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Australian Industrial Relations Commission Transcripts |
AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825
Level 6, 114-120 Castlereagh St SYDNEY NSW 2000
PO Box A2405 SYDNEY SOUTH NSW 1235
Tel:(02) 9238-6500 Fax:(02) 9238-6533
TRANSCRIPT OF PROCEEDINGS
O/N 14019
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
VICE PRESIDENT LAWLER
C2003/2484
FINANCE SECTOR UNION OF AUSTRALIA
and
COMMSEC TRADING LIMITED AND OTHERS
Notification pursuant to section 99 of the Act
of an industrial dispute re log of claims
SYDNEY
10.05 AM, THURSDAY, 30 SEPTEMBER 2004
Continued from 29.9.04
PN4248
THE VICE PRESIDENT: I need to confess to the parties that I've yet to complete reading all of the submissions. Various other commitments have impeded getting that task finished.
PN4249
MR DOUGLAS: We're not going to read them to your Honour.
PN4250
THE VICE PRESIDENT: No, I wasn't expecting that that would occur.
PN4251
MS GOOLEY: Your Honour, can I say one thing first. We've had a discussion with Mr Douglas this morning in relation to the matters that are raised in the submission of CommSec for the first time in relation to the Electrolux decision and I put to Mr Douglas that given the Electrolux decision in relation to matters pertaining to the relationship between employers and employees raised nothing new at law, that those matters, in relation to dispute findings, should have been in their submissions at first instance and that we would be seeking directions that we file response to those parts of that submission, and Mr Douglas has indicated his agreement with that course. Not that he necessarily agrees that it raises no new issues of law, but he's agreed with the premise that we file written submissions in response to - - -
PN4252
MR DOUGLAS: Agreed not to object.
PN4253
MS GOOLEY: Agreed not to object.
PN4254
THE VICE PRESIDENT: Yes. how long would you like for that?
PN4255
MS GOOLEY: Until next Friday, your Honour.
PN4256
THE VICE PRESIDENT: That's fine.
PN4257
MS GOOLEY: Thank you, your Honour.
PN4258
MR DOUGLAS: I take it, your Honour, that we would have a couple of days to reply if necessary?
PN4259
THE VICE PRESIDENT: Yes.
PN4260
MS GOOLEY: Your Honour, we have prepared our comments this morning or the presumption of course that we've had an opportunity to read our material in this matter.
PN4261
THE VICE PRESIDENT: Yes. It's not as though I haven't read any of it; it's just I haven't completed reading it. It's been skimmed rather than studied.
PN4262
MS GOOLEY: I'm not surprised, your Honour, particularly given the late arrival at least of the material yesterday afternoon. We will have some comments to make about the admissibility of some of that material when Mr Douglas makes his submissions.
PN4263
THE VICE PRESIDENT: Yes. Can I suggest that we deal with the issues of the tender of submissions now. Is there any objection to the tender of the - by the way, I take the view that although submissions are customarily tendered in the Commission and marked as exhibits, that to the extent they're relied upon, they are relied upon in accordance with the principles summarised by Barwick in Melbourne Tramways, that is that they can be acted upon by the Commission where they're not contradicted by the other party and otherwise they don't amount to evidence independently to prove facts in issue. Any objection to the tender on that basis of the submissions of the primary submissions of the respondent?
PN4264
MS GOOLEY: Those were the ones that we - - -
PN4265
THE VICE PRESIDENT: That's the one dated 1 September 2004 where the chronology of relevant events is at annexure A and extracts from the evidence at annexure B.
PN4266
MS GOOLEY: Only to this extent, your Honour, that we say that the material in relation to the evidence and submissions that were put before the Commission in relation to the rule change that the FSU sought before Senior Deputy President Williams is not relevant to these proceedings.
PN4267
PN4268
THE VICE PRESIDENT: Is there any objection to the submissions of the applicant filed on 22 September 2004, Mr Douglas?
PN4269
MR DOUGLAS: No, your Honour.
PN4270
THE VICE PRESIDENT: That has had two annexures. Attachment A has already been separately tendered, that's the Bureau of Statistics Industry Categorisation document, and attachment B is the Financial Industry Complaints Service Limited Constitution. That would have the full evidentiary status in the proceedings if it's tendered.
PN4271
MR DOUGLAS: Your Honour, I don't object to that because there's a material on both sides that is before your Honour in the folders that have been filed that either come from the public record or the records of the Commission or is copies of legislation or - - -
PN4272
THE VICE PRESIDENT: Are the parties agreed that all of this additional material and extra submissions ought be admitted into evidence?
PN4273
MR DOUGLAS: That's my submission, your Honour, that it should be on both sides and at the end of the day it's for your Honour to decide what weight is to be put on that.
PN4274
THE VICE PRESIDENT: I think strictly speaking the parties are entitled to take a document by document approach if they wish but I'm simply inquiring, I suppose, Ms Gooley, whether or not you're content to proceed on the basis that Mr Douglas suggests, namely that all of these annexures go in.
PN4275
MS GOOLEY: No, your Honour, there are a number of documents we object to in the documents that have not yet been considered which are the attachment to the submissions in reply.
PN4276
THE VICE PRESIDENT: Mr Douglas, we will need to deal with them on a document by document basis. Do you object to attachment B to the submissions of the applicant? That's the Constitution of Financial Industry Complaints Service Limited.
PN4277
MR DOUGLAS: Well, I do and I don't, your Honour. I will if the union is going to take an approach of making objections to various aspects of the material that we've got in our folders.
PN4278
THE VICE PRESIDENT: That objection has been foreshadowed.
PN4279
MR DOUGLAS: Yes. Well, this exercise is going to take a very long time. There are literally dozens and dozens of pages of documents that have a capacity to be objected to on that basis. Certainly I haven't taken a view, your Honour, - - -
PN4280
THE VICE PRESIDENT: Relevance is the primary ground of objection and that will be the primary determinant. There is an issue as to whether or not there's a prejudice arising from the late tender of documents which would, if they had been tendered at an earlier time, have led to further cross-examination of witnesses. That gives rise to a discretionary consideration as to whether or not in the exercise of discretion the tender ought be rejected. That can't apply in relation to attachment B because it was in the hands of the respondent prior to the examination of the relevant witnesses this week. I suppose it may apply in relation to Mr Rickard.
PN4281
MR DOUGLAS: I have no objection in relation to that document, your Honour, on terms of relevance. It might be marginal but I don't make that objection, but I could make an objection it hasn't been proved, but if we get into that field, your Honour, we're going to be looking at every single document that's being put forward by both sides.
PN4282
THE VICE PRESIDENT: I must say I would take the approach in the Commission, having regard to the provisions of section 110, that whilst that sort of technical objection may be something that a court is obliged to entertain and to uphold if it the technical requirements of proof have not been discharged, but in circumstances where there can be no serious challenge to the authenticity of the document attachment B I would rely upon the provisions of section 110 to reject that ground of objection. The same approach will be applied in relation to your documents.
PN4283
MR DOUGLAS: Yes. Your Honour, could we find out which documents are being objected to so we can deal with in a sense en masse, because at this stage I don't have any objections to take on questions of relevance with respect to documents that have been put forward by the FSU.
PN4284
THE VICE PRESIDENT: Which documents, Ms Gooley, do you object to in relation to the respondents' submissions in reply.
PN4285
MS GOOLEY: This is in the bundle of documents that was attached to the submissions in reply so that's volume 1. If we go to page 65.
PN4286
THE VICE PRESIDENT: I only have - - -
PN4287
MR DOUGLAS: That's at 65, that letter.
PN4288
MS GOOLEY: The second letter.
PN4289
MR DOUGLAS: You can take that out. That's already in, your Honour.
PN4290
MS GOOLEY: No, the other letter is in, your Honour. This is a second letter.
PN4291
THE VICE PRESIDENT: I'm having trouble tracking down volume 1 at the moment. I have a folder entitled Materials In Support Of Respondents' Submissions filed 29 September which would appear to be - it doesn't say Volume 1. I have a second folder Materials In Support Of The Respondents' Submissions Volume 2. The first document in the first of those volumes is an extract from the Corporations Act 2001 Volume 4 includes chapter 7.
PN4292
MS GOOLEY: That's it, your Honour, and they've got page numbers down the bottom, so if your Honour goes to page 65.
PN4293
THE VICE PRESIDENT: Yes?
PN4294
MS GOOLEY: You will see, your Honour, that 66 is already an exhibit in these proceedings.
PN4295
THE VICE PRESIDENT: Yes. So you object to 65?
PN4296
MS GOOLEY: I object to 65 on the question of relevance.
PN4297
MR DOUGLAS: I don't press 65, your Honour.
PN4298
THE VICE PRESIDENT: Fine. I will remove 65 from the volume.
PN4299
MS GOOLEY: Thank you, your Honour.
PN4300
THE VICE PRESIDENT: Any other documents in that volume?
PN4301
MS GOOLEY: Not in that volume.
PN4302
THE VICE PRESIDENT: Volume 2?
PN4303
MS GOOLEY: Well no, the log is not the log. In volume 2, your Honour - - -
PN4304
THE VICE PRESIDENT: That's the volume that starts with Woolworths Ezy Banking documents.
PN4305
MS GOOLEY: Yes, it does start with Woolworths Ezy Banking. We have two objections to this material. One goes to the question of relevance but the other goes to - and I first say that we have not had an opportunity to review in detail all the material that is here. It arrived with us at, I think it was about 5.00 o'clock last night. We certainly have had an opportunity to review the Woolworths Ezy Banking question because Mr Douglas, of course, referred to that in his submissions suggesting, of course, to Professor Walker that Woolworths was a financial service provider and it had a financial services guide.
PN4306
Our objection to this material is that it is not relevant to the proceedings before you. We have a further objection that it is incomplete and that Mr Douglas has not included in this material what he referred to in his cross-examination which was in fact the financial services guide produced by Ezy Bank and we have no objection to the Ezy Bank material provided that in addition to that material the financial services guide produced by - that is available through the same links is tendered and we have a copy of that to tender.
PN4307
THE VICE PRESIDENT: In relation to the balance, Australia Post cover more insurance services, Flight Centre and so on, your position is?
PN4308
MS GOOLEY: We don't see the relevance of this material to these proceedings. You are not in these proceedings, your Honour, being asked to determine whether any of these other organisations were in the scope of the rules of the Finance Sector Union. It is not a matter in issue before you and we have not had an opportunity to make any inquiries about this material. So we say it's not relevant. We say it's been served late and we say that we have not had an opportunity to review it with the view to what cross-examination of witnesses, if any, might have arisen from it and we are actually unclear because it's not made clear in the submissions of the respondent what pages 203 to 405 or 406 actually purport to be. So we seem to have a number of documents that - - -
PN4309
THE VICE PRESIDENT: I think you can proceed on the basis that they are an extract of Yellow Page listings, entities from the Yellow Pages under those various categories that the Yellow Pages adopt.
PN4310
MR DOUGLAS: That's correct.
PN4311
MS GOOLEY: I don't see the relevance of an extract from the Yellow Pages to the matters before you. The matter before you - - -
PN4312
THE VICE PRESIDENT: So Woolworths Ezy Banking no objection provided the services guide goes in. Folios 136 through to 201 objection on the grounds of relevance - - -
PN4313
MS GOOLEY: And lateness and our ability to review this material and apply it in the cross-examination of witnesses. I mean none of this material was available to the respondent at first instance, your Honour.
PN4314
THE VICE PRESIDENT: And then the same objections for 203 following?
PN4315
MS GOOLEY: Yes, I see no relevance in that material at all and if it's the Yellow Pages it's been available.
PN4316
THE VICE PRESIDENT: I just wonder whether there's a false issue here and if I could express a provisional view and get Mr Douglas' response to it it may facilitate the resolution of these objections. Mr Douglas, rule 5 of the FSUs rules is focused on not businesses within industries but employees within industries. Do you accept that relevantly 5.2 and 5.8?
PN4317
MR DOUGLAS: Employees of businesses in industries, your Honour. That's the way the rule has been interpreted.
PN4318
THE VICE PRESIDENT: 5.2:
PN4319
The union shall consist also of all employees in or in connection with the industry of banking.
PN4320
MR DOUGLAS: Yes, and the rule has been interpreted on the basis as we've said in our submissions that you determine that by determining what industry the employees employer is in.
PN4321
THE VICE PRESIDENT: Can you take me to that authority?
PN4322
MR DOUGLAS: Firstly it follows from the discussion in our submissions in chief from where we talk about Hibble's case and onwards, I think.
PN4323
THE VICE PRESIDENT: If I could just take an example, radio operators on an oil rig. The radio operators were covered by the Radio Engineers Australasia Institute. That union had a set of rules that was an industry - employment in an industry set of rules.
PN4324
MR DOUGLAS: Yes, because the rules say that the union is entitled to - - -
PN4325
THE VICE PRESIDENT: But they're a small number of workers on an oil rig. The majority of workers are in the oil industry. The business is in the oil industry. I thought it was commonplace for - - -
PN4326
MR DOUGLAS: Those radio operators, your Honour, are entitled to be members of that union because they are radio operators. That's what the rule says. The rule says that they're entitled to take in as members persons who are radio operators. It doesn't matter whether they're in the oil industry, the aircraft industry or what industry. Those rules are very different to the rule which you're referring to here, the wording of rule 5, and you can't put a blanket across rule 5. You have to look at each subrule.
PN4327
THE VICE PRESIDENT: I was relying upon what Commissioner Roberts told me about this and he suggested it was an industry rule from his recollection rather than a craft rule.
