C2004/1350, Transcript of Proceedings [2004] AIRCTrans 3684 (16 September 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N13539

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT MARSH
SENIOR DEPUTY PRESIDENT LLOYD
COMMISSIONER LAWSON

C2004/1350

APPEAL UNDER SECTION 45 OF THE ACT
BY ANDREW PORTER AGAINST THE CERTIFICATION
OF AN AGREEMENT BY COMMISSIONER RAFFAELLI
AT SYDNEY ON 4 JUNE 2004 in AG2004/3618

SYDNEY

10.00 AM, TUESDAY, 7 SEPTEMBER 2004

PN1

SENIOR DEPUTY PRESIDENT MARSH: Good morning. I will take appearances, please.

PN2

MR D. CHIN: If it please the Commission, I seek leave to appear for the appellant, Mr Porter. I am instructed by MS McROBERT.

PN3

MR M. McDONALD: If the Commission pleases, I seek leave to appear on behalf of Qantas Airways Limited with MR N. OGILVIE.

PN4

MR M. McCAULEY: If the Commission pleases, I appear on behalf of the AMWU.

PN5

MS M. LAMBERT: If the Commission pleases, I appear on behalf of the Australian Workers Union.

PN6

SENIOR DEPUTY PRESIDENT MARSH: Any objections to applications for leave to appear. They are granted.

PN7

MR McDONALD: Your Honour, just before Mr Chin commences. Your Honour may have seen that in the written submissions which have been filed on behalf of Qantas we have raised a question as to the competency of the appeal, and in particular Mr Porter's standing to agitate the appeal as a person aggrieved within the terms of section 45(1)(d)(3). We have also raised squarely the question of whether or not leave to appear should be granted in the public interest.

PN8

It is our submission that those are threshold issues which it is appropriate in the circumstances of this case to be dealt with as threshold issues. In particular, your Honour, I can foreshadow that - the bench I don't think has seen it yet - but yesterday afternoon we were served with a lengthy witness statement and annexures from Mr Porter, which we understand the appellant is going to seek leave to tender in these proceedings, which is highly controversial and which if it was placed before the Commission and accepted into evidence we would certainly be pressing for an adjournment to respond to those matters.

PN9

If the case was to proceed in relation to the matters raised in that material these proceedings, we submit, would immediately become of much greater magnitude than is presently the case. That is if they are contested factual matters which would need to be determined. Now, in light of those circumstances we do submit that it is appropriate that the bench hear from the parties on the threshold issues which have been raised, before traversing into the substantive issues underlying the appeal.

PN10

SENIOR DEPUTY PRESIDENT MARSH: Yes, Mr Chin?

PN11

MR CHIN: May it please the Commission, I would oppose that course. Your Honours would appreciate the question of the granting of leave in these proceedings rests in significant part upon whether or not the substantive grounds for appeal in the appeal proceedings, in a substantive sense, is arguable and whether it raises jurisdictional issue of a merely trivial or significant degree.

PN12

To the extent that the question of leave depends upon a determination by this Appeal Bench as to the extent to which the appeal grounds are arguable, in my submission it is convenient to proceed upon the basis of submissions on leave in addition to the substantive appeal. I am and intend to respond tot he submissions lodged by Mr McDonald's client in the course of agitating the substantive appeal. That is on the questions of standing and in relation to the question of leave.

PN13

In relation to the issue of additional evidence. We have foreshadowed in our submissions - served, I think, on 12 August 2004 - that it is the appellant's intention to file further evidence in the proceedings. The parties have been on notice of that for some time. We have received no indication, other than an objection from Qantas Airways Limited, an objection to the matter or the evidence being filed prior to it being sought to be tendered before this Full Bench. We have received no indication that the employer has intended to respond or file any further evidence of its own.

PN14

COMMISSIONER LAWSON: How could Qantas have objected to it when it didn't know what it was until last night? And with very great respect, Mr Chin, we haven't seen it.

PN15

MR CHIN: Yes, in relation to the evidence to be relied upon. The evidence for the appellant is largely, in substance, foreshadowed in the written submissions of the appellant. That is, the case for the appellant is that he as well as a potentially substantial number of other employees of the company were effectively disenfranchised.

PN16

COMMISSIONER LAWSON: No one was to know that until such time as apparently you filed a witness statement last night. So, how could Qantas possibly have notified you of a possible objection.

PN17

MR CHIN: With respect, your Honour, the substance of the appeal that is the grounds that the appellant was effectively disenfranchised was notified in the notice of appeal and the written submissions filed by the appellant. The respondents have had notice of that. The appellant has also set out in its written submissions a number of background factual matters about which there is no contents, apparently. And about which the affidavit material, which I would seek to tender, addresses.

PN18

That is, the fact that the appellant was covered by this subject agreement, or is covered by it. That the appellant is one of a large number of employees who are covered by it and who are not members of the AMWU or the AWU but rather are members of the Australian Licensed Aircraft Engineers Association. These are all background matters about which the affidavit material - which I would seek to tender - addresses. And which, in my respectful submission, appear to be uncontroversial on the submissions that have been filed.

PN19

COMMISSIONER LAWSON: I think Mr McDonald has a different view of the content of that statement because he is fortunate enough to have seen it.

PN20

MR CHIN: Yes. Can I just clarify one matter? That is that the affidavit material was filed yesterday, not last night as such. That is served, not filed. I appreciate, your Honours, that the filing of further evidence in appeal matters are ordinarily not the practice or uncommon in appeal proceedings. But in a matter of this nature, in my submission, it is clear that my client was not represented at the proceedings below about which he appeals. That he had no notice of the hearing or the proceedings before Commissioner Raffaelli. So that this Full Bench is not dealing, as it were - - -

PN21

SENIOR DEPUTY PRESIDENT MARSH: Well that was not a requirement; was it? He was not party to the agreement.

PN22

MR CHIN: That is correct, that is correct.

PN23

SENIOR DEPUTY PRESIDENT MARSH: So that can't be a criticism.

PN24

MR CHIN: Well, no, no, it is not a criticism. I merely raise that to make this point, that this Full Bench is not dealing with an application whereby an appellant had an opportunity but failed to do so to bring evidence at first instance. The appellant comes before this Commission - - -

PN25

SENIOR DEPUTY PRESIDENT MARSH: I see, yes.

PN26

MR CHIN: The Full Bench for the first time in relation to the evidence that he wishes to put. Can I say, the indication that we have received from the parties - firstly from Qantas Airways. Notwithstanding, and I accept, that they have not until yesterday been aware of the substance of the evidence. Nonetheless, we have had no indication that they had intended to call any further evidence, only to rest on the paper and the material before Commissioner Raffaelli at first instance.

