there is a difference between jurisdictional issues and non jurisdictional issues and there is a very clear reading and interpretation of section 45(1)(g).

PN286

Section 45(1)(g) cannot be read down by the other provisions. On that basis the amendment of section 43 by the introduction of 43(2)(b) could not and did not operate at any stage to read down 43(d). That's very clear from the approach adopted by the Industrial Relations Court of Australia in the Tweed Valley case. It is consistent with proper statutory interpretation that 43(d) not be read down at all by the fact that the Workplace Relations and other Legislation Amendment Bill introduced a statutory bar to block parties from intervening in the certification process.

PN287

Because appeal provisions are of themselves beneficial provisions then they must and should be interpreted favourably and broadly and if we establish that we have even one aspect of being a person aggrieved then we are home and hosed. There is simply no possibility of section 43(2)(b) being used to read any limitation whatsoever into section 43(d) and in so far as the matter goes, essentially the Commission must look at a party claiming to be a person aggrieved as if section 43(2)(b) did not exist. It's that irrelevant to the determination of whether or not we are or are not a person aggrieved. If we have an interest as we do have in the current operation of the STA Bertha One Certified Agreement of 1999, we have real interest in ensuring that the jurisdiction of the Commission is properly exercised. Our interest is not that of an intermeddler or a busybody.

PN288

We have a special interest to ensure that a certified agreement meets properly the statutory tests laid down for the certification of agreements. That interest is a special interest in the subject matter. I say special interest because that is the nature of an interest which is more than that of a person in the street or the intermeddler or busybody. The limitations that also appeared in the DHL, Fluor Daniel and Caness Frasers decisions about the notion of the categories of what constitutes a person aggrieved. There seemed to be about four items only that were looked at.

PN289

In the Tweed Valley case and the DHL case, the Commission concentrated on issues such as the organisation of employees was concerned with the maintenance of members, conditions of employment, whether it had participated in the proceedings at a first stage, whether there was potential for industrial disputation. We say that some of those issues are simply too narrow, that even where an organisation such as the STA at the Federal level has not been given authority for the purposes of section 170LK(4), that as long as we have an interest which is an interest above that of an ordinary member of the public, then that is sufficient under the general authorities to make us a person aggrieved.

PN290

In Toohey's case, Ellicott J, and this is cited in the Tweed Valley decision of the Industrial Relations Court and the Toohey's case has been essentially picked up as a starting point for a lot of the discussion about persons aggrieved and it is a very broad approach to whether or not a person has an interest which is simply an interest beyond that which he or she has as an ordinary member of the public. If the interest is only that of an ordinary member of the public, then it's not an interest sufficient to be a person aggrieved. If the interest is higher than that, then a person can be a person aggrieved for the purposes of initiating an appeal under section 45(3)(d).

PN291

Unions such as the STA both at the State and Federal level are clearly persons within the interest much higher than that of any ordinary member of the public. Our interest is in ensuring that an agreement which is certified by this Commission is done so properly and that the Commission acts within jurisdiction. That is because it affects both the operation of the conduct of the organisation in negotiating and having certified our own agreement as well as ensuring that an agreement is properly certified in accordance with all of the provisions of the Act so that there is no disadvantage to employees whether or not they be members of the Association in an industry where the Association is the dominant employee organisation and the only employee organisation with rights under the Workplace Relations Act to represent the industrial interests of persons.

PN292

We don't have to go through any fine detail of establishing whether or not a person asked us to have an interest in this particular matter. We have that interest as an organisation under the Act. At the Federal level we are the organisation that has prime carriage of improving terms and conditions of the safety net Award, the National Fast Food Retail Award. At the State level the organisation is the union that has prime responsibility for the New South Wales Shops Award which, as a State award, specifically covers fast food industry in New South Wales as well as at the State level, being the organisation with primary responsibility for maintaining the efficacy of the State Training Wage Award, which is appended to the State Retail Award.

PN293

Our interests are not insignificant. Our interests are real. They are not merely emotional interests or intellectual interests. They are interests of substance and they are interests which go to the very existence of an association of employees who has as its objects the advancement of the terms and conditions of employment of all persons whether or not they be members of the association or not. The reality is that if we concentrated on union members and allowed non-union members to have any conditions we like, we'd end up with a dual class structure in the workplace.

PN294

The fact that associations create disputes against employers who employ potential members of the association not even actual members is so that the association can genuinely protect the interests of its members as well as the interests of those who are non-members. That's more than sufficient, more than sufficient, to give us standing. In circumstances where our appeal document at least identifies issues which we say go to very substantial and fundamental jurisdictional matters relating to the purported conduct of a member of the Commission in certifying an agreement under the Workplace Relations Act.