PN4328
MR DOUGLAS: No, it's not, your Honour, not in my recollection. I haven't had anything to do with the offshore oil industry now for some 15 years but my knowledge is that there is no single union that has coverage of all employees in that industry and that the coverage that does exist depends on the registration of craft rules rather than rules based on the employer's industry and the comment I was going to make is that you can't look at rule 5, that is say, 5.1 through to 5.11 inclusive of the FSUs rules and say that you can address the question as to whether the employee is eligible or not by what the employee does. Some of those rules are expressed in that form but not 5.2 and 5.8.
PN4329
The submissions, your Honour, that we put on this matter are from paragraph 20 onwards in our submissions in chief, that is, in C21 where we begin with Hibble's case where we say the High Court was concerned with determining the industrial scope of the Australian Coal and Shale Employees Federation by reason of a log of claims it had served on Broken Hill and others. The relevant eligibility rule provided:
PN4330
The Federation shall consist of an unlimited number of employees in or in connection with the coal and shale industry.
PN4331
The court held that an eligibility rule expressed in those terms should be construed as relating to the industry of the employer and then we cite a number of other examples that follow on from that and show for example - - -
PN4332
THE VICE PRESIDENT: Fine. This doesn't cut short the course of the objections, Mr Douglas.
PN4333
MR DOUGLAS: Could I just add, your Honour, the FSU hasn't put a submission in that way. It hasn't put a submission to you that a particular class of employees who are within the employment group of CommSec are covered because of the activities they perform individually.
PN4334
THE VICE PRESIDENT: My duties to apply the law are independent of what the parties submit.
PN4335
MR DOUGLAS: Absolutely, I understand that, your Honour, but the law - you're facing a severe hurdle to take a different approach.
PN4336
THE VICE PRESIDENT: I accept that you'll no doubt seek to dispel my ignorance in relation to these matters. Mr Douglas, what then is your response to the objection in respect of - - -
PN4337
MR DOUGLAS: Your Honour, this material has gone in because of the evidence given by Professor Walker. Therefore it's not late. You will remember Professor Walker's evidence when I was putting questions to him about Woolworths and Australia Post and any other entity that has to file a financial services guide and this material goes in as a response to that and it has relevance because of the answers that he gave, your Honour. The late issue you are to put on it is for you.
PN4338
THE VICE PRESIDENT: Yes.
PN4339
MS GOOLEY: If it has gone in your Honour for the purposes of establishing that the entity's financial services guide in terms of Ezy Bank, we have attached the financial services guide that is available from Ezy Bank and have tendered that in relation to that and on the basis that that is included - - -
PN4340
THE VICE PRESIDENT: Well is the only purpose of the tender Mr Douglas to establish that here are a series of businesses that are clearly not in the relevant industries referred to in rule 5 and which issue financial services guides.
PN4341
MR DOUGLAS: No, and which because of that if you look at the legislation, we've tendered that, are to be regarded under that legislation as performing or providing financial services in according with a number of categories. That's the relevance of it your Honour and to show that the coverage of that legislation is extremely widespread.
PN4342
THE VICE PRESIDENT: Yes, on that basis Ms Gooley the - - -
PN4343
MS GOOLEY: That might be of assistance your Honour if, for example, with the Australia Post documents there was a financial services guide, there's not, with the Flight Centre, there was no suggestion that the Flight Centre has got a financial services guide, we have a financial services guide for Covermore and you will notice that says, an authorised representative will take you to the question of who - - -
PN4344
THE VICE PRESIDENT: Let me see if I can qualify it further. Mr Douglas, as I said before but with the modification that these businesses which are clearly not in the relevant industries have financial services guides where they appear in the material.
PN4345
MR DOUGLAS: Well no your Honour, well yes and no. This material has to be viewed in light of the legislation, relevant parts of which we've tendered in the other folder.
PN4346
THE VICE PRESIDENT: I've got some questions about the legislation in due course.
PN4347
MR DOUGLAS: Well you view this material in the light of the legislation your Honour.
PN4348
THE VICE PRESIDENT: Ms Gooley, I propose to admit it, if you are prejudiced and wish to supplement the tender by the tender of additional documents please feel free, query the relevance at the end of the day of that.
PN4349
MR DOUGLAS: And there is a financial services guide in the bundle for instance your Honour.
PN4350
THE VICE PRESIDENT: I don't understand Ms Gooley to be making a case that Woolworths is in one of the relevant industries as a whole, I do understand her to be making a case that CommSec is in one of the relevant industries as a whole - - -
PN4351
MR DOUGLAS: Yes and no other case.
PN4352
THE VICE PRESIDENT: - - - and in that sense there's a distinction to be drawn between Woolworths and Australia Post and these other businesses and CommSec.
PN4353
THE VICE PRESIDENT: Yes and that material is relevant to that issue your Honour.
PN4354
THE VICE PRESIDENT: Yes.
PN4355
MR DOUGLAS: There is a financial services guide in the folder say in relation to Flight Centre.
PN4356
THE VICE PRESIDENT: Yes, there was nothing in volume 1 Ms Gooley that you are objecting to?
PN4357
MS GOOLEY: Only what was being taken out your Honour.
PN4358
THE VICE PRESIDENT: Yes, page 65 has come out.
PN4359
MS GOOLEY: And the other matter in relation to the - no, that was the earlier documents.
PN4360
PN4361
PN4362
MR DOUGLAS: Your Honour, what about the folders that went in with the original submissions your Honour?
PN4363
THE VICE PRESIDENT: And I understand that those objections are subject to relevance arguments that may be advanced in due course. I'm sorry Mr Douglas.
PN4364
MR DOUGLAS: I thought my friend said that she objected only to the material relevant to the Williams proceedings with respect to the rule change in 4.2 and 5.11.
PN4365
THE VICE PRESIDENT: Yes, that's in the submissions proper in reply, correct?
PN4366
MR DOUGLAS: It's in both submissions your Honour it's dealt with, the issue is dealt with in both submissions I think, certainly in the first - - -
PN4367
THE VICE PRESIDENT: Well I proceed on the basis as I indicated, that what's in the submissions documents excluding the attachments are to be treated as submission, to the extent that they are submissions of fact and they're challenged they cannot be relied upon, so I will mark the submissions in reply as exhibit C24.
PN4368
THE VICE PRESIDENT: And I note the FSUs objection to factual submissions relating to the determinations by SDP Williams in relation to the rule changes. There is a qualification Ms Gooley, to the extent that matters are recorded as part of the reasons for decision of SDP Williams then it seems to me that they are matters that might properly be relied upon. They are not in the same category as a pure submission and you don't dissent from that.
PN4369
MS GOOLEY: No, I don't.
PN4370
THE VICE PRESIDENT: Now, the applicant's submissions, Mr Douglas?
PN4371
MS GOOLEY: Your Honour, the Ezy Bank Financial Services Guide hasn't been marked and we've tendered.
PN4372
PN4373
PN4374
PN4375
MS GOOLEY: And there is attachment C your Honour.
PN4376
MR DOUGLAS: What is attachment C?
PN4377
MS GOOLEY: The Commonwealth Bank internet profile.
PN4378
MR DOUGLAS: The annual report.
PN4379
MS GOOLEY: No, the one you refer to in your submissions, the internet profile.
PN4380
MR DOUGLAS: No objection your Honour.
PN4381
PN4382
THE VICE PRESIDENT: Ms Gooley, is there anything further that you wish to say? Mr Douglas, before you start can I ask you this, you draw attention early in your primary submissions to the particular form of words in or in connection with at one part of the rules and in connection with at another part of the rules.
PN4383
MR DOUGLAS: Yes.
PN4384
THE VICE PRESIDENT: I understood your submissions though to be that "in connection with" is broader and includes the notion of being in the specified industry.
PN4385
MR DOUGLAS: No, it's rather we put the submission the other way, your Honour. This is in relation to 5.8 where you have "in or in connection with the finance industries", plural, and then "in connection with" the two other categories, namely the business and/or industries of intermediaries in a business and/or - - -
PN4386
THE VICE PRESIDENT: So assuming a business is in the financial services industry, you would say it falls outside the scope of the rule because being "in", it's not "in connection with"?
PN4387
MR DOUGLAS: No, your Honour. I think it's put the other way, that if you're "in", you're also "in connection with".
PN4388
THE VICE PRESIDENT: Yes, that's fine.
PN4389
MR DOUGLAS: But you can be not "in" and still "in connection with" and you can be not "in" and not "in connection with".
PN4390
THE VICE PRESIDENT: But if you're "in", you're "in connection with"?
PN4391
MR DOUGLAS: Yes, I accept that.
PN4392
THE VICE PRESIDENT: Fine.
PN4393
MR DOUGLAS: Could I add, your Honour, the reason why I'm so confident in saying that is that I think in one of the cases concerning the bank, I'm not sure whether it was the Advance Bank case or the Illaton cases, where the Commission said that very thing that if you're "in", you're "in connection with" as well.
PN4394
THE VICE PRESIDENT: Yes, just bear with me.
PN4395
MR DOUGLAS: Could I also add, your Honour, that those cases were decided in a climate where rule 5.8 did not exist. So the debate was around the meaning of the words in 5.2 alone as it stood, which is basically as it stands now, save that at that time there was no reference to merchant banks in 5.2. So 5.2 at that time referred to employees who were being "in" or "in connection with" the industry of banking, full stop. That was 5.2 and that's what those cases were concerned with. 5.8 didn't exist and merchant banks weren't named in 5.2 at the time.
PN4396
THE VICE PRESIDENT: Have you addressed in your written submissions, in the skim that I did, I didn't see it, you've addressed the parts of Chapter 7 of the Corporations Law that address the issuing of financial services guides, but what about the holding of Australian Financial Services licences?
PN4397
MR DOUGLAS: No, we haven't addressed that, your Honour.
PN4398
THE VICE PRESIDENT: You see section 911A of the Corporations Law requires a person who carries on a financial services business in this jurisdiction to hold an Australian Financial Services licence covering the provisions of the financial services and when you track it through, you end up with a proposition that a security is a financial product, a financial services business is something that's dealing with financial products and in 761A security means (a) a share in a body.
PN4399
So that under this regulatory scheme, shares are financial products and persons who deal in financial products have to hold an Australian Financial Services licence. So that the regulatory scheme appears to require stockbrokers or seems to treat stockbrokers as part of the financial services industry and requires them to be licensed on the basis that they are dealing in financial products, securities.
PN4400
MR DOUGLAS: Yes, we haven't addressed that, your Honour, but it's - - -
PN4401
THE VICE PRESIDENT: Well, could I put it this way, if you want to put in a brief supplementary submission on that topic, feel free to do so.
PN4402
MR DOUGLAS: Well, I think we should, your Honour, because it goes to the inter-relationship between the legislation that applies to banks specifically.
PN4403
THE VICE PRESIDENT: I do have a vague recollection of seeing somewhere in the evidence a reference to your client holding an Australian Financial Services licence.
PN4404
MR DOUGLAS: Yes, your Honour, but, for instance, the holding of that licence doesn't make you subject to the control of APRA.
PN4405
THE VICE PRESIDENT: No, but it does make you subject to the control of ASIC which has the primary responsibility for regulating the Australian Financial Services Industry, as that industry is conceived in the statutory scheme. I appreciate there's an issue as to whether or not that statutory scheme is case more broadly than what the industrial usage of the expression is.
PN4406
MR DOUGLAS: I think it's best if we provide you with a short written submission on it, your Honour.
PN4407
THE VICE PRESIDENT: Yes, but I draw your attention to a definition of security in 764A, sorry, the definition of financial product in 764A, the definition of security in 761A, the definition of body in section 9.
PN4408
MR DOUGLAS: Yes, could we have until Friday of next week to do that?
PN4409
THE VICE PRESIDENT: Certainly.
PN4410
MR DOUGLAS: And the union should have the opportunity to reply, of course.
PN4411
THE VICE PRESIDENT: Yes, of course. I'm in a bit of a pickle, I have to confess, with reserve decisions and having about half the panel away I've been sitting most days and have been acquiring reserve decisions faster than I've been certainly getting them out. The consequence is that there's unlikely to be a decision handed down on this matter, I think, short of the new year.
PN4412
MR DOUGLAS: I'm not surprised, your Honour.
PN4413
THE VICE PRESIDENT: But having said that, my intention is to try and dictate something immediately and if I can get it out sooner, so much the better, because I appreciate the longer you leave it, the more work is involved in completing the task. Yes, Mr Douglas, sorry, do you agree that you have a different order?
PN4414
MR DOUGLAS: Well, it's of no concern to me, your Honour, but Ms Gooley - - -
PN4415
MS GOOLEY: I've had some difficulty imagining that Mr Douglas has anything more to say after the extensive submissions in reply that were already provided. Your Honour, despite the volumes of material that have been produced and the length of time this matter has gone on, the matter before you is really quite simple. You have to determine that the employees of Commonwealth Securities Limited are eligibly members of the Finance Sector Union and you have to decide if there is an industrial dispute between the Finance Sector Union and the Commonwealth Securities Limited within the meaning of the Act.
PN4416
They are, in fact, the only two matters before you. In doing that, you're not required to determine to finality the scope of the Finance Sector Union rules. You don't have to decide whether the Finance Sector Union has coverage of places like Ezybank, Australia Post, Harvey Norman or, despite the extensive material that's been put before you in these primary submissions, whether EDS was, in fact, within the scope of the Finance Sector Union rules. Noting, of course, that EDS, in that case, was a matter that dealt with only one section of the union's rules. You don't have to decide whether any of those bodies are within the scope of the Finance Sector Union Rules.
PN4417
All you have to decide is whether the employees of the Commonwealth Securities Limited is within the scope of those rules.