PN27

Similarly, in the AMWU's written submissions in response to the notice that we have given of an intention to file further evidence. All we have had is an indication that they would reserve their right to make submissions and not to file any further evidence in response to it. In relation to the AWU's written submissions we had not received those until late yesterday and those submissions are silent on this issue.

PN28

SENIOR DEPUTY PRESIDENT MARSH: Which submissions didn't you receive until late yesterday?

PN29

MR CHIN: That is the submissions of the AWU. Before I go on in relation tot his matter. It is submitted for the appellant in brief terms that the reasons for and the grounds for appeal in these proceedings raise a substantial issue of public interest. If we are correct in our argument, up to approximately 130 to 140 non-members of the AWU or AMWU, that is members of the Australian Licensed Engineers Association including the appellant were not given a reasonable opportunity to approve the agreement.

PN30

SENIOR DEPUTY PRESIDENT MARSH: But we are only dealing with the circumstances of Mr Porter on appeal.

PN31

MR CHIN: That's correct. It's been said against us in the papers that in some capacity Mr Porter seeks to appeal as a representative or something of that nature. Really, that's beside the point. Mr Porter appeals in his individual capacity as he is entitled to do as an aggrieved person and I have submissions to make in reliance upon, for instance, the High Court authority in re NTEU ex parte Quickenden, where it was expressly stated by Toohey J that an individual member of an organisation who is not party to a certified agreement under challenge has standing to appeal under section 45(3)(g) I think, in relation to that person's capacity as a person aggrieved.

PN32

And I was intending to take your Honours to that authority in due course but in any event, the certified agreement, one of the grounds relevant to these proceedings is that the certified agreement before Commissioner Raffaelli patently, on the materials before him was not at the certified agreement which was approved or which was, sorry, I withdraw that. The certified agreement certified by Commissioner Raffaelli was not the same agreement as that approved or purported to have been approved by the members of the AMWU and the AWU.

PN33

COMMISSIONER LAWSON: Well, with respect it was approved by a valid majority of employees of the employer. Isn't that the evidence raised by the statutory declaration?

PN34

MR CHIN: Well, the statutory declaration is interesting and has to, in my submission, be appreciated in light of the submissions that were actually made to the Commissioner.

PN35

COMMISSIONER LAWSON: The statutory declarations are taken on their face value unless they are proven to be false. The Commission must be able to rely upon statutory declarations.

PN36

MR CHIN: Yes. The statutory declaration. Does your Honour have the appeal book filed?

PN37

COMMISSIONER LAWSON: Yes I do.

PN38

MR CHIN: Can I take your Honour to - - -

PN39

COMMISSIONER LAWSON: My point, Mr Chin, is you are distinguishing between approval by members of two unions. By inference there was not approval or participation in the approval process by other persons whether they were members of those two unions or not, or another union or not.

PN40

MR CHIN: Yes. That's correct. That's one part of the appeal. I was going to say, your Honour, that the patent aspect of the matters or the material before Commissioner Raffaelli was that it was explicitly put before him that at least the rate for adult apprentices that was approved by the members of the AWU and the AMWU was lower than the rate for that category of employee in the agreement actually certified and on the face of their record of the proceedings in my submission, to which I want to take the members of the bench, it's patently clear that Commissioner Raffaelli had before him an agreement in terms as amended in the hearing, the certification hearing itself, different in terms and different in substance to the agreement approved.

PN41

COMMISSIONER LAWSON: Does that in any way impact upon Mr Porter?

PN42

MR CHIN: Mr Porter is not an apprentice as I understand. It nevertheless is relevant in this way. Firstly, whether or not the rate affected Mr Porter's classification, nevertheless the Commission did not have before it a competent application and if the Commission doesn't have a competent application, it has no jurisdiction to certify the agreement.

PN43

SENIOR DEPUTY PRESIDENT MARSH: So you say there was no jurisdiction before the Commissioner because the agreement hadn't been properly approved.

PN44

MR CHIN: That's correct.

PN45

SENIOR DEPUTY PRESIDENT MARSH: I see.

PN46

MR CHIN: We put it in two ways. In accordance with your Honour's decision in re CSIRO Enterprise Agreement, which is contained in our list of authorities. It's reported at volume 124 IR at 362, and also the decision of Grocon Enterprise Agreement, again listed in our authorities, section 170LI(2) in combination with section 170LJ(2) and (3)(b) establish clearly that if the requirements outlined in section 170LJ are not met. That is if an agreement is not met with the approval of a valid majority of employees, then the Commission - discretion under section 170LT doesn't arise.

PN47

There is simply no valid application before the Commission and on the strength alone in my submission of the change in relevant rates in relation to the application before Commissioner Raffaelli, that position arose. There was no valid application before the Commissioner.

PN48

MR McDONALD: My friend seems to be moving away from the question which arose at the outset, that is whether or not the question of whether - we still haven't heard how it is that Mr Porter is a person aggrieved. We've heard lots of arguments that might be advanced if Mr Chin was appearing for the registered organisation but he still hasn't pointed to a single clause in the agreement which has any adverse affect at all on Mr Porter and perhaps we can hear that in due course but with respect we do press our application that the question of whether or not Mr Porter is a person aggrieved be dealt with as a threshold matter.

PN49

I should indicate to the Commission that my friend really doesn't come to the Commission with entirely clean hands in this case and I know that's a serious submission put on the record but the position is this. On 3 June, that is the day before the certification of this agreement, the ALEA were in proceedings before Commissioner Raffaelli involving this very same group of employees, the production planners, and they were represented by Mr Norris, who's their industrial officer. Proceedings concerned in a dispute under section 99, that is a notification of alleged dispute of bands imposed by production planners.

PN50

During the course of those proceedings it was put on the record that this very agreement about which this appeal is concerned was about to be certified in the next few days and Commissioner Raffaelli made the point on the record that if the certified agreement - if the agreement was certified then that would be a matter which would bear directly upon the interests of this group of employees, the production planners. Now, notwithstanding all of that the ALEA, for reasons which aren't clear and probably aren't particularly relevant, did not appear at the certification proceedings the following day, the following morning, on 4 June.

PN51

Now, they haven't lodged an appeal against the certification and for very good reason, that is they'd be confronted with a very difficult question as to how is it that you now seek to appeal against the certification when you were informed in proceedings before Commissioner Raffaelli. On 3 June that certification proceeding was pending. You weren't there. How can you possibly seek now to agitate matters involving additional evidence which you could have put in those proceedings as an intervener but which you haven't. They don't do that because they can't.

PN52

What do they do? We have Mr Porter appear in a class action in the Commission on behalf of 130 or 140 other production planners seeking to agitate the very sort of material which should properly have been put by the registered organisation in the proceedings on 4 June and I have the transcript and I hand up copies of the transcript to the Commission and we put our friends on notice of this.