PN295

And where we are making assertion to allegations that there has been significant error on the part of a member of the Commission in exercising jurisdiction or in acting as if he had jurisdiction where we assert or allege that he did not have jurisdiction, then they are matters which give us standing. We are aggrieved and we have a real and not an intangible interest in the proper administration of justice and that interest is not the mere interest of a person in the street who, as the case is often referred to, everyone's got an interest in the administration of justice but ours is a particular interest or a special interest and as a special interest, it is more than sufficient to give us standing.

PN296

SENIOR DEPUTY PRESIDENT HARRISON: Mr Ryan, I think at the beginning I raised a question about what the matter that would be addressed today would be confined to. I had thought probably that we would confine ourselves just to whether you are a person aggrieved. The submission you have just made asserts that the grounds of appeal do raise matters that identify fundamental jurisdictional matters we could hear under 45(1)(g). Now, if we are going to buy into that, that is another area of argument again.

PN297

MR RYAN: Yes. I make those comments in light of the discussion we'd had earlier, that at this stage, they are simply nothing other than an assertion.

PN298

SENIOR DEPUTY PRESIDENT HARRISON: I understand.

PN299

MR RYAN: But I make the assertion on the basis that we say that to make an assertion of such strength is part and parcel of being the person aggrieved. It is identifying that our interest is more than that of the average person in the street. The average person in the street might say, I had an interest in the administration of justice per se. Everything should be done right. Our interest is that of a party who will be affected directly by the ongoing operation of the Bertha Group Certified Agreement if it is validly within the jurisdiction, by raising, at least assertions or allegations that there are serious doubts about that jurisdiction.

PN300

That is simply an indication of our special interest. I use that word special interest because it is language that comes up constantly in the cases on party aggrieved. It's the nature of just trying to identify what puts us into a category when we have something more than the average person in the street and the average person in the street is probably not concerned with whether or not there is a proper application of the no disadvantage test or whether an agreement under 170LK has met the conditions precedent for attracting jurisdiction. They are not issues which the average person in the street would either comprehend or be interested in.

PN301

They are vitally important to the association because the ongoing operation of this agreement will extinguish rights that we have and currently have under the operation of the Bertha 1 Certified Agreement of 1999. I will finish by making two clear points. The first is that the Tweed Valley decisions, both of the Full Bench and of the Industrial Relations Court are still vitally important and relevant to a proper approach to the question of a person aggrieved in the context of the Act and I draw attention to briefly the decision of the High Court in the Alcan case and this is at tab 9 of the folder. This case is not unique in stating a broad principle but it does so very simply by making clear that where Parliament re-enacts legislation and uses the same wording where that wording has been the subject of judicial construction, then Parliament is taken to have intended that the words will bear the meaning that has already been judicially attributed to them and this is referred to at page 8 of the Alcan decision and it's about a third of the way down. They were making two points in this matter and they say:

PN302

The second is that Parliament re=enacted in section 4(1) of the Act words which were almost identical to those considered in Reg v Portus ...(reads)... to bear the meaning already judicially attributed to them.

PN303

We say that on that basis the very expansive approach given to the meaning of section 45(3)(d) and the approach in relation to a person aggrieved in the Tweed Valley case is still relevant because there was no attempt by Parliament to alter at all any of the language of section 45(3)(d) relating to person aggrieved, no attempt to limit it in relation to 170LK matters.

PN304

The final point I make is that I draw attention to a decision of a Full Bench of this Commission at print T2672, it's behind tab 8 in the folder, a decision of a Full Bench of Vice President Ross, Senior Deputy President Williams and Commissioner Foggo in October 2000 in relation to Saphron Pty Limited and at paragraph 51 of the decision which is page 11 of the print commencing at the third line in that paragraph:

PN305

We are required to construe the regulation in the light of its purpose or object, not to rewrite it ...(reads)... redrafting legislation nearer to an assumed desire of the legislature.

PN306

As Bowen CJ said in Re Application of the News Corporation Limited case:

PN307

A more important rule in this context is that embodied in section 15AA of the Acts Interpretation Act ...(reads)... or object underlying the Act.

PN308

As the Full Bench in that noted:

PN309

The Commission is required to construe the regulation in the light of its purpose or object not to rewrite it.

PN310

I sense in reading most of the decisions since DHL, Fluor Daniel and K&S Freighters that there has been an effective attempt by the Commission to re-write the legislation by importing limitations into the wording of section 45(3)(d) which simply are not warranted and are not consistent with the broad purposes of statutory interpretation. I've attached a number of decisions, a number of decisions relating to statutory interpretation. I do not intend to take the Commission to all of them.

PN311

The High Court seems to have been quite impressed with a decision of the New South Wales Supreme Court in a case known as Kingston v Keprose Pty Limited and this is at tab 10 of the book and McHugh J before his elevation to the High Court at page 423 and on page 424 of that decision talks about the purposive approach of statutory interpretation. McHugh Js comments and approach there have been adopted by the High Court consistently since then and there is at least unanimous view within the High Court that the purposive approach as outlined in the decision in Kingston v Keprose is the proper approach and the specific language used by McHugh J in Kingston v Keprose has found great favour with members of the High Court in terms of understanding what is meant by the purposive approach to statutory interpretation.