PN4418
THE VICE PRESIDENT: Is that right? Whilst that's obviously a truism in terms of the ultimate question, the respondent seeks to resist a dispute finding on the basis that, on their proper construction, the rules do not extend to cover persons employed within CommSec and it does that, inter alia, by pointing to the consequences of an argument that in vaccuo or in isolation would see CommSec within the rules by saying if you apply that same reasoning to other entities, you come up with the conclusion that those other entities are also within the rules. That can't be right, therefore the original reasoning can't be right. That's the logical process that I understand the respondent to be relying upon.
PN4419
MS GOOLEY: Yes, and that approach is fundamentally wrong. That's the point. What you have to do is, you have to look at the rules and look at the facts of CommSec and apply the facts of CommSec to the rules to determine whether CommSec is within the scope of the rules. It is no argument that CommSec is not within the rules because if CommSec is within the rules it might be that somebody else is within the rules. The determination as to whether those other bodies are within the rules will depend on the facts and circumstances of those other bodies.
PN4420
It may be, we say, it may be, for example, that depending on the scope of a particular body in the finance services industry, may be within the scope of the Finance Sector Union's rules. But you don't have to decide whether any of those other bodies are within it. All you have to concentrate on is whether CommSec is and we say CommSec is.
PN4421
THE VICE PRESIDENT: Yes, Ms Gooley, do you accept the correctness of the proposition that Mr Douglas was asserting a short time ago, starting at paragraph 21 of his primary submissions, namely that as a result of the way in which cases have been decided in the past, the focus is not just on whether or not particular employees are employed within an industry, but rather whether they are employed in businesses which are within that industry.
PN4422
MS GOOLEY: Well, in connection with the industry if Mr Douglas' submissions were right Illaton would never have been found to be within the eligibility rules of the Finance Sector Union. You remember Illaton which was a service company providing labour to a company that provided that to Metway Bank; right? That was found by the Commission being within - - -
PN4423
THE VICE PRESIDENT: Sorry, I understand about the "in connection with" and it was remiss of me not to include that in the summary that I gave you but this notion that one has to inject the characterisation of the business into the process is not something you disagree with?
PN4424
MS GOOLEY: It's certainly the case that there is an industry rule, an eligibility rule and that one looks to both rules to consider the scope of the union's eligibility though I may have a look at that decision you referred to and make some supplementary submissions on that taking that into account.
PN4425
THE VICE PRESIDENT: Let's just assume in Woolworths, for example, there was a group of 50 employees who sat in their own separate office doing nothing but processing the finance applications or the Ezy Banking applications made by customers of Woolworths, you would accept, would you, that because Woolworths as a business is not within the industry rule that those 50 people could not be signed up as members of the FSU?
PN4426
MS GOOLEY: I would not necessarily accept that Woolworths is not in part in the industry. A business can be in more than one industry, right?
PN4427
THE VICE PRESIDENT: Yes.
PN4428
MS GOOLEY: So I would not necessarily accept that part of Woolworths' business is not in our industry.
PN4429
THE VICE PRESIDENT: Yes.
PN4430
MS GOOLEY: The extent to which that leads to the conclusion that Woolworths as a whole is in our industry is a matter of - I think the High Court talks about you've got to look at the substantive business or whatever. For example, when the Full Bench in the case we referred to in our submissions was looking at whether a lighting company was in or in connection with any kind of amusement the old theatrical rules used to read that way and in Two Phase Lighting the Commission had before it companies which spent a very small part of their business was providing lighting to live theatre but the Full Bench of the Commission found that even though it was a small part of that business they were still in or in connection with any kind of amusement.
PN4431
That is why I say you don't have to make the decision about Woolworths. It will depend on the facts of Woolworths to the extent to which it is in or in connection with or in the finance service industry and it is possible on current authority in that case, as we referred to in our submissions, only a very small part of the business was in or in connection with live theatre but the Full Bench held that Commissioner Mancini had been correct to find a dispute in that case.
PN4432
THE VICE PRESIDENT: Yes, thank you.
PN4433
MS GOOLEY: So we put in our primary submissions in relation to the rules and despite the statements in the submissions of CommSec we don't submit that CommSec has established a factual basis for their statement that words "in the finance industry" bear an industrial usage which is different to their ordinary meaning.
PN4434
Professor Hewson, whose evidence was very unresponsive in these proceedings, who we submit seemed to want to answer the question from the basis of whether - the same way Mr Douglas does; that's not what it can mean because that's what it means and it means you have coverage which is not what the role of an expert witness in these circumstances is supposed to be.
PN4435
What he's supposed to do is tell us in his professional view what the industry is and he seemed to have a definition of the finance industry that was based either on your margins, so you moved in or out of the finance industry depending on whether you h ad high or low margins or, as the submissions in reply of CommSec say, you move in and out of the finance industry depending on t he risks involved in the industry that you're in.
PN4436
There was no factual foundation for that produced to this Commission at all and there is no evidence to support that conclusion that that's a generally accepted meaning of participants in the industry that that's what the finance industry is.
PN4437
THE VICE PRESIDENT: So you draw a distinction between the industrial usage and an academic definition?
PN4438
MS GOOLEY: I think that one of the things that we're encountering in this case is that there is no absolute fixed definition of what the finance industry is because the finance industry itself is an evolving and developing body. I think the High Court talked about that notion in - what was it, if you just bear with me. There's a reference in one of the cases to the fact that the meaning that can be given to a word in union rules can relate to industries that didn't even exist at the time that the union rules were put in place. They're not fixed in concrete.
PN4439
The understanding of the union rules develop as the industry itself develops and I think that you commented, your Honour, in the proceedings with Mr Rickard in the box that the nature of what is developing here is evolving and it is quite different to what was many people's ordinary understanding of these terms but what happened in the 1980s was that the union's rules were changed to become an industry-wide rule to, because as I think it's referred to in some of the material of Mr Douglas, the ACTU had determined that the Finance Sector Union would be the principal union in the finance industry. The finance industry is not a fixed - it's an evolving concept and the understanding given to that is informed by academic views, it's informed by the very usage that the participants in the industry use.
PN4440
For example, we have put into our material what the Commonwealth Bank of Australia, one of Australia's leading banks, describes as its banking business and it doesn't describe its banking business any more as simply a place where you go and borrow and lend money. It describes its banking business as a much broader concept because the concept of banking has changed since, as Professor Walker described, that banks were required to put their profit and loss statements up on the wall.
PN4441
As the industry evolves and develops the union's rules evolve and develop in the same environment. I think if you asked both academic, lay person, lawyer, whoever, are financial institutions in the finance industry, the answer would be yes.
PN4442
THE VICE PRESIDENT: That begs the question as to what's a financial institution.
PN4443
MS GOOLEY: Well, it appears that according to the material produced by Professor Hewson, financial intermediaries are financial institutions, brokers are financial institutions. Even if we accept that the author of that book used the word "financial institutions" and "financial intermediaries" interchangeably, one of the examples they gave of either a financial institution or a financial intermediary was a broker. That has not been contradicted. Whether it's a financial institution or a financial intermediary it includes a broker. As the quote we referred to, which I'll come to later, it's not a new concept that brokers, stockbrokers, are in the finance industry.
PN4444
We say that CommSec misrepresents Professor Walker's evidence. Mr Walker did not say that Woolworths or boat brokers were in the finance industry. He did say that if they provided financial services, had a financial services guide, they were in the financial services industry.
PN4445
THE VICE PRESIDENT: A bit more specifically he said that whilst their core activity, was his expression, was not in the finance industry, they did have some part of their business that was in the finance industry, was his opinion.
PN4446
MS GOOLEY: Yes, and Mr Douglas stood here and his Ezy Bank documents and he had his financial services guide for Ezy Bank. If I can just take your Honour to exhibit F19. The thing that's very interesting about the financial services guide issued that you get access to on the Ezy Bank website is that that is in fact issued by the Commonwealth Bank of Australia. It's not issued by Woolworths. It's issued by the Commonwealth Bank of Australia.
PN4447
THE VICE PRESIDENT: That's because it's the licence holder.
PN4448
MS GOOLEY: That's right, and Woolworths is - which is in contrast to the CommSec financial services guide which is issued by CommSec.
PN4449
THE VICE PRESIDENT: The distinction is found in 911A(2) of the Corporations Law which sets out the exemptions and the sort of arrangement one finds between Woolworths and the Commonwealth Bank would appear to fall within one of the exemptions, whereas, because of the definitions of financial product security, it would appear that CommSec has an obligation to be licensed in its own right independently of the fact that it may be offering financial products of the Commonwealth Bank as agent, because its core activity of share broking is itself within the financial services industry's regulatory scheme as embodied in the Corporations Law.
PN4450
MS GOOLEY: And we were going to take your Honour to those sections, which we don't need to do now, your Honour, in relation to that very critical difference between someone like Ezy Bank which Mr Douglas wants to equate with CommSec and - - -
PN4451
THE VICE PRESIDENT: It's a little unfortunate that these matters were not raised with either of the expert witnesses. Anyway, that's the situation.
PN4452
MS GOOLEY: Your Honour will notice in Professor Walker's report where he annexes the financial services guide of CommSec at RGW8 he also annexes in that same exhibit the financial services guide of Share Direct Nominees Pty Limited. That again is a financial services guide that is authorised by Commonwealth Securities. If your Honour goes to RGW8 your Honour will see that this is a financial services guide produced by Commonwealth Securities and it's badged both as the financial services guide provided by Premium Financial Services, and then at the end of that there is another financial services guide which is the Share Direct Nominees Pty Limited services guide.
PN4453
Your Honour will see that the provider of the services described in this finance services guide is Share Direct Nominees, an authorised representative of Commonwealth Securities Limited. Your Honour will recall from your Honour's reading of the Corporations Law, of course, authorised representatives are not required to be licensed either.
PN4454
So we say you can draw a distinction between CommSec and the other bodies that Mr Douglas referred to, and it's notable that that difference was not taken up with Professor Walker in cross-examination. Mr Douglas did not produce to Professor Walker the nature of the financial services guide that was in fact produced by Ezy Bank.
PN4455
THE VICE PRESIDENT: Are you taking a Browne v Dunn point? That's a very dangerous position to be adopting, having regard to the non Brown-ing and Dunn-ing of Professor Hewson in many respects. Dangerous perhaps is the wrong word; brave.
PN4456
MS GOOLEY: As we say, the conclusion that CommSec seeks to draw from Professor Walker is not a conclusion that Professor Walker in fact made. As we say, the question of whether a particular business provides financial services and therefore is in the financial services industry will be determined on the facts of each business. We have not suggested, as appears in the submissions in reply of CommSec, that any business that deals in money is in the finance industry. It seems to be suggesting that we're putting up a proposition that just because a shop has a cash register that you're in the finance industry.
PN4457
The thing you've got to think about is what is the key nature of CommSec? CommSec has a stockbroking arm. It is not simply a place where you lodge and you put in an order form, buy your shares, put in a sell form, etcetera. CommSec on their own evidence provides clients with financial advice, investment advice, and insurance advice. CommSec does more than act as a promoter of CBA products.
PN4458
If your Honour looks at RGW8, which is a financial services guide for CommSec, your Honour will see the list of financial services and products that they offer on page 2. If your Honour looks at page 11 they detail their advice services. They have their financial planning service, they have their wealth creation service, all part of the CommSec business. They will also advise the client, your Honour will see in the wealth creation service:
PN4459
We also advise you about the allocation of your portfolio ...(reads)... manage funds within each asset class.
PN4460
It's a very different body to Harvey Norman, Australia Post and Ezy Banking. Now, in submissions in reply, CommSec seems to have now suggested that this dispute is about a defacto demarcation dispute between the FSU and the ASU. I don't know whether you have got to that part of their submissions, as yet, your Honour.
PN4461
THE VICE PRESIDENT: No.
PN4462
MS GOOLEY: Just bear with me while I find it for you. I don't think Mr Douglas disputes that that is a characterisation of his submissions, but if you just bear with me a moment, your Honour.
PN4463
THE VICE PRESIDENT: It doesn't matter though, does it? I will hear from Mr Douglas on this, but I'm not concerned to confine the rules of the FSU on their proper construction because the proper construction may overlap with the rules of the ASU.
PN4464
MR DOUGLAS: Your Honour, I can't find the passage, but can I say that those words were in the first draft of this reply that I'm responsible for, and I asked for them to be taken out, and they weren't taken out. We don't rely on that. I think it is only a one liner, where reference is made to the fact that, in our submission, the ASU would have coverage of a significant group of CommSec employees under its rules, but we don't put it on the basis that there is some demarcation dispute, artificial or otherwise.
PN4465
THE VICE PRESIDENT: Well, I am right, am I not? I wouldn't matter in any event. You can have overlapping coverage and that that is just a fact of life, and there are mechanisms in the Act for the Commission, as it were, to arbitrate as to which union will have the rights to enrol members where there is overlapping coverage.
PN4466
MS GOOLEY: It used to be the old section 118A. It is now schedule 1(b), and I haven't re-learnt its new number because it is not a much used provision anymore because of the amendments.
PN4467
THE VICE PRESIDENT: I think Munro J dealt with the aircraft engineers at Avalon recently.
PN4468
MS GOOLEY: Yes, yes, that was an interesting decision. The respondents also submit, without any evidentiary base to found this statement, that it has always been understood to be - that the stockbroking industry has always been understood to be outside the FCUs rules, and there is no evidentiary foundation whatsoever that it has always been understood. The matter has not been - the only time the issue of whether, that I am aware of, or on my instructions, is the question arose, of course, when CommSec was served with a log of claims back in 1996, and a dispute was found - '95 - and certainly, at that stage, CommSec didn't take the point that it was outside the rules.