PN53

MR CHIN: I object to this course. My learned friend is - and I object to the tender of the transcript. This matter was brought to our attention late last night. The transcript was included in the list of authorities for some reason, of the Qantas Airways, a supplementary list as I understand it. It really is in the nature of fresh evidence. Now, if my learned friend is objecting to our tender of fresh evidence then he can hardly be seen to do or attempt to do the same. It's simply an attempt to admit fresh evidence and for the moment I would ask that the Commission not have regard to it.

PN54

MR McDONALD: Well, could I respond to that objection? Objection's been made to the tender. It's a novel proposition that transcript of Commission proceedings is evidenced. It's a Commission record. So, with respect, the objection should be despatched quickly and I press that the Commission look at the transcript and look at paragraphs 186 through to 195 which verifies all of the matters which I've just put on the record.

PN55

SENIOR DEPUTY PRESIDENT MARSH: Mr McDonald, can I just ask you why are you taking us to this now when you - why is this relevant to your argument that we should rule, that we deal with these two threshold issues?

PN56

MR McDONALD: Because it - - -

PN57

SENIOR DEPUTY PRESIDENT MARSH: We seem to be straying into all sorts of areas.

PN58

MR McDONALD: I'm sorry, your Honour.

PN59

SENIOR DEPUTY PRESIDENT MARSH: And it's not just you.

PN60

MR McDONALD: It goes to the question of why it is that the Commission should take the unusual course of dealing with an issue which in the normal course of events I can see would be dealt with along with all other issues. It does, I submit, it does raise a clean hands issue which is relevant to the question of whether or not Mr Porter should properly be regarded in his own right as a person aggrieved, or simply as a representative of the ALEA agitating organisational interests which could, and should, properly have been agitated by the ALEA on 4 June in the certification proceedings.

PN61

So it goes to the question of (a) that there is a substantive issue as to whether or not Mr Porter should properly be regarded as a person aggrieved and (b) the question as to why the Commission should adopt an unusual course of dealing with this issue as a threshold issue and rule on it before proceeding to consider other matters raised.

PN62

SENIOR DEPUTY PRESIDENT MARSH: But how would it have been possible for that organisation to intervene in the proceedings before the Commission?

PN63

MR McDONALD: They could have done so on two grounds your Honour. Firstly, they could have appeared as an agent on behalf of a group of members and there's authority for that proposition. It is the - - -

PN64

SENIOR DEPUTY PRESIDENT MARSH: Just tell me which intervention, just which part of the Act, that's all I'm interested in, under 43.

PN65

MR McDONALD: Section 43(1), they just could have appeared as an intervener representing - - -

PN66

SENIOR DEPUTY PRESIDENT MARSH: But doesn't 43(2) apply to certification of agreement?

PN67

MR McDONALD: They could have - these are the very arguments which were agitated in the Grocon proceedings by the CFMEU. The case that's being run here by the ALEA - - -

PN68

SENIOR DEPUTY PRESIDENT MARSH: The distinction being whether there's is a valid application, yes I know the one.

PN69

MR McDONALD: That's right your Honour. This is on all fours with Grocon and all they had to do was to stand up before Commissioner Raffaelli and say, there's Grocon - - -

PN70

SENIOR DEPUTY PRESIDENT LLOYD: As distinct from LT, yes I know the distinction.

PN71

MR McDONALD: Yes, but they could have simply appeared as an agent and there's a decision, a Full Bench headed up by Vice President Ross, the Bread Trade Interim Award 1994 print T2319, and the relevant paragraph is at paragraph nine:

PN72

Mr Tullgren an officer of the ALHMWU sought leave to intervene on behalf of certain employees. It is apparent that Mr Tullgren was acting as an agent for the relevant employees and not as a representative of the union.

PN73

On that basis it was held by the Full Bench that the union was entitled to exercise a general right of intervention under section 43. So that is the basis upon which the ALEA could have agitated all of these arguments before Commissioner Raffaelli.

PN74

MR CHIN: Your Honours in my submission none of what Mr McDonald said is relevant in relation to these proceedings. None of it was raised in their written submissions. The first time we have heard of any submission of this nature is this morning. I appear for Mr Porter in these proceedings. I do not appear for the ALAEA. Mr Porter properly is the person aggrieved by this decision. There is no authority for the proposition put by my learned friend that a grievance in relation to a certified agreement must arise from the terms of the certified agreement itself.

PN75

Mr Porter's grievance put squarely is that as a result of Commissioner Raffaelli's decision he is now covered by a certified agreement of which he says he and others had no reasonable opportunity to approve, contrary to his fundamental rights as an employee covered by this agreement under section 170LJ. That is Mr Porter's grievance. The objects of the Act to which I intend to take the Commission to in this substantive appeal put heavy emphasis upon achieving fair and reasonable agreement making and a heavy emphasis upon according the power and discretion to organise affairs at the workplace between the employees and the employer.

PN76

COMMISSIONER LAWSON: Mr Chin before you go on, you are obviously appearing in this role, as you've said for Mr Porter, and you would be familiar with Mr Porter's participation in the approval process. Did he participate in the approval process? Did he vote?

PN77

MR CHIN: No he did not?

PN78

COMMISSIONER LAWSON: He elected not to vote?

PN79

MR CHIN: He was not invited to. He was excluded to. The evidence will show I anticipate that the ballot conducted on the vote of the agreement was confined to a mass meeting of members of the AWU and AMWU. Can I perhaps propose this course as an alternative. We put the appeal on in this way, that on the material before Commissioner Raffaelli of itself, the Commissioner erred in that he should not have found the certified agreement was approved by a valid majority, that is on the material before the Commissioner.

PN80

If this is not correct, in the alternative, we would submit that the Commissioner was lead into error by the failure of the parties before him to raise the existence of Mr Porter and his colleagues, planner colleagues. We would seek leave to adduce further evidence being a statement from Mr Andrew Porter, in addition to a petition signed by members of the ALAEA who were similarly excluded from the ballot on the approval of the agreement.

PN81

Now if the Full Bench is not minded to admit that evidence, can I propose this course, that as an alternative measure it would be open to this Bench to refer the matter either back to the member of first instance or to a single member of the Full Bench as presently constituted, to take further action and deal with this new evidence. Section 45(7)(c) or section 45(6)(b) would facilitate such a course, should the Full Bench be so minded.

PN82

My primary submission is that this evidence ought to be admitted in these proceedings and may be admitted without prejudice to the other parties. Mr Porter is here. He is available for cross-examination if that's required. As I've submitted we have had no indication that the parties had ever intended in these proceedings to file further evidence of their own notwithstanding the notice that we've given of our intention to do so.