PN312

In our submission if you apply that approach then following the normal approach to what constitutes the person aggrieved our interest only has to be that above that of the person in the street as long as we are not seen to be merely an inter meddler or busybody but we have a real interest or a special interest then that is sufficient to activate the jurisdiction of the Commission on appeal.

PN313

We submit that we have shown that we do at least have that interest if for no other reason than for the operation of the Bertha 1 Certified Agreement but additionally we say we have that interest because of the status we have as an organisation registered at the Federal level and our role in ensuring the efficacy of the award system there and our status as an organisation registered under the Industrial Relations Act New South Wales where we have a very real interest in maintaining the efficacy of the award system in New South Wales and, more importantly, New South Wales maintaining the efficacy of the training wage system and the training system in New South Wales.

PN314

The jurisdictional allegations and assertions that we make about the failure of the approach of the Commission in certifying the Bertha Group Certified Agreement simply in our submission adds weight to our status and standing as a person aggrieved by the decision of the Senior Deputy President in certifying the Bertha Group Certified Agreement 2004. If the Commission pleases.

PN315

SENIOR DEPUTY PRESIDENT HARRISON: Yes, thank you. We will probably take a short break in a moment to consider how we wish to proceed with the matter. I see it is almost close to the usual time when we adjourn for lunch anyway but Mr Darcy, what we would like you to do is now make whatever submission it is that you wanted to concerning the interaction between the existing 170LJ and the agreement that was said to cover trainees and managers as certified by Senior Deputy President Duncan.

PN316

MR DARCY: I should also say for the bench's information, I don't expect to be spending the amount of time Mr Ryan has spent on this matter, my submission will probably only run half an hour to three quarters of an hour at the maximum. If it pleases.

PN317

SENIOR DEPUTY PRESIDENT HARRISON: Thank you.

PN318

MR DARCY: The question which I think is also pertinent that you asked me earlier in relation to the number of trainees at both sites, at Bertha 1 there is 15 and at Bertha 2 there are five and the agreement itself, the statutory declarations indicated at the time that there were 38 employees altogether. I should also indicate that - - -

PN319

SENIOR DEPUTY PRESIDENT HARRISON: Yes, can I assume that the balance are managers.

PN320

MR DARCY: No, the balance at the Bondi Beach which is Bertha 2 are shop assistants covered underneath the Shop Assistants Award, the State Shop Assistants Award and the balance at Bertha 2 are still covered underneath the Bertha 1 Certified agreement 1999. There are some, I should point out, who are managers but I can get exact figures if it pleases.

PN321

SENIOR DEPUTY PRESIDENT HARRISON: May I be blunt about this. For myself, I have some concerns as to whether Mr Ryan has persuaded me to part company with the line of full benches to date but he has put good submissions as to why we should revisit them and ascertain whether in fact they do what he asserts, namely, do not give separate consideration to the person aggrieved. However, and assume for the time being that he has said all that could be said about that but perhaps he hasn't quite persuaded me to part company.

PN322

There is one thing that concerns me very very much and that is the submission that he makes about the effect of the existing 170LJ agreement to which is organisation is a party and about which the Senior Deputy President was assured below would not be impacted upon by the certification of the agreement being presented to him. It was presented to him on the basis there were 38 employees who voted and one assumes those employees would have been limited to the employees who were proposed to be covered by the agreement, namely, trainees or managers no one else and it was indicated to him that in the case of other employees they would continue to be covered by the LJ and presumably as a matter of law covered by the State common Law Award.

PN323

May I take a short break and allow you to say what you wish about that. The Commission will now adjourn.

SHORT ADJOURNMENT [1.03pm]

RESUMED [1.34pm]

PN324

SENIOR DEPUTY PRESIDENT HARRISON: We have been discussing this matter and the various points that arose for our consideration. We are inclined now to the view that we would prefer that the parties also address the question of whether leave should be granted and in that respect we had in mind this question, whether section 45(1)(g) is enlivened in the manner in which the grounds of appeal suggest it is.

PN325

Now, that I know is not the indication that came from my Chambers to each of you last week, that indication being that we would confine ourselves to the matter that Mr Ryan has addressed. On reflection now we think that both of those matters should be the subject of submissions. I think that leads us to all looking at our diaries to find another half day. When we resume, Mr Darcy, you can answer the question that I put to you before we adjourned but we do not need an answer to that now. So, shall we go off transcript just for a short time to talk about another half day. Well, probably we should set aside the day but if we finish in half that would be nice.

OFF THE RECORD [1.35pm]

RESUMED [1.39pm]

PN326

SENIOR DEPUTY PRESIDENT HARRISON: This matter is now adjourned to Friday, 17 September here in Sydney at 10 am. The Commission now adjourns.

ADJOURNED UNTIL FRIDAY, 17 SEPTEMBER 2004 [1.39pm]