PN4469
There was a dispute finding; there was still a dispute finding, and given the - - -
PN4470
THE VICE PRESIDENT: Are you saying there is some estoppel or something akin to an estoppel arising, an issue estoppel?
PN4471
MS GOOLEY: I wouldn't go that far, your Honour. I just say that to come here - - -
PN4472
THE VICE PRESIDENT: Well, if you don't go that far, then Mr Douglas is free to take a point not taken then. It is as simple as that.
PN4473
MS GOOLEY: The point I'm making is there is no evidentiary foundation for the statement that CommSec make, there is no factual basis on which they can reach the conclusion that stockbrokers have - everybody understood they weren't within the Finance Sector Union's rules. That's the point that I'm making. Similarly, the statement - the assertion that the ASU is the union with extensive eligibility over such professionals.
PN4474
THE VICE PRESIDENT: You are pushing against an open door. Mr Douglas has withdrawn that submission.
PN4475
MS GOOLEY: Well, he withdrew the motion that this was just a demarcation dispute in disguise. There are other references in the submissions to the ASU. If he wishes to withdraw all references to the ASU in his submissions, then obviously I don't need to make the point. So, again, there is no evidentiary foundation before you that the ASU has extensive coverage of such professions and, in fact, there is no - - -
PN4476
THE VICE PRESIDENT: You can test those submissions that relate to the ASU.
PN4477
MS GOOLEY: Yes.
PN4478
THE VICE PRESIDENT: Fine.
PN4479
MS GOOLEY: And, in fact, that has been no long standing acceptance of the legal position in relation to these rules. These rules have only been in place for a relatively short period of time. You must recall that the union's rules did not, prior to the amendment that included the words, finance industry, financial intermediatories, the industry of financial services in 1996; those words were not contained in the rules of the union to talk about long standing practices. In that context, as we say, it is quite misleading. As we say, the union's rules were amended, as was in the material that had been produced by Mr Douglas, to extend to - to ensure that the Finance Sector Union had coverage of the finance industry.
PN4480
So, again, we always come back to this question of what is the finance industry, how are we going to define it, what meaning are we going to give to those words, and we have put forward to you a number of different sources of reference to what is the nature of the finance industry. The first one we put before you was appendix A to our submissions, which has been marked as an exhibit, which are the ANSIC classification structure.
PN4481
Mr Douglas, in his submissions, says, well - - -
PN4482
THE VICE PRESIDENT: Which Professor Walker treated with utter distain.
PN4483
MS GOOLEY: He may treat them with distain, but that is, you know - he did not treat them with utter distain. He said he had some difficulty with them, your Honour. I think to say that he treated them with distain is to misrepresent his evidence.
PN4484
THE VICE PRESIDENT: I was thinking of the body language, and the facial expressions, and the tone of voice, and the dripping sarcasm with which he adverted to the levels of competence and practicability of the Bureau of Statistics. No doubt, an idiosyncratic view, on his part.
PN4485
MS GOOLEY: Well, the classification structure as itself described, has been developed in corporation between the Australian and New Zealand bureaus. It has been developed with international standards in mind. I will just take you to that section of - - -
PN4486
THE VICE PRESIDENT: And it happens to enmesh quite neatly with the corporations law regime apparently.
PN4487
MS GOOLEY: And it says, on paragraph 12 of those, that in developing this classification structure - it discusses it at paragraphs 1 to 14 of the document, and it says:
PN4488
At the start of ...(reads)... on the basis of its predominant activity.
PN4489
And as the document shows, stockbrokers, financial service providers, don't use the words, financial intermediatories, are all in the finance and insurance industry. So there's a body which has developed and it has been adopted by both Australia and New Zealand, an industry classification structure and it would place CommSec in the finance industry. As I say those standards have been developed with international standards used as a reference point and it places stockbrokers in the finance and insurance industry sector. Similarly, we included for a reference point the Finance Industry Complaints Service body which you can see from RGW6 at page 6 CommSec tells us is the independent complaints body which if you've got a complaint about CommSec you go to.
PN4490
THE VICE PRESIDENT: Which is that again, sorry, RGW6?
PN4491
MS GOOLEY: I think it's 6, your Honour. No, it might be 8, your Honour. It's 8. I'll just find the reference for you.
PN4492
THE VICE PRESIDENT: Page 6?
PN4493
MS GOOLEY: Yes, down the bottom:
PN4494
If you're not satisfied with our response and wish to proceed further ...(reads)... by the Australian Securities and Investment Commission.
PN4495
CommSec as with the Commonwealth Bank are members of this organisation as a complaints body who deal with complaints for people in the financial services industry. In paragraph (b) as we referred to in our primary submissions the industry is defined in this to include life insurance, super, retirement savings accounts, funds management, provision of mortgages, financial advice, securities investment. Now, here you have the participants in the industry, in the finance services industry themselves defining the scope of that industry. I'm not saying it's the entirety of the industry but it's certainly - the industry makes it clear that it considers stockbrokers part of the financial services industry and as you've already pointed out the Financial Services Act makes stockbrokers a business in that industry.
PN4496
THE VICE PRESIDENT: That's the Financial Services Reform Act?
PN4497
MS GOOLEY: Yes, which is now part of the Corporations Law. When we referred to in our primary submissions the transcript of D300017 which was the transcript of the proceedings for the amalgamation of the five unions into what was then, I think, the Finance Service Union of Australia prior to its amalgamation with the Commonwealth Bank Officers Association, we referred to a quote and we got the unfortunately - the name of the author is R-e-i-n-e-c-k-e not as in our submissions and that's a correction we'll need to make to our submissions that the author's name is Ian Reinecke. In his book, The Money Masters, which was published in 1988 which is referred to at paragraph 23 of our submissions that author referred to the finance sector can be defined as:
PN4498
The industry area active not only in the traditional banking fields of borrowing and lending money ...(reads)... and takeover advice on financing.
PN4499
That book was published in 1988. So we say that the usage of the financial industry is understood both industrially and commercially and generally to include stockbrokers and financial service - the financial service providers. Then we say that if you reach that view then you have to decide what is CommSec? Now in their submissions - because we do say that CommSec's in or in connection with banking in or in connection with the finance industry, in or in connection with - we say it in fact fits within those categories.
PN4500
CommSec wants you to say look, all that banking is is those who are subject to specialised banking regulation. In effect what Commsec seems to be wanting to put to you is that the only people who are in or in connection with banking are banks, licensed banks and they say that in paragraph 22 where they say in their reply:
PN4501
In our submissions the words industry of banking must be limited to those industries which are the subject of the specialised banking regulations described by Professor Hewson.
PN4502
What we say in relation to that is - - -
PN4503
THE VICE PRESIDENT: You'd agree that the industry of banking though is narrower than the industry of finance.
PN4504
MS GOOLEY: Yes.
PN4505
THE VICE PRESIDENT: I imagine you'd submit that on one view the industry of banking is a subset of the industry of finance.
PN4506
MS GOOLEY: Yes, in fact if I could - if I had a blackboard I'd have a square which had the finance industry and I'd have these Venn diagrams which had overlapping sections because I think one might establish that banks are financial intermediaries. So they'd sit within that. There is a whole - and there are, though I am not going to even attempt in this proceeding what there are, there are bodies in the finance industry who are not in that list that's in the union's rules because remember the union's rule says:
PN4507
Including but not limited to the industry of banking, the industry of financial intermediaries, financial services etcetera etcetera.
PN4508
It is including but not limited to and - - -
PN4509
THE VICE PRESIDENT: But as Mr Douglas, I think, fairly points out you can't use the including but not limited to as a warrant to extend the breadth of the net cast by the clause in an unlimited fashion, that there's a generic limitation - there's a limitation by reference to the generic class.
PN4510
MS GOOLEY: I can't go outside the finance industry, no, I agree with that, but I'm not limited to banking intermediaries. I will stand here and say I am not an expert in the finance industry and all that it involves.
PN4511
THE VICE PRESIDENT: Yes, no one has mentioned leveraged leasing yet.
PN4512
MS GOOLEY: I'm glad they haven't mentioned leveraged leasing because I've got no idea what leveraged leasing is. That was one of the reasons why we did include the description. The Commonwealth Bank not only says to the public through its website about what its banking business but what it says to its shareholders in its annual report about what its banking business is. It doesn't have a very narrow view of banking and as I said earlier banking is a developing concept, but more to the point
PN4513
- - -
PN4514
THE VICE PRESIDENT: What do you say is the precise relevance of that evidence? Is it in the nature of an admission?
PN4515
MS GOOLEY: Yes.
PN4516
THE VICE PRESIDENT: You see whether or not something has a particular - properly fits within a particular descriptor is a matter of objective fact and the mere assertion even by a party itself can't be determinative of that. Say for example the Commonwealth has legislative power in relation to lighthouses, beacons and buoys they can't define what we would describe as a fire engine as a lighthouse.
PN4517
It will require constitutional power to legislate in relation to what are called lighthouses but are in truth fire engines. Isn't there something of that same notion here, that what the bank holds itself out to be has relatively little weight.
PN4518
MS GOOLEY: Well I don't think so your Honour, I think that - - -
PN4519
THE VICE PRESIDENT: Sorry, what it describes itself as, there's a distinction there.
PN4520
MS GOOLEY: I think how the bank describes itself informs us of what the developing concept of banking means in this country. It is not a fixed concept, the Commonwealth Bank itself describes itself in this fashion. I am not saying that you are bound by that but it is very interesting that it doesn't for example, and we know from the experience of the number of companies that we logged, that the Commonwealth Bank has a number of subsidiaries, wholly owned subsidiaries which are involved in I think Mr Douglas told us transport, farming, those kind of matters.
PN4521
THE VICE PRESIDENT: Hotels.
PN4522
MS GOOLEY: Hotels, the bank doesn't, if the bank came along and said, the business of banking involves farming, well then it would be a very different scenario but that's not what the bank has come along and done. It's picked of its operations those matters that it sees as being in modern day banking. What I'm saying is that informs this Commission about the nature of the banking business in 2004 and in the end you don't need to decide that because you don't have to be a bank under the FSUs rules for the union to have eligibility because of the in or in connection with.
PN4523
As we say if the only coverage we have is employees of banks or those that are highly regulated, Illaton, and remember Illaton didn't just go to the Full Bench of the Commission, it went to the High as well, not on whether these employees were within its scope but on whether the real nature of the dispute was in fact a demarcation dispute, but again those employees were employees of a service company, to a company that provides services to Metway Bank and they were in or in connection with banking.
PN4524
So if all Mr Douglas is saying is that the employees of CommSec engaged in PFS are effectively there as labour hire, we provide the labour but it's the Commonwealth Bank's business, all we are is providing labour to perform the work, then on the Illaton principles they are in or in connection with the banking industry and we have coverage.
PN4525
Mr Douglas also wants you to ignore in effect the Financial Services Reform Act and how it defines and regulates the financial services industry. He says, look it's just a piece of consumer protection legislation and has put a broad net out there.
PN4526
MR DOUGLAS: I didn't say that, Hewson said that.
PN4527
MS GOOLEY: Sorry, Hewson said that. Now the one thing that is clear within the union rules is - I just wondered whether you thought it was an appropriate time to have a break your Honour.
PN4528
THE VICE PRESIDENT: I am more than happy to have a break at the moment. I don't think I need to hear a lot more from you at this stage in relation to the issue of the eligibility rules, that isn't to say that there aren't issues but I think they're probably better dealt with in reply. To the extent that I have a provisional view, a provisional view that inclines in your favour Ms Gooley so far as eligibility is concerned and that without having studied the submissions of the respondent closely, and after studying them closely of course there may be things there that strike me as being sound, but at the moment, and I really wanted to hear from Mr Douglas about this, it seems to me that the concept of an industry within a set of union rules can evolve as the industry evolves, it evolves in tandem with the evolution of the industry, telecommunications would be a classic example where it was consisted twenty five years ago entirely of telephony and telegraphy and whereas today it encompasses a much broader range of activities, including activities that simply weren't dreamed of twenty five years ago and it does appear that there has been an evolution within the financial services industry and that the regulatory regime in the ASIC Act and the Corporations Law in chapter 7 are reflective of an underlying reality and I will need some persuading that I ought depart from that view in which case, and if that view is ultimately upheld, then you're within the financial services industry at least so far as CommSec is concerned.
PN4529
I obviously want to hear what Mr Douglas has to say about but when I come back if you deal with the genuineness issues to the extent that you want to, that would probably be the most efficient way to proceed, I have another hearing by telephone in relation to an unrelated FSU matter at 1 o'clock which will probably take ten or fifteen minutes, I propose to adjourn at about a quarter to four today because I have a commitment at a conference at 4 o'clock. Do the parties wish to resume early from lunch? I think it is probably desirable, isn't it, Mr Douglas?
PN4530
MR DOUGLAS: Yes.
PN4531
THE VICE PRESIDENT: Fine, well I will do that, I will adjourn now for fifteen minutes.
SHORT ADJOURNMENT [11.33am]
RESUMED [11.50am]
PN4532
MS GOOLEY: Thank you, your Honour. In relation to the matter that you raised before the adjournment we will go on to genuineness. If there are matters that come out of my friend's submissions we would obviously want to address those but also, your Honour, if there are matters that arise when you are reviewing the material that haven't been raised with us we would want an opportunity for you to advise us of those so we have an opportunity to respond if they're not matters that have already been dealt with, so if new matters come up out of your review of the material.
PN4533
THE VICE PRESIDENT: I will ensure that the requirements of procedural fairness are met. That is not an undertaking that I will raise particular matters but I will make the appropriate judgment as to whether or not there's something that represents a new issue, so to speak.