PN83

I would resist the notion that the issue of standing and leave ought be dealt with as a preliminary issue. I've addressed them in brief terms as a preliminary matter. There is little doubt in my submission that Mr Porter has standing and there is precedent for that proposition in an appeal proceeding of this nature and in addition the question of leave is in my submission best dealt with upon a proper consideration by the Full Bench as to the relative merits of the substantive grounds of the appeal.

PN84

Those are my submissions in resisting the proposition put by Mr McDonald for those matters to be dealt with discretely and as a preliminary matter.

PN85

SENIOR DEPUTY PRESIDENT MARSH: Do you want to add anything Mr McDonald?

PN86

MR McDONALD: No thanks.

PN87

SENIOR DEPUTY PRESIDENT MARSH: We will adjourn just for a few minutes.

SHORT ADJOURNMENT [10.30am]

RESUMED [10.41am]

PN88

SENIOR DEPUTY PRESIDENT MARSH: Thank you for waiting. We have decided that we will hear the threshold matter first; whether or not Mr Porter is a person aggrieved and whether he is competent to bring an appeal. In light of those submissions we will then decide whether to proceed to the substantive grounds of the appeal. We are not inclined, at this stage, to hear leave to appeal separate from the merit of the appeal. So we will proceed on that basis. Thank you, Mr Chin?

PN89

MR CHIN: Your Honours, may I hand up two decisions relevant to the question of standing but which do not appear in my list of authorities. The first is the decision of the High Court of Australia, Toohey J in Re National Tertiary Education Industry Union; ex parte Quickenden. The second is, a decision of a Full Bench of this Commission in Orr v Association of Professional Engineers, Scientists, and Managers Australia. They are reported in [1996] HCA 33; 140 ALR 385 and 71 IR 241 respectively.

PN90

Members of the Commission, Mr Porter appeals in these proceedings as a person aggrieved within the meaning of section 45(3)(d) of the Act. In my submission it is well established that persons aggrieved within the contemplation of that provision ought not and has not been given a narrow construction for the purpose of appeal proceedings in the Commission.

PN91

The authority of Quickenden which I have handed to members of the bench is authority for two propositions. The first is that for the purpose of section 45(3)(d) a person aggrieved need not be a party to a certified agreement. That is, the person aggrieved need not be bound by the agreement in respect of appeals against decisions to certify agreements under the Act. Secondly, and more particularly, that decision is authority for the proposition that a person aggrieved can in fact be an individual employee whose employment is covered by an agreement that is made or certified between an organisation or organisations of employees and his/her employer. I note that it is an issue that is not contested in these proceedings that Mr Porter is in fact one of those persons who are covered by the certified agreement.

PN92

In this case of Quickenden, your Honours would be well aware that the prosecutor in that case commenced an application seeking probative relief in the High Court not having exhausted the appellant or appeal process within the Commission in seeking to challenge or to prevent the making of a certified agreement between his employer and the union organisation for which he was eligible to be a member.

PN93

In dismissing the application Toohey J said this at page 389, at about point 26. His Honour said, and I quote:

PN94

Section 45 of the Act provides that with the leave of the Full Bench of the Commission an appeal ...(reads)... by an organisation or person aggrieved by the decision.

PN95

Dr Quickenden is clearly a person aggrieved by the decision certifying the agreement and he did not content otherwise. His Honour refers to the decision of Tweed Valley Fruit Processors Pty Limited v Ross which is a decision upon which my learned friend, Mr McDonald, seeks to rely in submitting that Mr Porter is not a person aggrieved in these proceedings. In fact the Tweed Valley Fruit Processors decision does not support the contention put by Qantas Airways on this issue. That decision makes it clear that it is necessary for the Commission to consider the relevant statutory context in which 45(3)(d) appears.

PN96

The statutory context is as follows. Relevantly, in my submission, it is clear that the appeal rights provided for the Act contemplate appeal rights having been vested in individual employees covered by certified agreements. So much is clear from section 45(3)(ba). In relation to 45(3)(ba) - in relation to appeals from a decision of a member of the Commission to certify an agreement but only on the ground under subsection 170LU(2)(a). That is that it contains a prohibited provision. Section 45(3)(ba) specifically at (ba)(ii) provides a right of appeal to an employee whose employment is subject to the certified agreement, in addition to a person bound by the agreement and the employment advocate.

PN97

Indeed, in the Tweed Valley Fruit case at page 91 at about point 25, the Full Bench in that case state that the appeal rights under 45(3)(d) in fact provide for a wider category of people with legitimate interests in ensuring that the Commission acts within jurisdiction. That is a wider category than those directly affected by a particular decision. Such as an employee affected by a decision under section 45(1)(eeaa), that is the singular ground upon which it is provided that a discretionary decision can be appealed on discretionary grounds in relation to a decision certifying an agreement.

PN98

So it is made clear that the concept of "person agreed" within the contemplation of 45(3)(d) admits of a wider category of persons that the Act allows to ensure that the Commission acts within its jurisdiction. The statutory scheme further supports in my submission the ability of Mr Porter to appeal in these proceedings. Relevantly, section 170LA(1) provides that the Commission must perform its functions under part VIB to further the objects of the Act. These matters I touched on briefly in preliminary argument earlier this morning but relevantly the objects to which the Commission would have regard would include the object in section 3B, that of ensuring primary responsibility for determining matters affecting the relationship between employees and employers rests with employees and employers at the workplace level. Similarly, object 3C of enabling employers and employees to choose the most appropriate form of agreement and also object 3E which places primacy upon fair and effective agreement making.

PN99

Now, the Tweed Valley Food Processors case also establishes this: that the relevant grievance for the purpose of defining who a person aggrieved might be may be suffered as a result of the decision complained of beyond that which that person has as an ordinary member of the public either because - firstly because the decision affects his or her existing or future rights or secondly, because the decision has less direct effect on the interests of that person. It's a broad definition indeed in my respectful submission and the examples given of a less direct impact on the interests of a person were given as follows. That the decision may have affected the conduct of his or her business or may have affected his or her rights as against third parties. So that it's made clear that existing or future legal rights need not be the only interests adversely affected which would give rise to a relevant grievance.

PN100

Now if the appellant is correct in this case Mr Porter's grievance is clear. It is that the decision which he seeks to challenge has resulted in an agreement which regulates his terms and conditions of employment which (a) he had no reasonable opportunity to approve and (b) the terms of which were not explained to him in contravention of his rights under section 170LJ of the Act. 170LJ imposes obligations upon the employer which place consequent rights upon Mr Porter as an employee, that is, the obligation is that the employer gives all persons whose employment will be covered by the agreement including Mr Porter a reasonable opportunity to decide whether they want to make the agreement or give the approval. Now, on the appellant's case, that opportunity simply was not afforded to him.

PN101

It will be said against us that there is no grievance because the certified agreement does not cut away any terms and conditions of employment of Mr Porter. There is no authority in my submission for that position. There is no authority that the grievance must arise from prejudicial terms of the agreement itself keeping in mind in my respectful submission that the challenge is not to the agreement. The challenge is to the decision to certify the agreement.