PN4534
MS GOOLEY: Genuineness; it seems that the submissions in reply of the respondents in this matter go to two elements about genuineness. One is what the nature of the dispute is. We rely on our primary submissions in relation to genuineness. We say that the evidence that has been put forward by Ms Caddie has not been refuted.
PN4535
We reject the suggestion that this is a dispute about the relationship between CommSec and the FSU and the CBA or the CBA and the FSU and there is no evidence to support that. The evidence of Ms Caddie it seems that the respondent in this proceeding wants to treat the Federal Court proceedings and the Commission as though they are one proceeding and they are not.
PN4536
Ms Caddie gave evidence, very clear evidence, uncontested evidence, that the union's purpose in making the demand on CommSec was to secure the tender conditions contained in the log over time. She gave unequivocal evidence that the Federal Court proceedings and the Commission proceedings had different purposes.
PN4537
The union in this proceeding is seeking to create future rights for employees of CommSec. In the Federal Court proceeding it is taking action to protect the rights of employees of the CBA because the 298K claim that is part of the Federal Court proceeding only relates and can only relate to those employees of the CBA who remained CBA employees in PFS and this proceeding cannot affect them in any way; they remain employees of the Commonwealth Bank of Australia. In addition, in those proceedings we are seeking declarations as to the transmission, if any, of the business from the Commonwealth Bank to CommSec and therefore that will affect the regulation of some of the employees of CommSec because the agreement, if we're right and has transmitted, does not apply to all of the employees of CommSec because the agreement of the CBA doesn't cover all employees of the Commonwealth Bank; it only goes up to a certain level, manager grade MC, so it doesn't cover all employees. So even if it transmits it won't cover all the employees of CommSec.
PN4538
It is also seeking declarations that the agreement that is currently being applied in CommSec doesn't apply to the work that it is alleged it covers but if we're right there, if that's the only thing we win on and that agreement is set aside, that doesn't have any impact on these proceedings at all. We are also seeking declarations that the CBA is in fact the employer of employees in the business unit PFS, all the employees in the business unit PFS as agent; the CBA is in fact the employer.
PN4539
They are all matters properly before the Federal Court of Australia. As I said that's quite a separate issue to the issue of whether the FSU is seeking for the employees of CommSec terms and conditions as contained in the log of claims served on CommSec. CommSec again seeks to submit that in the absence of documentary material indicating the objectives of the union which was repeatedly requested in these proceedings that there's no foundation for our claim and we say we have complied with the summons and we have provided them with additional material.
PN4540
CommSec seeks to create the impression that this was all about our failure to get interlocutory relief in the Federal Court proceedings whereas the evidence before this Commission is that the process was started well before the decision of Merkel J to deny us both interim relief at first instance and then interlocutory relief when he handed his decision down well after the company searches had been performed. Ms Grayson's evidence was the searches commenced at least six months before the decision on the day not to grant interim relief and the final decision of Merkel J not to grant interlocutory relief in the Federal Court proceedings; six months before the log.
PN4541
THE VICE PRESIDENT: So you say there's connection whatever between the Federal Court proceedings and these proceedings?
PN4542
MS GOOLEY: What there is a connection to is this; Ms Caddie gave evidence of it. She said CommSec came on the radar of the Finance Sector Union when the Commonwealth Bank decided that CommSec was going to be the employer of choice for all employees in Premium Financial Services. We do not resile from that fact. Ms Caddie gave evidence to that effect in this proceeding that that is when CommSec came on the radar of the FSU and at that point the FSU looked at CommSec and realised, not just the employees who were in the area of PFS but there were a number of employees within that organisation who did not receive terms and conditions commensurate with what the FSU saw as the finance industry terms and conditions of employment. So we don't resile from the fact that the two actions by the union arose from the same factual circumstance.
PN4543
The union was in a position where it found employees of the Commonwealth Bank being what we considered placed in an impossible position. They wanted a future with Premium Financial Services, they had to resign their employment with the Commonwealth Bank and take up employment with CommSec pursuant to a certified agreement which was measured in its no disadvantage test against the clerical award; that is the factual circumstance that - - -
PN4544
THE VICE PRESIDENT: There is a certain attraction it seems to me in the inference that the union "justifiably" concerned about the prospect of members who were covered by an award and a certified agreement moving into a circumstance where they were doing the same work but without the benefit of the protection of award coverage decided that it would seek to pursue certain remedies to address that in the Federal Court and then recognised there was more than one way of skinning a cat, if I can put it that way, and if the Federal Court proceedings were unsuccessful these proceedings would nevertheless achieve the same practical and "legitimate" industrial goal of the FSU?
PN4545
MS GOOLEY: Well, I don't disagree with the general proposition that you're putting but I do say that the Federal Court proceedings can't achieve what these proceedings can achieve.
PN4546
THE VICE PRESIDENT: No, no, in terms of the extent of coverage.
PN4547
MS GOOLEY: Yes.
PN4548
THE VICE PRESIDENT: Yes.
PN4549
MS GOOLEY: In the Finance Sector Union Ex parte Illaton and the Finance Sector Union Ex parte Schwartz which is 113 ALR 447; this was the High Court case involving Illaton - again I think I've given you some background about who Illaton was - where Illaton went to the court seeking that the dispute finding that had been made with Illaton be quashed.
PN4550
In those matters the primary submissions of the prosecutors was that the log was not advanced for the purpose of observing wages and conditions but demanded, for the purpose of enrolling the staff of Metway in the ABU to the exclusion of other unions, and that's where they ran this line that this wasn't a dispute with Illaton, it was a dispute between - a demarcation dispute between the union, and what four of the five judges of the High Court in that proceeding said:
PN4551
It is well settled that a dispute is genuine if the demands on which it is based are genuine demands ...(reads)... or of attracting the jurisdiction of the Commission.
PN4552
That's on page 456 of the ALR report. We say that even if they're right - - -
PN4553
THE VICE PRESIDENT: To the extent that there's a tension between that form of words and decisions of the High Court though I'm obliged to go with the High Court, am I not?
PN4554
MR DOUGLAS: That is the High Court, your Honour.
PN4555
MS GOOLEY: It is the High Court.
PN4556
THE VICE PRESIDENT: I'm sorry, I thought that was the Full Commission.
PN4557
MS GOOLEY: Sorry, no, it's ALR but it is the High Court. It was the four out of the five judges, it was Deane, Toohey, Gaudron and McHugh JJ.
PN4558
THE VICE PRESIDENT: Do you have a copy of that there; is there a copy in your material?
PN4559
MR DOUGLAS: It's in our bundle, your Honour. Could I provide our bundle. It's not there.
PN4560
MS GOOLEY: I'm sorry, your Honour. I was unfortunately caught late at night in our Sydney office where you need a code to operate the photocopying machine and I didn't have one.
PN4561
THE VICE PRESIDENT: That's fine, Ms Gooley.
PN4562
MS GOOLEY: So that is the High Court. It's the point that we've been debating in these proceedings I think since these proceedings began. One can have a number of motivations. CommSec wanted to try and suggest that improper motivation overwhelms all our other motivations. We say we don't have an improper motive, but we say even if we did, on the current state of the law it doesn't matter.
PN4563
THE VICE PRESIDENT: SPSF is authority for the proposition, isn't it, that if the object of the union is to simply achieve regulation by the Commission, and regulation in that peculiar sense of wages being at the discretion of the Commission, then that's an improper purpose.
PN4564
MS GOOLEY: And that was the only purpose they found in the SPSF case, and given the nature of the log which I think was a one item log which was for wages, that's presumably one of the reasons why the High Court reached that conclusion, but the High Court has said that if one of your motivations is to attract the jurisdiction of the Commission, it's doesn't make your demand not genuine.
PN4565
THE VICE PRESIDENT: Yes, thank you.
PN4566
MS GOOLEY: In relation to paragraph 110 of our primary submissions, my friends have pointed out an error in that. It currently reads, your Honour - there's a section in our thing where we say CommSec started provided services to CommSec. It should in fact read that CommSec did not being providing - 110, down the bottom it says:
PN4567
Mr Paul Rickard, founding director of CommSec, gave evidence in these proceedings that CommSec did not begin providing financial products to CommSec until the late 90s.
PN4568
That should read:
PN4569
...gave evidence in these proceedings that CommSec did not begin providing financial products until the late 1990s.
PN4570
So delete "to CommSec".
PN4571
THE VICE PRESIDENT: Yes.
PN4572
MS GOOLEY: In relation to CommSec's statement about the actual demands being fanciful, we refer your Honour to paragraphs 116 to 120. CommSec seek to put before your Honour a table which shows that, you know, if this was granted - I think at page 67 of C22. They say that our claim is for a minimum rate of salary per annum for each and every employee between the range of $100,000 and $250,000. We say within the context of the finance industry that is certainly not fanciful.
PN4573
If you examine the current EBA between the Finance Sector and the Commonwealth Bank of Australia you will see that the top rate of pay applicable under that agreement is $74,625 with a maximum bonus of 15 per cent. That gives a salary of $85,818 in present money. The High Court in the SPSF case at the same time it decided that the SPSF log of claims was fanciful, reviewed an ETU log cast in what was described as extravagant terms and determined that that was not fanciful, and made a number of comments about the nature of ambit and what that results in in terms of logs of claims which they think are relevant to these proceedings.
PN4574
CommSec further seeks to rely on the fact that we did not seek a dispute finding at this time with Tactical Global Management, as yet another example to establish that we had an improper purpose. We say that the material supplied in these proceedings which go to they say show the similarity between Tactical Global Management and CommSec in fact establish their substantial differences, however it is not a foundation to conclude that the union was not genuine in seeking the demands it made on CommSec that it determined not to pursue a dispute finding against Tactical Global Management at this time.
PN4575
We further submit that it's not a prerequisite for a union making demands on an employer for them to be familiar with the terms and conditions currently applying to those employees. In the High Court case which we've referred to, proceedings where Kirby J made the comments about cross-examining union witnesses, there was a reference in that decision to the fact that one of the union officials, except for one employer, didn't even know whether the employer that people served were employers or not. That did not stand in the way of a dispute finding.
PN4576
If, in any event, any of the employers had contacted the FSU and said, We already provide those terms and conditions as contained in your log to our employees, then the FSU would have had no dispute with those employers and we also in that regard rely on our submissions at paragraph 116 to 119. So we say on the question of genuineness the evidence is before you, it's not been contradicted, the union is genuinely seeking the demands that it has made. Ms Caddie gave evidence in her first witness statement, made it absolutely clear that she was authorised to give this evidence on behalf of the Finance Sector Union. The fact that CommSec seeks to make something of the fact that she used the term "I" rather than "we", we think is grasping at straws.
PN4577
As I've said in relation to the question about Electrolux we will provide you with a written response to what seems to be the submissions of CommSec that unless every matter in a log of claims pertains to the relationship of employer and employee the log of claims is not valid and further that they claim that many of the matters in our log of claims do not pertain to the relationship of employee, employer and employee, except for the issue of payroll deductions which I think is well and truly settled doesn't pertain, we would take issue with those but we will do those in our written submissions. Unless you have any further questions your Honour.
PN4578
THE VICE PRESIDENT: No, I think it is better if you deal with other remaining matters in reply.
PN4579
MR DOUGLAS: There are two minor corrections to our submissions in reply your Honour, they are typos, the first is at paragraph 20 I think wherein the third line there was a star or a cross put in front of the words, Professor Walker and that's obviously a typo, it's not designed to give him an award or a penalty and then the second one, paragraph 117 - - -
PN4580
THE VICE PRESIDENT: It's the sort of thing you would find after an Archbishop's name, .......
PN4581
MR DOUGLAS: Yes, well I haven't seen one before, the name your Honour. Then in paragraph 117 in the fourth line, the words are, as typed are claims without the pertaining matters, it should read claims without the non pertaining matters, that's paragraph 117 on page 45. The question of the company searches your Honour, Ms Gooley a short while ago referred to the searches being made some six months before - - -
PN4582
THE VICE PRESIDENT: Mr Douglas, just on this Electrolux point which I haven't studied at all, I have to say I regard the exchange of full written submissions as more for the benefit of the parties, so that there is no surprise in the final argument but in any event, I mean obviously they're useful for the Bench as well, Electrolux was concerned with the validity of a bargaining period in relation to particular claims and whether or not there was protected action and the finding was that you could not have protected action in respect of a claim that was in respect of a matter that did not pertain to the requisite relationship and then comments were made which are strictly obiter but may as well be treated as ratio because of the nature of the decisions and the unanimity of views that can be gathered from the majority, that there can be no valid application for the certification of an agreement under Part 6B of the Act unless every substantive clause in the agreement is about a matter that pertains to the requisite relationship.
PN4583
In the dispute finding context the Commission is not limited, is it, to the log as claimed in terms of finding a dispute. The Commission can disregard parts of the log and express its dispute finding as relating to parts only of a log and not to the whole of a log?
PN4584
MR DOUGLAS: Before that as a proposition your Honour is a question.
PN4585
THE VICE PRESIDENT: Yes, do you disagree with that as a proposition?
PN4586
MR DOUGLAS: In the circumstances of this case, yes your Honour I disagree with that proposition and I will explain.
PN4587
THE VICE PRESIDENT: But in some circumstances that is open to the Commission.
PN4588
MR DOUGLAS: Well no, not now after Electrolux because your Honour Electrolux requires careful reading, that's the first point I make about it.
PN4589
THE VICE PRESIDENT: Yes, I agree with that proposition.
PN4590
MR DOUGLAS: Secondly, I query your Honour's comment about the obiter because if you look at the decision in detail you will notice that the members of the court were at pains to point out that they had to answer three questions and one of those three questions was, and this was the critical one I think the first - - -
PN4591
THE VICE PRESIDENT: Look, it doesn't matter, I treat it as ratio anyway.
PN4592
MR DOUGLAS: Yes but the first question - - -
PN4593
THE VICE PRESIDENT: Sorry, let me amend that, I would not contemplate departing from what's been said in Electrolux on the basis that it was merely obiter, would not contemplate that.
PN4594
MR DOUGLAS: The question your Honour that touches directly on the question you put to me here was the question whether or not an agreement could be certified if it contained one non pertaining matter and the answer to that question was, no it could not be certified.
PN4595
THE VICE PRESIDENT: Yes.
PN4596
MR DOUGLAS: Now we have argued in our submissions in reply and what we say on this issue of Electrolux is put in detail and depth. We say that because of the similarity of the wording of the legislation, the two relevant sections, the section that deals with the certification of agreement or the making of certified agreements and the section that deals with dispute findings, the wording is some similar your Honour that the logic of the Electrolux case must be applied to now, to dispute finding exercises and as it is made clear in that decision particularly so because that decision reaffirms the position in Portus which was a case that I was concerned in and Alcan which was another case I was concerned in.
PN4597
THE VICE PRESIDENT: You've been concerned in most of them, haven't you Mr Douglas. There's nothing particularly special about those two cases on that account.
PN4598
MR DOUGLAS: No your Honour, save that, well that's for another day. So that yes your Honour, we say that based on what we've put in our written submissions, and I don't want to expand on those here because we've said all we need to say there in a very considered way, we say that the logic of Electrolux must be applied here.
PN4599
THE VICE PRESIDENT: This issue is clearly not going to be determined finally by me. You don't need to respond to that but that's just bleedingly obvious. In any event I will endeavour to do my best to get it right.
PN4600
MR DOUGLAS: I'm sure you will your Honour and I've got a few other comments to make about that particular issue later on in these submissions. Could I come back to some of the other matters that were touched on earlier by Ms Gooley this morning. The question of company searches, she said a short while ago that the company searches began some six months before the log was served, that is our belief too but if you look at the chronology which is attached to our submissions, our bundle in reply - - -
PN4601
THE VICE PRESIDENT: Yes, annexure A, yes.
PN4602
MR DOUGLAS: Yes, you will see your Honour on page 6 of that document that the application to Merkel J in the Federal Court for an interlocutory injunction went before him on 16 and 17 April, that the first of the company searches that are in evidence before the Commission were conducted on 2 May, that is seven days before his decision, he gave his decision rejecting the interlocutory relief application on 9 May and the second lot of searches were conducted on 14 May, being the other searches that we have in evidence before the Commission.
PN4603
Now the searches that Ms Gooley refers to, the ones that began six months earlier before the log was served, some months before 16 and 17 April they are not before your Honour and they can only be in the PSF file. Well I hear from the union side of the bar - - -
PN4604
THE VICE PRESIDENT: Whether they are before me or not is not the issue though, is it, the issue is whether or not there's evidence that they occurred which is acceptable evidence and ought be acted upon.
PN4605
MR DOUGLAS: Well the union is saying they occurred and I just heard a moment ago the comment that they're in the bin, that may well be, they might have been in the bin some time ago. In any event, your Honour, it's just a bit of background material that is relevant having in mind the legal to'ing and fro'ing that occurred some weeks ago.
PN4606
THE VICE PRESIDENT: Mr Douglas, in a broad sense I have a more sort of a fundamental problem with this as a thrust of attack on the union's application and it's this; I suppose one might ask the rhetorical question, so what? So what if the decision to log CommSec was driven by or motivated by the problems that the union encountered in the Federal Court proceedings that it commenced and the refusal of Merkel J to grant interlocutory relief. The union's concern was that there was a group of members, employees of the Commonwealth Bank, engaged in banking work who were being transferred piecemeal to CommSec moving from an award environment to an award-free environment, moving from an environment where they had the underlying protection of the award to an environment where they did not and in terms of terms and conditions it is squarely within the legitimate and proper purposes of the FSU to seek to protect the interests of those members, isn't it, by securing for them in the CommSec environment the same award protection that they had or enjoyed as employees of the Commonwealth Bank and whether they achieve that goal through the Federal Court proceedings or through these proceedings at the end of the day would probably be of no particular concern to the union other than in relation to the costs of the alternative exercises and that the very goal there is in fact the fundamentally genuine and legitimate purpose that the authorities advert to.
PN4607
True is it there's not an expectation that in serving the log, and I put aside from this discussion, the issues about extravagance and fancifulness and what have you, if you just put those issues to one side, the very purpose which the union seeks to achieve, as I have described it, is the same purpose that the authorities identify as being genuine.
PN4608
MR DOUGLAS: There are two things - - -
PN4609
THE VICE PRESIDENT: You might re-characterise it as interfering with the human resources restructuring of the Commonwealth Bank Group but that really is a matter of re-characterisation isn't it?
PN4610
MR DOUGLAS: Your Honour, the question you put to me began with, so what? The so what, your Honour, is that the union has put submissions to you here this morning no different to what it has put previously being that there is not one dispute as we argue that exists by reason of what is occurring in the Federal - - -
PN4611
THE VICE PRESIDENT: But I am not obliged to act on those submissions, I am obliged to find the facts according to the evidence to the best of my ability and at the moment the way I articulate it to you is a sort of provisional view of the way these events ought be characterised in a fundamental sense.
PN4612
MR DOUGLAS: Your Honour, the minor point that I am seeking to make first is that the search issue, the issue of the searches - remember Caddie reported to her section committee in February, the chronology shows the first search being conducted after the union has been before Merkel J but the union - - -
PN4613
THE VICE PRESIDENT: This is putting aside the question of this earlier search that - - -
PN4614
MR DOUGLAS: Yes, and the union says there were searches that began six months before the log was served. That would mean that those searches began very, very soon after if not before the report was made to the CBO section committee in February.
PN4615
THE VICE PRESIDENT: So it's all linked on your thesis, that's fine.
PN4616
MR DOUGLAS: That's right, your Honour, and the searches and that bit of information is one factor that goes to establishing the proposition we put that it's one dispute and if you come to that conclusion that what is in the Federal Court and in the Commission is part of the one thing then that's a dispute that this Commission can't deal with because it's about impermissible matters.
PN4617
You can only make a finding if you determine that the service of the log of claims as put to you by the union is totally separate and unconnected in a disputes sense with the events that led to what is occurring in the Federal Court.
PN4618
THE VICE PRESIDENT: Why is that so?
PN4619
MR DOUGLAS: Why is that so, your Honour, because we say that the service of the log is tainted, overwhelmed by what is occurring in the Federal Court because the log is being served for an illegitimate purpose. Now, it all comes back to what you - - -
PN4620
THE VICE PRESIDENT: The illegitimate purpose is to secure the protections of an award and the minimum terms and conditions through an award which they may be unsuccessful in securing in the Federal Court?
PN4621
MR DOUGLAS: Your Honour, that's not the evidence though. The evidence is that the Federal Court proceedings were begun because the CBA and CommSec failed to agree to an ultimatum that was put on them late the year before being that no more employees of the CBA would be moved to CommSec without full consultation with the union. That was the demand and that gave rise to the nature of the issue that then went to the Federal Court; that's the evidence. To say that it's all about - - -
PN4622
THE VICE PRESIDENT: I suppose what I am seeking from you is what do you say is wrong with the characterisation in a general sense that I have put as an hypothesis?
PN4623
MR DOUGLAS: As a general characterisation, your Honour, I don't have any difficulty with but that's an impermissible purpose. I will demonstrate to you this morning or early t his afternoon that the purpose or intent of the union with respect to the service of the log of claims was an impermissible purpose, because of an impermissible intent or purpose, and that that purpose can be explained by looking at the resolution, apart from anything else. I would like to address that in due course as I come to it, your Honour.
PN4624
THE VICE PRESIDENT: Certainly.
PN4625
MR DOUGLAS: Can I deal with one or two other matters. Firstly, your Honour raised this question of the nature of the finance industry and, I guess, other industries, changing over time with technological change and is there a capacity in the union rules to cater for that change?
PN4626
THE VICE PRESIDENT: Just before you depart from these chronology entries that you were taking me to, 26 February 2003 suggests, doesn't it, that the union had a dual strategy or dual courses of action that it was proposing to pursue from as early as February 2003. The decision to log CommSec and the other subsidiaries was not some after thought produced by the unhappy outcome from the union's perspective of the proceedings before Merkel J.
PN4627
MR DOUGLAS: No, your Honour. No, our only complaint is that we weren't able to get our hands on the searches that were conducted earlier, that's the thing that we would have liked to have achieved.
PN4628
THE VICE PRESIDENT: Because they may have demonstrated - - -
PN4629
MR DOUGLAS: Well, they may have made it more certain that the argument we put as to the nature of the one dispute is absolutely true. I mean we don't what's in those searches. We don't even know where they searched, who they searched.
PN4630
THE VICE PRESIDENT: Sorry, on this point of searches, I thought that the searches was one aspect of the summons that had been sought that was allowed and do you say there has been a - Ms Gooley, has there been a non production of documents?
PN4631
MS GOOLEY: No, your Honour. We have advised you repeatedly that we have complied.
PN4632
THE VICE PRESIDENT: Well, that was my recollection. Mr Douglas, you say - - -
PN4633
MR DOUGLAS: I must accept that, your Honour, but all we can speculate is that maybe those searches were, at some stage, what became known as the PFS file.
PN4634
THE VICE PRESIDENT: Well, I think there has been a sufficient jumping up and down about the non production of documents that there have been very thorough searches done and re-done and re-done and that has led to the drip-feed production of documents as those more thorough checks and re-checks have produced further documents. But do I remember correctly that some evidence was given by Ms Grayson that she had conducted searches as far back as six months and she was unsure about the timeframe, but that was her best guesstimate before the time of Merkel Js decision.
PN4635
MR DOUGLAS: I think you can draw from that evidence, your Honour - - -
PN4636
THE VICE PRESIDENT: And that those searches simply couldn't be found and they may well have been thrown out, who knows?
PN4637
MR DOUGLAS: I don't want to make any more of these searches. I've just made the point that the searches began certainly shortly after the report by Ms Caddie to her section committee in February, if not before that and you're right, your Honour, that that report, what occurred at that section committee in February demonstrated that there were two strategies with respect to the one cat. It wasn't two strategies about two cats.
PN4638
THE VICE PRESIDENT: That's right. Two different ways of pursuing disputes in relation to the one cat.
PN4639
MR DOUGLAS: Two different ways of skinning the one dispute. You can only skin it once.
PN4640
THE VICE PRESIDENT: No doubt you'll explain that to me when you get to it. I'm just having some difficulty why - that the proposition that these things must be characterised as one dispute. Ms Gooley's point that the log, when served, seeks to raise a dispute in relation to all of the employees of CommSec, whereas the dispute that was being pursued in the Federal Court was a dispute that was confined to employees of PFS who found themselves in CommSec which is a subset of the larger group, necessarily has to be two different disputes as a matter of objective legal analysis.
PN4641
MR DOUGLAS: Not when you take into account the transmission of business application, your Honour. I mean my friend says that the CBA award goes up to MC, manager. Then we hear evidence that the salaries are what, $75,000, $85,000 a year. I mean if they succeed on the transmission of business application for all intents and purposes they will have CommSec covered by an award. They don't seek to cover the CBA beyond MC, why would they, in practical terms, seek to cover CommSec beyond MC? In other words, they would have exactly the same coverage in terms of the employee structure.
PN4642
THE VICE PRESIDENT: Well, I haven't looked closely at the transmission of business aspect of this matter, but I had understood that it was directed towards the PFS portion only of CommSec.
PN4643
MR DOUGLAS: No, your Honour. You can't dissect section 149(1)(b) in that fashion. If a business or part of a business transfers from A to B - - -
PN4644
THE VICE PRESIDENT: The award and certified agreement travel with it.
PN4645
MR DOUGLAS: Yes.
PN4646
THE VICE PRESIDENT: That's right.
PN4647
MR DOUGLAS: And it covers everybody in B.
PN4648
THE VICE PRESIDENT: PFS covers everyone in the business in B.
PN4649
MR DOUGLAS: That's right.
PN4650
THE VICE PRESIDENT: So if PFS moves to CommSec, the award and agreement travel with it and apply to the PFS employees in CommSec and the people who are doing the pure broking remain unaffected by the transmission of business.
PN4651
MR DOUGLAS: No, your Honour, not if you look at the note, the incidence clause of the award and the classification structure. For all intents and purposes, the point I'm trying to make is that for all intents and purposes the award at CommSec would have exactly the same coverage, industrial coverage in practical terms that it has at the CBA in terms of those employees. There would be no difference. Absolutely no difference and in terms of practical operation that satisfies the FSU at the Commonwealth Bank and it had satisfied them at the Commonwealth Bank in relation to PSF employees up until the time the CBA said no to the ultimatum.
PN4652
THE VICE PRESIDENT: So you would characterise the one dispute, the one cat, in what way? I would characterise it provisionally as a dispute about directed towards preserving or securing in lieu terms and conditions of employment or PFS employees that went to CommSec which were at least equivalent to the terms and conditions afforded by the protection of awards and agreements in the Commonwealth Bank.
PN4653
MR DOUGLAS: Your Honour, we describe the nature of this one dispute in our submissions, C21, from paragraph 64 onwards. Your Honour, there are a number of aspects to this one dispute, but fundamentally it is about the movement of CBA employees from the bank to CommSec without consultation occurring with the union, leading to a position where the union has no representational rights and no regulatory control in the sense of having those employees covered by an award and/or agreement that the FSU is a party to.