PN102

That decision can only be made within jurisdiction provided that certain fundamental jurisdictional facts exist at the time, that is, that put squarely Mr Porter had a reasonable opportunity to approve the agreement. That is a jurisdictional fact which in my submission was not made out, did not exist and which denied the Commission jurisdiction to make the decision that it did. As I understand it, your Honours, your Honours do not require preliminary argument of leave at this stage.

PN103

SENIOR DEPUTY PRESIDENT MARSH: No.

PN104

MR CHIN: Can I lastly refer to the decision of Orr v Association of Professional Engineers, Scientists and Managers Australia. This is a decision involving an appeal by again in analogous terms an individual employee against the decision of a Commissioner in finding the existence of an industrial dispute. On the first page at 241 of this decision the members of the Commission say this at about the third sentence beginning "We consider". They say:

PN105

We consider that this case raises a real question of jurisdictional fact ...(reads)... and a decision of Anti Cancer Council of Victoria.

PN106

Further down the page it refers to the decision in Quickenden partly in relation to the question of leave. However clearly notwithstanding the appeal having been commenced and agitated by an individual employee in this case because the grounds of the appeal concerned fundamental issues of jurisdiction that are not demonstrably trivial in nature and in my respectful submission that similarly can be said of the proceedings before your Honours today leave was granted. Clearly Dr Orr had standing in those proceedings. Clearly Mr Quickenden had standing in his case as determined by Toohey J and in my respectful submission similarly so too Mr Porter has standing to commence and to prosecute the appeal before your Honours. If your Honours please those are my submissions on the question of standing.

PN107

SENIOR DEPUTY PRESIDENT MARSH: Thank you, Mr Chin. Yes, Mr McDonald?

PN108

MR McDONALD: The issue can be shortly stated. It is this. Can a person and an appellant be a person aggrieved for the purposes of section 45(3)(d) of the Act if he or she does not point to any prejudicial impact flowing from the decision per se as distinct from the process preceding the decision? We submit that the answer to that question is no. The authority that my friend points to of Quickenden is of course of no assistance at all to him. It's all very well for my friend to take you to the passage at 389 but of course one has to read what goes before and in particular at 386 at about point 8 of the page there is set out in the judgment an extract from the reasoning of Commissioner Smith and he says:

PN109

The situation which confronts me in this case is that an employee of the university, Dr Quickenden ...(reads)... is prejudiced by such performance agreement.

PN110

It was a case unlike the present one in which it was squarely being asserted by Mr Quickenden as a person aggrieved that he was prejudiced by the terms of the agreement per se. Mr Chin, despite the opportunity to do so, has still not pointed to anything in the terms of this certified agreement which affects any prejudicial alteration to the position of Mr Porter.

PN111

The only matters to which he refers are matters which could more properly be described as procedural matters. Orr v APESMA to which he refers, the passage in question was simply concerned with the public interest test of leave to appeal. There is no consideration in that case of standing of the appellant as a person aggrieved.

PN112

We do rely on Tweed Valley. Now I'm sorry for the confusion but can I hand up copies of the Industrial Relations report version of the case, which is the one to which I will be referring, and to the particular passage in this judgment, in the joint judgment of Wilcox CJ and Marshall J of the Industrial Relations Court. It begins at page 414. In particular at page 415 in the beginning of the first full paragraph the words, there is no doubt that.

PN113

There is no doubt that in determining whether a person is a person aggrieved for the purpose of exercising a statutory right of appeal, it is necessary to consider the relevant statutory context.

PN114

Gibb CJ said as much in Koowarta. His Honour there referred to cases where it has been held that a person is aggrieved by an act which operates on restraints what would otherwise be his legal rights. He also mentioned Attorney General Gambier v Nagee in which the Judicial Committee of the Privy Council says the words:

PN115

Person aggrieved should not be subject to a restricted interpretation but they include a person who has a genuine grievance. The course and order has been made which prejudicially effects his interests.

PN116

We do make the submission that the question of prejudice is fundamental to a party having properly the status of being a person aggrieved. In that respect we submit it's prejudice flowing from the actual decision to certify. That is, where we ask rhetorically, where is the prejudicial alteration in any sense to Mr Porter's terms and conditions of employment, the rights that he enjoys? None have been alluded to and we submit that in this case there is a complete absence of any relevant prejudicial alteration.

PN117

SENIOR DEPUTY PRESIDENT MARSH: Mr McDonald, hasn't it been put that Mr Porter was denied his legal rights with respect to being given an opportunity to have the agreement explained to him and to vote on the agreement?

PN118

MR McDONALD: He does make that complaint.

PN119

SENIOR DEPUTY PRESIDENT MARSH: That was an obligation under the Act that hasn't been carried out and therefore he was denied that legal right. I am looking at the wording of Gibbs J in the passage you have just taken us to and the relevant context - relevant statutory context. That is the relevant statutory context in which agreements are made, approved and certified.

PN120

MR McDONALD: But the relevance, with respect, I understand that that is the complaint which is made.

PN121

SENIOR DEPUTY PRESIDENT MARSH: Yes.

PN122

MR McDONALD: A complaint concerning the process, but with respect - - -

PN123

SENIOR DEPUTY PRESIDENT MARSH: It is more than process, it is jurisdiction.

PN124

MR McDONALD: It's - all right, it's process - I'll accept it's - - -

PN125

SENIOR DEPUTY PRESIDENT MARSH: Yes, to establish, which establishes jurisdiction, yes.

PN126

MR McDONALD: But we are left hanging, yes. We've complained about jurisdiction and is he now subject to some performance measure that he wasn't previously? Are his allowances being diminished? Is he in an unacceptable pay regime? His counsel stands up and says, well, the terms weren't explained. They've had plenty of time to look at the agreement. No doubt it's been pored over by a team of lawyers and yet we have deafening silence on the question of where is the prejudicial impact to this appellant? Which of course, with respect, goes back to the foundational point.

PN127

But what we have in this case in substance is Mr Porter running the union's case. He personally has suffered no prejudice whatsoever in terms of his conditions of employment as regulated by this certified agreement. He is here in the capacity of an individual running arguments which should and could have been run by the union.

PN128

I do make the submission that notwithstanding the complaints regarding the question of jurisdiction which are raised, I submit that that doesn't go far enough, that is to be a person aggrieved for him personally, not the union, not as a representative of 130 and 140 production planners, but for Mr Porter to be a person aggrieved by the certification of the decision, of certification of this agreement the onus is on him to point to some prejudicial alteration in his position prior to the certification of that agreement and he points to none.

PN129

SENIOR DEPUTY PRESIDENT MARSH: That might require him to go to the evidence. You were sort of inviting that.