PN4654
But it's about the uncontrolled movement of CBA employees from the Commonwealth Bank to CommSec. That's what it is about and I'll show you when I come to some other matters shortly, your Honour - - -
PN4655
THE VICE PRESIDENT: But if it's - can I say this is one of the aspects of your case that has some attraction for me, notwithstanding the summons decisions in the sense that I think I'm not persuaded that it's without merit by a long chalk which is why I want to test it with you.
PN4656
The FSU would have had no objection whatever to the transfer of employees from the Commonwealth Bank to CommSec if the Commonwealth Bank and/or CommSec had said, yes, and we'll put in place the same certified agreement and award regulation, or coverage, as exists for those employees at the moment when there are situ in CommSec.
PN4657
MR DOUGLAS: Quite, and he says that. She said the first thing that came to my concern - - -
PN4658
THE VICE PRESIDENT: Isn't that ultimately what the dispute is about?
PN4659
MR DOUGLAS: She called it a grave concern, your Honour, that these people were going from the CBA to CommSec. They had to resign their CBA employment and sign up on one of these individual agreements made under the LK agreement that was applicable to CommSec. That is the thing that gave rise to what she described, as I say, her grave concern. Ultimately, that led to the ultimatum. That was the only way the union could stop that process occurring, saying, if you, the CBA, don't stop this we will go to the Federal Court. Now we demand of you to stop and don't do this any further until such time as you have had full consultation with us.
PN4660
THE VICE PRESIDENT: The logging of CommSec can't in any way, as a matter of law, impede that process of the offering of individual agreements pursuant to the LK agreement.
PN4661
MR DOUGLAS: No, your Honour, of course it can't, not initially, but ultimately what the union was on about with the two tactical approaches to this one cat was to secure, if people were to go across, was to secure a position where the FSU was a party to the process and the award and certified agreement conditions would be identical from one to the other.
PN4662
But the experience that led to the explosion showed that that wasn't going to occur because the Commonwealth Bank refused to talk to the FSU along those lines. That's why the ultimatum was given. So that's what the one dispute was about. I mean there are a whole bunch of things hanging off the edge of this. It is the nature of the individual agreement. It is the attitude of the union to the individual agreements, the view it has about the LK agreement that's in place, and so. But there were two tactical processes put together to deal with the one issue.
PN4663
Now, as I say your Honour, I will come to this further. I want to take you to some passages in the transcript and I want to come to SPSF because SPSF is related to this.
PN4664
THE VICE PRESIDENT: Yes.
PN4665
MR DOUGLAS: And it is very difficult, your Honour, to put the submission in the logical way by, with respect, answering questions.
PN4666
THE VICE PRESIDENT: Fine, I'll shut my trap and leave you to develop it in the way that you think is - - -
PN4667
MR DOUGLAS: No, I don't invite your Honour to do that because I welcome questioning, but it would be more suitable to me, your Honour, to deal with those questions when I'm dealing with SPSF, if I can put it that way.
PN4668
THE VICE PRESIDENT: Certainly.
PN4669
MR DOUGLAS: The evolving nature of industries, your Honour, and the evolving natures of union rules. The High Court has certainly said without any shadow of doubt, yes union rules are capable of being read, where the words suit of course, read to fit with an industry that evolves, and the FSUs rules don't fall beyond the scope of that capacity. But the important thing here is, your Honour, is that the evidence that has been given by Rickard, and the evidence from the court by CAT, the evidence of Professor Hewson and I must say the evidence of Professor Walker is about the position today and it's the words that exist that you have to apply to the factual position that exists today.
PN4670
Now it may be, or it may not be, the words in the union's rules are capable of dealing with the view that the union puts forward to you as to CommSec's operations. We say, no, those rules are not capable of fitting CommSec into those rules so eligibility arises. Your Honour, I make the point also that the Illaton decision in the High Court, I think, was before SPSF. I don't take issue with the wording of the High Court decision that you've been referred to in that case, other than saying it has to be read in the light of SPSF.
PN4671
I invite your Honour, the comment was made in relation to the financial services guide that was issued by Woolworths with respect to its Ezy Banking operation. I invite you to look, for instance, at the one that's put out by Flight Centre, and that's at page 0153 of the volume. When the Commonwealth Bank reports in its annual report and describes its banking business your Honour, it is talking about the Commonwealth Bank's group. That is made clear if you look at the annual report and see the long list of subsidiaries that are - - -
PN4672
THE VICE PRESIDENT: Sorry, what is the point about this Flight Centre documents?
PN4673
MR DOUGLAS: The union made the point that the financial services guide put out by Woolworths was put out under the name of the Commonwealth Bank. If you look at the Flight Centre services guide you'll see there, for instance, it is put out under the name of Flight Centre and other entities that Flight Centre is related to. So it comes back to whether there is an exemption under the legislation or not, as your Honour referred to earlier.
PN4674
THE VICE PRESIDENT: Yes.
PN4675
MR DOUGLAS: One of the essential points in looking at this issue, as Professor Hewson did, is that you determine the eligibility of these employees, whether they are eligible or not, by looking at the nature of the business of the particular entity that is the employer. You can't go beyond the boundaries of that entity and Professor Hewson concentrated his evidence on CommSec as an entity. Professor Walker went beyond that. His evidence, in part, went to the nature of the group concerned. So you look at the entity, which is CommSec. You look at the business of that entity and you determine what is the core of that business and if the core of that business in not in connection with the banking industry or doesn't fall under one of the other heads, then eligibility doesn't arise.
PN4676
THE VICE PRESIDENT: Shaw J, before his elevation to the bench, wrote an article interpreting trade union constitution rules in 62 ALF. No doubt you are familiar with it. He summarised the position in this fashion:
PN4677
However, a Full Bench of the Australian Conciliation and Arbitration Commission ...(reads)... Barwick CJ -
PN4678
that's in re Federated Liquor and Allied Industries v Pune Bros -
PN4679
did not intend to lay down any general rule to the effect that reference to ...(reads)... professional engineers.
PN4680
MR DOUGLAS: That's right.
PN4681
THE VICE PRESIDENT: Now I appreciate that you would seek to distinguish engineering as a vocational calling from banking or the provision of financial services, but you say I am obliged as a matter of authority, to treat the eligibility rule in rule five as requiring me to focus on the industry of the employer rather than the industry in respect of which particular employees work?
PN4682
MR DOUGLAS: Yes, your Honour, and if you look at Hibble, Pune, Uranium, Advance Bank and the Illaton appeal decision in the Commission you will find that the logic of that flows right through and in fact that's the way the ABUs, in a relevant sense, have been interpreted. In other words the words in 5.2 have been interpreted that way and the words in 5.8, the grounding words, in other words, the in or in connection with, employees that are in connection with, are exactly the same. So that the logic must apply.
PN4683
Rule 4.1 which applies to both, has always been in the form that it is now save that's been expanded as the amalgamation process has proceeded. Your Honour, Ms Gooley made a comment about Caddie's evidence, saying that all of the evidence that she has given is evidence as to what the union was about.
PN4684
The transcript will show that at one place in cross-examination I did ask her whether she was speaking on behalf of the union or on her own behalf and she said she was speaking on behalf of the union. When you go through her evidence particularly as to what she says in an I or we sense before the log was served you will see without a shadow of doubt that she was talking about what she was doing and what her motives were. For instance, when she said I had grave concern when I understood what was happening in PSF. That was her view.
PN4685
When she reported to the section committee in February they were her views, not the views of the union. So there is a distinction to be made and I don't know how many times Ms Gooley has said it in this proceeding you can't take into account the personal views of union officials and she's referred to decisions. So you must be very careful in my submission, your Honour, to make a distinction between the evidence of Caddie when she was without doubt speaking what the union was on about and what she was concerned to do.
PN4686
Now I'll come to a very fundamental question and answer that was put to her in chief in a moment where it's absolutely clear that what she was talking about was the position of the union and not her position and it's a question and answer that is relied upon by Ms Gooley and I think ultimately she will find much to her surprise that it may well be the question and answer that torpedoes the union with respect to this log of claim service. Can I take you to a few transcript and other references that go to this question of both - to eligibility and in particular the question of genuineness and I just do this, your Honour, very quickly to just highlight these passages.
PN4687
Some of them are contained in our written submissions although I'm not so sure all of them are. Now two PN points firstly at 400
and in Caddie's statement at paragraph 4 and at PN16 - - -
PN4688
THE VICE PRESIDENT: Just bear with me a minute will you, Mr Douglas?
PN4689
MR DOUGLAS: I think her statement was tendered, your Honour, at PN400 and in paragraph 4 of her statement of evidence and again
at PN1645 - I don't ask your Honour to go to these passages - she said these things. She said:
PN4690
The CBOS (being the CBO section) is empowered under the rules of the union ...(reads)... and its subsidiaries.
PN4691
Now that is wrong. The union or the section is not so empowered and that same statement is repeated at the transcript reference that
I gave you. On the question of regulation by the Commission - this goes to the motive and intent behind the service - at PN425 again
I think this is in paragraph 12 of her statement of evidence she says:
PN4692
As a result of our experience with CommSec the FSU became concerned -
PN4693
and I ask your Honour to take note of the word concerned -
PN4694
that there were other subsidiaries of the CBA whose employees basic terms and conditions were unregulated.
PN4695
Now when she said as a result of our experience with CommSec she was talking there of her experience and the experience of other officers
of the union with respect to this movement of employees from the CBA to CommSec and all that led up to the ultimatum and no doubt
certainly up to the time the report was made to the section committee. At PN4532-457 she said:
PN4696
On 13 June 2003 the assistant national secretary -
PN4697
who is now the federal secretary, of course, or the national secretary -
PN4698
advised the executive members that during the Federal Court proceedings ...(reads)... that are largely unregulated.
PN4699
At 1826 in cross-examination I put this to her:
PN4700
Why didn't you serve a log on the CBA?---Because we've got an award and agreements with the Commonwealth.
PN4701
And then she didn't go on but certainly meaning the Commonwealth Bank. At 1858 I put to her:
PN4702
That in February of 2003 you had come to a view ...(reads)... in the LK agreement.
PN4703
And she said:
PN4704
Well the impact that it would have on Commsec would be in any award that was made by this Commission then it would provide a safety net of terms and conditions that a category of work that the award was applicable to.
PN4705
At 1865 I put to her:
PN4706
What did you mean by the words to regulate, to get an award, did you?
PN4707
And she said:
PN4708
Well that may be the initial step along the path in achieving the terms and conditions as outlined in the log.
PN4709
I highlight the words initial step. At 1952 and 1953 - is your Honour adjourning at 1.00 o'clock?
PN4710
THE VICE PRESIDENT: Yes, or a couple of minutes to one. I have - go on - this other matter that I need to deal with.
PN4711
MR DOUGLAS: Yes, and I said:
PN4712
Failure to accede to this demand with - - -
PN4713
THE VICE PRESIDENT: Sorry, you're at which paragraph at the moment?
PN4714
MR DOUGLAS: This is in 1953 - 52, I think, and 53:
PN4715
Failure to accede to this demand within seven days ...(reads)... that is what eventuated.
PN4716
I said:
PN4717
But realistically the log was served to create a dispute, wasn't it?
PN4718
I ask your Honour to note that that question was put twice to her and two different answers were given. The first was this:
PN4719
The log was served as the first step in the process of trying to achieve terms and conditions set out in the log.
PN4720
I ask your Honour to take note of the words "as the first step in the process". I suggest that this first question is more likely to be the more accurate - the first answer is more likely to be the accurate answer than the second one. The second answer to the same question was:
PN4721
We served the log because we are genuinely attempting to achieve terms and conditions consistent with those in the log. What would cause a dispute would be a failure of one of the companies served to accede to the demand within the time frame set.
PN4722
Then there are a number of passages that deal with - that's all I wish to highlight in relation to regulation. There are some passages I want to go to in relation to this one dispute issue and maybe we should do that immediately after lunch.
PN4723
THE VICE PRESIDENT: I will resume at 1.45. Is that convenient to counsel?
PN4724
MR DOUGLAS: Yes, or earlier if your Honour wishes.
PN4725
THE VICE PRESIDENT: No, I will be some time with this other matter.
LUNCHEON ADJOURNMENT [1.00pm]
RESUMED [1.50pm]
PN4726
THE VICE PRESIDENT: Mr Douglas.
PN4727
MR DOUGLAS: Thank you, your Honour. Some references with respect to the one dispute argument. I don't go to these paragraphs, your Honour, - - -
PN4728
THE VICE PRESIDENT: Just before you go there. The precise characterisation or definition of the improper purpose that the respondent's been asserting has been something of a moveable feast. Is there a definitive statement of it that you rely upon? Are you happy to point to paragraph 66 and 67 of your submissions, for example, and say that that is the improper purpose that we now rely upon? Because when it was originally articulated it was, the improper purpose was said to be an attempt to interfere with the human resources restructuring of the Commonwealth Bank.
PN4729
MR DOUGLAS: Yes, we don't put it that way, your Honour.
PN4730
THE VICE PRESIDENT: So it's now, it's the one dispute point.
PN4731
MR DOUGLAS: It's the one dispute concept, your Honour, yes.
PN4732
THE VICE PRESIDENT: Well can I invite those that instruct you - and perhaps yourself - to think about whether or not there is a definitive statement of the improper purpose that you allege and if not if you could formulate it.
PN4733
MR DOUGLAS: Yes, your Honour, we'll do that and we'll provide Ms Gooley with a copy of it, of course, when we supply it to your Honour and she would have an opportunity to deal with it.
PN4734
THE VICE PRESIDENT: Yes. So on the one dispute point you had some references.
PN4735
MR DOUGLAS: Yes. Well the, just before, we'll leave that, your Honour. In a sense I have attempted to articulate it, it's very difficult where I stand at the moment to articulate the admissible purpose in a couple of sentences.