PN130

MR McDONALD: No, because the terms of the agreement remain the same. Whether or - - -

PN131

SENIOR DEPUTY PRESIDENT MARSH: Do you say the parameters of prejudice are defined by the terms of the agreement?

PN132

MR McDONALD: Yes. I am not saying the questions of jurisdiction are irrelevant, but ultimately unless you can actually point to something in the agreement itself which has a prejudicial impact on the individual, he is not a person aggrieved. In terms of the statutory context, in respect of a challenge to a section 170LJ agreement, it is particularly appropriate to have regard to the terms of the agreement per se. Firstly, we are concerned here with a section 170LJ agreement, and that is an agreement which contemplates expressly that the parties are to be the employer and the registered organisation. He personally, that is Mr Porter, could not have been the party to this agreement.

PN133

Secondly, it is clear from the terms of section 170LJ that the registered organisation need only have one member whose industrial interests he is entitled to represent in order for the agreement to be certified and subject to compliance with section 170LJ there is no barrier to the agreement regulating conditions of employees who are not eligible to be members of the union which is a party to the agreement.

PN134

Thirdly, the capacity to challenge a section 170LJ agreement on the merits is significantly restricted by section 45(1)(e)(aa), that is it is restricted to the ground under section 170W(2)(a), that is the objectionable provision ground.

PN135

The submissions that he puts, and I do submit this is relevant to the question of whether or not he properly is the person agreed. With respect, the Commission should look to the substance of the appeal. All of the issues which are advanced are those which are those which could have been advanced on 4 June before Raffaelli C and I believe the Commission has that transcript before it. I would ask the Commission to actually look at the transcript which was handed up in the proceedings of 3 June.

PN136

SENIOR DEPUTY PRESIDENT MARSH: It was objected to and we haven't ruled on it.

PN137

MR McDONALD: Yes.

PN138

SENIOR DEPUTY PRESIDENT MARSH: We haven't got it before us.

PN139

SENIOR DEPUTY PRESIDENT MARSH: I would ask that that be placed before you. Does an associate have it?

PN140

MR CHIN: Yes I press the objection on the grounds previously put.

PN141

SENIOR DEPUTY PRESIDENT MARSH: Yes, we'll admit the material.

PN142

MR McDONALD: Thank you and as I indicated the background to this matter, if the Commission pleases, is that there was a section 99 dispute notification by Qantas arising out of alleged bans by employees including this relevant groups of employees, that is production planners, and in the course of the proceedings there was discussion about the relevant certified agreements applicable to the employees in question. You will see paragraph 184, I should point out that there's a mistake at paragraph 182. This attributes these submissions to Mr Norris, in fact the submissions were being made by Mr Styles who was appearing for Qantas, lest there by any confusion about that. You will see at paragraph 184 this submissions is made.

PN143

Now if I could come to the planners, can I say the planners are covered by a different EBA. Can I say generically it be called the Metals EBA. The respondent parties to that are the AWU and the AMWU and the Commissioner asked about the ALEA and he is informed that the ALEA is not a respondent. Of course under the freedom of association provision of the Workplace Relations Act they are entitled to have members in that area. The Commission would from common knowledge would know that there's been a settlement reached with the two respondents to that agreement. There's been a vote taken and the matters would be in the process of coming on for certification in the next few days. The position that Mr Norris is entering:

PN144

I am concerned that the employees covered by this agreement ...(reads)... Workplace Relations Act.

PN145

So there is reference to the certification proceedings coming on and then at paragraph 194 the Commissioner said this, he says:

PN146

Yes thank you, yes thank you, I've heard the parties in relation to this matter ...(reads)... new processes.

PN147

Then at 203, and this is referring to the what I'll describe as the AWUAMWU certified agreement, at 203 in the second sentence he says:

PN148

However, if there is a certified agreement about to be made then once ...(reads)... they have adhered to.

PN149

So I take the Commission to that transcript for the reason that it clearly discloses on 3 June in proceedings before Commissioner Raffaelli the union was put squarely on notice that this agreement which underpins theses proceedings which is subject to challenge is about to be certified and in fact the proceedings for certification were heard the next day. For whatever reason the ALEA were not there. They now seek to agitate through Mr Porter jurisdictional challenges which clearly could have, and should have, been agitated on 4 June.

PN150

The issues which Mr Porter seeks to agitate we submit in this appeal are not issues which bear directly upon him as an individual appellant, that is some adverse impact upon his conditions of employment. They are in fact the interests of the registered organisation, the ALEA. We submit this finally. The Commission should not confer upon Mr Porter the standing of a person aggrieved with standing to agitate this appeal when in truth the interests which are sought to be agitated are those of the ALEA, that that organisation for whatever reason has chosen not to be an appellant.

PN151

SENIOR DEPUTY PRESIDENT MARSH: Anything in reply Mr Chin?

PN152

MR CHIN: Yes briefly your Honours. I repudiate entirely the suggestion by Mr McDonald that this appeal is in some manner a vehicle for the ALAEA and not an appeal in substance and in truth by Mr Porter. There is simply no basis for my learned friend to put that proposition to this Bench. The transcript to which your Honours have been taken firstly is no basis to submit that the ALAEA was aware at the time that the certification was to occur the very next day, let alone a basis for any submission that Mr Porter ought to have been aware that the certification of the agreement was to take place the very next day. There is nothing in this transcript, except some vague indication by Mr Styles, that the agreement was:

PN153

In the process of coming off the certification in the next few days.

PN154

Whatever that means. There is certainly no suggestion in the materials that Mr Porter did, or ought to have known, that the agreement was to be certified the next day. Indeed what it does show, if anything, is that Commissioner Raffaelli was cognisant of the existence of a group of persons to be covered by that agreement who were not members of the AWU and AMWU which would be a relevant consideration, in my submission, on the substantive appeal.

PN155

Finally, the fundamental flaw in my learned friend's argument is his mis-characterisation of Mr Porter's rights under section 170LJ and the scheme of the Act generally. His dismissal of those rights as mere procedural matters. That's an unwarranted characterisation of what are fundamental rights and standards provided for, that is fundamental democratic rights provided for by the terms of the Act, that is without exception the obligation is upon the employer to give all the persons so employed, without exception, in respect to 170LJ agreements, that is to give all those persons a reasonable opportunity to decide whether they want to make the agreement or give the approval.

PN156

The certification of an LJ agreement is predicated as a matter of jurisdiction upon that fact. The denial of Mr Porter's right in that regard is a fundamental one. There is no authority for the proposition that - - -

PN157

COMMISSIONER LAWSON: How do you establish before us Mr Chin that Mr Porter was denied that opportunity?

PN158

MR CHIN: Firstly, by the material before Commissioner Raffaelli. That is even taken at its highest even if Commissioner Raffaelli could have taken at face value the representation in the statutory declarations that the agreement was approved by all employees, and even if - - -

PN159

COMMISSIONER LAWSON: He had no evidence to the contrary.

PN160

MR CHIN: Well what is apparent from the face of the record, with respect your Honour, is that the agreement that was certified at least with respect to one key issue, that is the reduction in the adult apprentice rate, was not the same agreement as that approved by the employees so deposed in the statutory declarations. That's one, in my respectful submission, crucial point.

PN161

COMMISSIONER LAWSON: That is another matter entirely to Mr Porter's alleged disenfranchisement of participation in the approval process.

PN162

MR CHIN: Let us assume Mr Porter did approve the agreement - - -

PN163

COMMISSIONER LAWSON: No, we don't need to know whether he approved the agreement or not. As I see your argument it is that somehow he was disenfranchised from the process of participating in a ballot about that agreement. That is not established before us as a fact because in fact there isn't on the appeal basis there is contradictory material to that.

PN164

SENIOR DEPUTY PRESIDENT MARSH: But that might determine whether or not he was aggrieved.

PN165

MR CHIN: That is correct. Whether or not he was aggrieved is a central issue. We would seek to make that out on the additional evidence which we seek for the first time and for the first opportunity that Mr Porter has to place before this Appeal Bench. Secondly, it was specifically represented to Commission Raffaelli that the valid majority was constituted from employees confined to members of the AWU and AMWU; specifically put to the Commissioner. The statutory declaration says, "approval by employees". It doesn't specify which employees. That matter was clarified before Commissioner Raffaelli to constitute employees who were members of the AWU and AMWU.

PN166

In relation to the transcript of 3 June 2004 which my friend seeks to rely on we know now that the day before Commissioner Raffaelli is apprised of the fact that there are substantial number of people who were not covered; not members of the AWU or AMWU. He was told on the day that the approval process was only made by members of the valid majority of the AWU and AMWU; and thus erred.

PN167

We would seek to further rely upon the evidence which, in my respectful submission, the Commission ought to receive one way or the other to finally determine these proceedings. But what is not in doubt, in my respectful submission, is Mr Porter's standing to agitate proceedings. If the Commission please.

PN168

SENIOR DEPUTY PRESIDENT MARSH: Thank you. We will adjourn for a few minutes.

SHORT ADJOURNMENT [11.22am]

RESUMED [11.32am]

PN169

SENIOR DEPUTY PRESIDENT MARSH: Thank you for waiting. On the submissions that have been put thus far we are not prepared to rule whether Mr Porter is a person aggrieved for the purposes of bringing a competent appeal. We intend to proceed to hear the merits of the appeal including any evidence that Mr Chin wishes to lead.

PN170

MR CHIN: If your Honour pleases.

PN171

MR McDONALD: I do apologise for jumping up and this will be the last time I will do it.

PN172

SENIOR DEPUTY PRESIDENT MARSH: It has been a morning like that; hasn't it?

PN173

MR McDONALD: I do apologise. If the Commission is minded to receive the evidence that has been foreshadowed by Mr Chin then I take the Commission's ruling to be that the Commission will accept that evidence.

PN174

SENIOR DEPUTY PRESIDENT MARSH: Yes.

PN175

MR McDONALD: Right. Well I won't take any objection then to the tender of the evidence.

PN176

SENIOR DEPUTY PRESIDENT MARSH: I thought that argument had been had. If I am wrong in that.

PN177

MR McDONALD: Yes, well I would be re-ventilating.

PN178

SENIOR DEPUTY PRESIDENT MARSH: Yes, that is what we felt. But we have not ruled in relation to your application for an adjournment which we would have sympathy with given the timing of the - - -

PN179

MR McDONALD: Yes, well I am just wondering whether or not it might be convenient. Rather than doing things in a stop/start approach we deal with the question of the adjournment at the outset.

PN180

SENIOR DEPUTY PRESIDENT MARSH: I think we would prefer not to have a stop/start proceeding. I think that is in everyone's interest.

PN181

MR McDONALD: I think it would be accepted at the bar table that in the absence of the further evidence we are not going to get very far because the further evidence is fundamental to the jurisdictional challenge which is mounted. So we are in the position where the evidence which our friend seeks to rely upon is highly controversial.

PN182

There are two representatives of Qantas that we would be proposing to lead evidence from in response to that evidence. One is present overseas, that is Mr Mills, the Industrial Relations Manager. And the other individual, a Mr Radcliffe, is presently very ill. We would not be in a position to lead evidence from those gentlemen, realistically, until about the second week of October. We would ask that the proceedings be adjourned until that time.

PN183

SENIOR DEPUTY PRESIDENT MARSH: Would you be in a position to cross-examine Mr Porter today?

PN184

MR McDONALD: No, I wouldn't.

PN185

SENIOR DEPUTY PRESIDENT MARSH: Would we - and Mr Chin, I might hear from you - would we complete the evidence in one day? Would we complete the matter in one day?

PN186

MR McDONALD: No, I would think that realistically I would have thought that we would need two to three days. That is on the assumption as I understand is the case that both the AWU and the AMWU would also be wishing to lead evidence in response to Mr Porter's affidavit, his witness statement. So we are looking at five witnesses to give evidence and be cross-examined.

PN187

SENIOR DEPUTY PRESIDENT MARSH: You can speak for Qantas, the unions can speak for themselves. Particularly Qantas, would Qantas be in a position to file and serve witness statements before the second week in October. I ask that because of the logistic problems that you have highlighted. Our normal practice would be to have directions in which there are witness statements filed and served.

PN188

MR McDONALD: Yes.

PN189

SENIOR DEPUTY PRESIDENT MARSH: We would certainly prefer if that could occur before we sat because it would avoid the situation of what happened yesterday in which you are in a prejudicial position, or your client is, because of not receiving this material till yesterday, or last night.

PN190

MR McDONALD: We would certainly co-operate with that, your Honour.

PN191

SENIOR DEPUTY PRESIDENT MARSH: I am just asking in the sense of being sure that we are ready to proceed. As we get later into the year, as you well know, it gets more and more difficult to get three members of the Commission together and counsel.

PN192

MR McDONALD: Yes. If we are going to have a timetable for the filing of material we would ask that the schedule be pushed back. That is that the matter be pushed back to say the week of the 18th, or the week of 25 October. We would file our material obviously a number of days in advance of that hearing.

PN193

SENIOR DEPUTY PRESIDENT MARSH: Yes, well I am certainly not available the week of October 18; but that is a detail. We will take on board what you have said.

PN194

MR McCAULEY: If I might, your Honour?

PN195

SENIOR DEPUTY PRESIDENT MARSH: Yes, Mr McCauley?

PN196

MR McCAULEY: We also, as my friend has said, we would also be seeking to call at least one witness at that time. We also didn't receive the material until just prior to 4 o'clock yesterday afternoon.

PN197

SENIOR DEPUTY PRESIDENT MARSH: Yes. Ms Lambert?

PN198

MS LAMBERT: Your Honour, on behalf of the Australian Workers Union, our position is the same as the Australian Manufacturing Workers Union; we did not receive the material until late yesterday afternoon. We, at this stage, are seeking to call one witness.

PN199

SENIOR DEPUTY PRESIDENT MARSH: Yes, I understand the position. Mr Chin, have you got any comments to make in response to what Mr McDonald has put on adjourning the matter? And if you are in accordance with that, with the timetable that he has proposed?

PN200

MR CHIN: I don't wish to be heard against Mr McDonald's application for an adjournment in order for his client to be able to meet the evidence. On my instructions it was about mid-day yesterday, but be that as it may. The only qualification I would submit would be that it may be prudent to leave some short time for Mr Porter to consider any evidence that has been put on in order to determine whether anything in reply might be said. I don't anticipate that there would be anything substantial, but it would depend upon the material filed by the respondents.

PN201

SENIOR DEPUTY PRESIDENT MARSH: Yes. Well, perhaps if the bench draws up some directions, and circulates them to the parties, which could be reviewed and altered by consent. Otherwise they would take into account the submissions that have been made. Perhaps if counsel could indicate now whether or not they are available the week of 25 October? The week of November 1?

PN202

MR McDONALD: Other than the first Tuesday in November, your Honour. You'll appreciate it has almost a religious significance in Melbourne.

PN203

MR McCAULEY: I'm in the same position, your Honour.

PN204

SENIOR DEPUTY PRESIDENT MARSH: I am available the 27th, 28th and 29th or 3, 4 and 5 November.

PN205

MR McDONALD: I don't have any problems with those dates, your Honour.

PN206

SENIOR DEPUTY PRESIDENT MARSH: Would it be prudent to list the matter for three days?

PN207

MR McDONALD: Yes, your Honour.

PN208

MR CHIN: We think that's excessive, but I'm in the Commission's hands in relation to that.

PN209

SENIOR DEPUTY PRESIDENT MARSH: I think it's probably more appropriate to list the matter for three days and vacate the days if they're not required. We will draw up directions which will involve either of those two weeks and we'll do it within the next - yes, Mr McCauley, you've got a problem, have you?

PN210

MR McCAULEY: Sorry, your Honour. The preference of the AMWU would be for 3, 4 and 5 November. There are some conflicts in the week before, that's all, if that can be taken into account.

PN211

SENIOR DEPUTY PRESIDENT MARSH: That can be taken into account and I think that's probably more convenient to the members of the bench. Is there anything further before we adjourn?

PN212

MR CHIN: Is it convenient to seek leave to file in court the evidence-in-chief as it were or the affidavit that was previously served?

PN213

SENIOR DEPUTY PRESIDENT MARSH: Yes, I think that would be convenient.

PN214

MR CHIN: I have copy of a witness statement of Mr Andrew Porter and a petition signed by staff of Qantas Airways Limited, three copies each, one for each member of the bench.

PN215

MR McDONALD: I don't have a problem with the affidavit but I have substantial problems with the petition and I wonder if perhaps - or we can deal with that argument now or we can deal with it when we can come back.

PN216

SENIOR DEPUTY PRESIDENT MARSH: I think it might be proper to deal with it when we come back.

PN217

MR CHIN: Depending on Mr McDonald's difficulty with it, it might be able to be resolved fairly easily.

PN218

COMMISSIONER LAWSON: Mr Chin, could I ask you is the so called petition referred to by Mr Porter or relied upon by Mr Porter in his statement?

PN219

MR CHIN: Not in his statement.

PN220

COMMISSIONER LAWSON: Well, what's the significance of it? You can't slip that in as an attachment to a witness statement if it has no relevance to the witness statement.

PN221

MR CHIN: Yes, I don't seek to adduce it as, as it were, an annexure to the witness statement but merely as evidence of itself and standing alone. If it assists the bench it can be modified into a statement form, that is, by the organiser of the petition itself. If that assists the bench that can be done.

PN222

SENIOR DEPUTY PRESIDENT MARSH: Well, it's Mr McDonald that's opposing the tender.

PN223

MR McDONALD: In its present form our position is it's entirely objectionable.

PN224

SENIOR DEPUTY PRESIDENT MARSH: Yes. Mr Chin, maybe you can give consideration to the objection over the adjournment period and we'll address it again when we resume in November.

PN225

MR CHIN: As your Honour please.

PN226

SENIOR DEPUTY PRESIDENT MARSH: Before we do adjourn however can I just mark the witness statement of Andrew Porter and that will be exhibit C1.

EXHIBIT #C1 WITNESS STATEMENT OF ANDREW PORTER

PN227

SENIOR DEPUTY PRESIDENT MARSH: Yes, Mr McCauley?

PN228

MR McCAULEY: Sorry, your Honour. In relation to that witness statement we have a number of issues that we wish to object to. I don't know whether you want to hear them now or also when we resume. There are a number of conclusions drawn that are objectionable throughout the statement.

PN229

SENIOR DEPUTY PRESIDENT MARSH: So you want certain paragraphs struck out or ruled on?

PN230

MR McCAULEY: We shall do. In relation to that we also need to seek some instructions on that. Again we didn't receive it until 10 to 4 yesterday afternoon.

PN231

SENIOR DEPUTY PRESIDENT MARSH: We've never seen this witness statement. I think it might be a better process, speaking for myself, if we could deal with objections to various paragraphs or parts of paragraphs in light of having read the statement.

PN232

MR McCAULEY: Certainly, your Honour.

PN233

SENIOR DEPUTY PRESIDENT MARSH: I think that would assist us.

PN234

MR McDONALD: Are you going to deal with the objections now because I also - - -

PN235

SENIOR DEPUTY PRESIDENT MARSH: No.

PN236

MR McDONALD: No, we'll do that when we come back.

PN237

SENIOR DEPUTY PRESIDENT MARSH: We haven't seen it. We haven't read it and I think it's easier to rule on objections if we're aware of what's in front of us. If that's appropriate we'll do that and you're on notice that we haven't ruled on that, Mr Chin, nor have we ruled on admitting the petition, but you're going to take into account Mr McDonald's - the basis of his objection and that might be addressed at least partially.

PN238

MR McDONALD: Yes, your Honour.

PN239

SENIOR DEPUTY PRESIDENT MARSH: Anything further? The Commission stands adjourned and we will issue directions for future sittings. Thank you.

ADJOURNED INDEFINITELY [11.45am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #C1 WITNESS STATEMENT OF ANDREW PORTER PN227