PN4736
THE VICE PRESIDENT: It's a bit of a problem isn't it given it's closing submissions.
PN4737
MR DOUGLAS: Yes. It's about the movement of those employees or the non-movement of those employees, it's about regulation of that movement both by the union and the Commission if that movement is to continue. And why I say regulation by the union, your Honour, is that the union - if you go back to the ultimatum - the union seeks to have a measure of control over the movement and if the movement and if the movement is to occur what Commission regulation there should be. But I'll do what your Honour suggests.
PN4738
THE VICE PRESIDENT: Yes.
PN4739
MR DOUGLAS: Probably, your Honour, we, together with what I've said 65, paragraph 65 through to 67 really deal with it but, your Honour, I think it's best if we try and put it together in one - - -
PN4740
THE VICE PRESIDENT: It must be possible to say, the improper purpose that we allege the FSU had was, colon - - -
PN4741
MR DOUGLAS: Yes, yes, your Honour, I'll do that. I don't go to these paragraphs, your Honour, but could I give you some references in Ms Caddie's affidavit in the Federal Court proceedings, the first affidavit. I invite your Honour to - in relation to this issue - read paragraphs 107, 109, 113, 114, 145, 186 and 187, 190, 197 through to 201 inclusive and finally paragraph 203. At PN 1645, 1659 and 1664 there's this evidence. Ms Gooley put this question:
PN4742
What occurred at Premium Financial Services that led you to make this report?
PN4743
This is the report to the Section Committee on the 26th of February 2003. She answered:
PN4744
We had become aware in about September 2002.
PN4745
THE VICE PRESIDENT: This is 1645?
PN4746
MR DOUGLAS: It's in, it's in this area, your Honour, my notes have got 1645, 59 and 64.
PN4747
THE VICE PRESIDENT: It's not near 1645.
PN4748
MR DOUGLAS: Well, could I read - - -
PN4749
THE VICE PRESIDENT: 1659.
PN4750
MR DOUGLAS: 1659 is it? Yes:
PN4751
What occurred at PFS that lead you to make this report?
PN4752
She answered:
PN4753
We have become aware of about September 2002 that offers of employment within the Business Unit, Premium Financial Services were ...(reads)... employees of its subsidiary CommSec.
PN4754
Miss Gooley asked:
PN4755
You reported in February 2003 and the ballot was conducted in June 2003, why did it take so long?
PN4756
She said:
PN4757
I would have to say that it was a tyranny of the urgent hoping our intention proceed with the Federal Court proceedings in relation to PSF ...(reads)... to the issues inside the Retail Banking Services section.
PN4758
A bit further on:
PN4759
And I think it was the right decision to focus initially on the Federal Court.
PN4760
Further on:
PN4761
At the same time as undertaking some preparation work in relation.
PN4762
Now one sense it could be accepted, your Honour, that the log, service of the log may well have extended the one single impermissible dispute but that extension didn't stand alone, it was an extension - if that were so - of the one dispute and that dispute being impermissible in the sense that it was outside the Commission's jurisdiction then the service of the log was caught with that difficulty. PN 1731 and 33, still in examination of in chief, and this is a very, very important passage. The union relies on this with respect to the intent and purpose of the service of the log. I invite your Honour to look closely at the question:
PN4763
When the union sent the Letter of Demand to the companies what was it seeking to achieve?
PN4764
THE VICE PRESIDENT: You are reading from paragraph - - -
PN4765
MR DOUGLAS: 1731 I think is it, your Honour. It's a critical question and answer and it's in chief.
PN4766
THE VICE PRESIDENT: Yes.
PN4767
MR DOUGLAS:
PN4768
When the union sent the Letter of Demand what was it seeking to achieve?
PN4769
Miss Gooley:
PN4770
Ms Caddie, we are seeking to achieve terms and conditions consistent with the matters outlined in our standard log of claims, we understand ...(reads)... step is an award that goes to some of the matters in the log.
PN4771
Now that answer must be taken as a responsive answer to the question about what was the union seeking to achieve at the moment it served the letter of demand and log of claims and we say from that it's clear even though she says, "We are seeking to achieve", it's clear that the first, the immediate step was an award, the immediate step was to seek an award.
PN4772
Then further on I put this to her or Miss Gooley put this to her:
PN4773
Mr Douglas has also suggested the only target of this log of claims was CommSec, is that true?
PN4774
She answered:
PN4775
CommSec was definitely the original target of our discussions around serving of log of claims but as a result of our experience in Premium Financial Services I became concerned...
PN4776
And then further on:
PN4777
It could happen in any business unit being operated by the Commonwealth Bank so I thought that it would be responsible for the union to start to make inquiries about what subsidiaries that could be used for this purpose.
PN4778
Now these are her personal views, your Honour, it's clear that here she's talking about what she was thinking and what she was doing and this is pre the service and it's got no, it doesn't compromise what she said about what the union was seeking to achieve at the moment of the service. Continuing:
PN4779
Through the Federal Court proceedings -
PN4780
A bit further on:
PN4781
...it became clear that the Commonwealth Bank has hundreds of subsidiaries and we are concerned for the potential of any one of those ...(reads)... to try to achieve the terms and conditions in our log.
PN4782
Now, your Honour, if you look at the CBA award that award does not have terms and conditions consistent with the matters contained in standard log of claims - no doubt about that - and her answer must be read with that knowledge in mind. And at 1751 and 52, again in chief she said:
PN4783
When PFS was operationalised the Commonwealth Bank was employing employees in its part of the business and CommSec was employing people ...(reads)... and there was no cross-fertilisation occurring at all.
PN4784
A bit further on:
PN4785
What changed was that the Commonwealth Bank made a decision that it was no longer going to be the employer, that it would use its subsidiary CommSec as the employing base for the entire business unit.
PN4786
At 1761 still in chief:
PN4787
Miss Gooley, what was the FSUs response to this development?
PN4788
Caddie:
PN4789
Well, we became aware of the development because members contacted the national office.
PN4790
And that's consistent with the evidence that Grayson gave, you remember she said:
PN4791
First time this came to our attention was because members were ringing up saying that they were being asked to go across to CommSec.
PN4792
She continued:
PN4793
Unfortunately those discussions did not resolve the issues in dispute between the FSU, PFS and CommSec.
PN4794
And when she says PFS she means the Commonwealth Bank:
PN4795
And it was at that stage we decided to take action.
PN4796
And here we have the cat being strung by two processes:
PN4797
In external forums - plural - starting with the Federal Court.
PN4798
And even though she didn't then go on to say it, next with the Commission. At 1813 in cross-examination I put this point:
PN4799
Reaching a point early in February 2003 where were you, where you felt it necessary to provide the CBA with an ultimatum being that if they ...(reads)... action in the Federal Court.
PN4800
She said, "Yes". And again - - -
PN4801
THE VICE PRESIDENT: You're reading them from which one?
PN4802
MR DOUGLAS: This is 1813. Then at 1822 through to 1833 still in cross-examination she said:
PN4803
I see the Federal Court proceedings and the log proceedings -
PN4804
And the word proceedings in each case and her answer irrelevant, your Honour.
PN4805
THE VICE PRESIDENT: Sorry, this is 1830.
PN4806
MR DOUGLAS: 1822 I think it is, your Honour.
PN4807
THE VICE PRESIDENT: Yes.
PN4808
MR DOUGLAS:
PN4809
I see the Federal Court proceedings and the log proceedings as trying to achieve different things and we say different things about the one issue. ...(reads)... of employment should be applied to that group of workers.
PN4810
Now that comment is inconsistent with what she said earlier about achieving the terms and conditions consistent with the matters in the log of claims.
PN4811
The log for me -
PN4812
And this, how she's going, turning her mind from the Federal Court proceedings to the Commission proceedings:
PN4813
The log for me is about establishing new rights, it's about trying to set in place terms and conditions in CommSec originally but in other subsidiaries for any category of employee working in the finance industry.
PN4814
I said to her:
PN4815
So you are saying that the service of the log had nothing to do with the movement of employees from CBA to CommSec are you?
PN4816
She said:
PN4817
That was the action that initiated our response.
PN4818
And our response from the answer given above was the two pronged response:
PN4819
The Federal Court on the one hand, those proceedings and the other proceedings she referred to as being log proceedings. That was the ...(reads)... finance industry.
PN4820
Then speaking of the movement of the employees to CommSec she said:
PN4821
Made it clear to me that there was a subsidiary, possibly more subsidiaries of the Commonwealth Bank that may be the recipient of CBA employees that didn't have terms and conditions of employment consistent with those matters set out in a log.
PN4822
And as I've already said, your Honour, no employer covered by an FSU award has terms and conditions consistent with those matters set out in the long. You only have to look at the awards of the Commission to see that that's a true statement. She continued:
PN4823
My understanding -
PN4824
THE VICE PRESIDENT: That's hardly remarkable.
PN4825
MR DOUGLAS: No, your Honour, it's hardly remarkable but you have to read those words what she says consistent with the log of claims in relation to the question, "Is this a real dispute or not or is it about regulation, is it about an impermissible purpose?" And we say the use of those words is another supporting factor which supports the proposition we put. Anyway, she went on:
PN4826
My understanding how you achieve matters set out in our log is to send a Letter of Demand as a start of the process.
PN4827
And further on:
PN4828
What it had to do with the movement of those people was that that was the event that caused me to think about the subsidiary, CommSec, and as a consequence of that what other subsidiaries may exist.
PN4829
As I indicated earlier there was also a new generation of individual contracts proliferating the Commonwealth Bank. She wasn't talking there about the individual agreements at CommSec, she was talking about the individual agreements the Commonwealth Bank which permitted the movement of employees. That allowed CBA to transfer, second, redeploy employees under those contracts to any subsidiary or related entity of the bank which makes subsidiaries and related entities of the bank a concern.
PN4830
Then at 1842 and 1843 I put this to her:
PN4831
So whose idea was it that there should be a log of claims served?
PN4832
She said:
PN4833
It was mine.
PN4834
When did you arrive at that idea? She said:
PN4835
I arrived at that idea as part of our consideration generally about what we should do as a result of what was happening inside PFS.
PN4836
In other words, what was happening inside the CBA. At 1904 she said:
PN4837
The view I took was that potentially any of these companies ...(reads)... and in any case they were capable of having employees transferred or seconded to a related entity or subsidiary of the Commonwealth Bank.
PN4838
I go from that matter, your Honour, to deal very briefly with the ASU, FSU agreement which permitted the rule change being the inclusion of rule 5.8 in the union's rules to be included by the Commission. And this matter is referred to in C21, our submissions in chief at paragraph 39. And on page 14 I ask you to go to that very briefly, your Honour, because the terms of the agreement are set out. It states:
PN4839
The object of the rule change application is to expand the FSUs eligibility rules to cover traditionally unorganised segments of the finance industry.
PN4840
Traditionally unorganised segments, not new segments, not evolving segments, but traditional segments. 2:
PN4841
The object of the rule change application is not to disrupt existing coverage of the ASU ...(reads)... not principally in the finance industry -
PN4842
It goes on -
PN4843
and without limiting the generality of the aforesaid ...(reads)... incidental to the operation of their employer.
PN4844
Those words in that agreement, in our submission, are very, very significant in that it effectively prevents the FSU from having a dispute found with respect to this service by reason of rule 5.8.
PN4845
THE VICE PRESIDENT: That's a huge jump in there, isn't there? The entitlement of the FSU to enrol members pursuant to rule 5.8 is a function of the proper construction of rule 5.8.
PN4846
MR DOUGLAS: Yes.
PN4847
THE VICE PRESIDENT: This agreement can only impact upon that to the extent that it is a permissible item of extrinsic evidence to rely upon in construing the terms of clause 5.8. To the extent that there is ambiguity and to the extent that this is properly admissible as extrinsic evidence in the aid of construing clause 5.8, then it would induce one to adopt a narrower rather than broader construction - - -
PN4848
MR DOUGLAS: I don't put it that way, your Honour.
PN4849
THE VICE PRESIDENT: - - - but it could not be used to contradict the plain meaning of the words without ambiguity. It may ground a basis for the ASU to go back to the Commission and say, You should vary the rules to remove that change, or some other appropriate remedy, but where there's a tension between the words of the rule on its proper construction and this agreement, then subject to those issues of resolving ambiguity in favour of a narrower rather than a broader construction, the words of the rule have to prevail, do they not?
PN4850
MR DOUGLAS: There are two points to be made about that, your Honour. We don't put our primary submission in relation to it as to the pure legal effect of the words in rule 5.8. However, having said that, your Honour, this agreement, like many, many hundreds of agreements that have come forward, have been accepted by the Commission on rule changes so as to allow rule changes to go forward, must be regarded as something very significant.
PN4851
THE VICE PRESIDENT: I can imagine that this may well provide a proper basis as a matter of discretion, notwithstanding a dispute has been found, to refuse to make an award as a matter of discretion.
PN4852
MR DOUGLAS: We put it higher than that, your Honour. We say that even if these words are not to be used to interpret 5.8 down in terms of the written words in 5.8, what it does do in an operational sense is to mean that any attempt by the FSU to use 5.8 in a way which reaches this agreement would have no effect as far as the Commission is concerned. In other words, the Commission, on a dispute finding, should conclude, no, the Commission cannot find a dispute here because the union has undertaken that it will not do something in terms of a log of claims service, in other words to recruit or represent employees or, as set out in object 3, in a way which would place the FSU in a position where as if this agreement had never come into being in the first place.
PN4853
Your Honour, this is not the first time an agreement like this has been brought to the notice of the Commission in these sort of proceedings. Your Honour, if the Commission is to conclude that the only remedy - - -
PN4854
THE VICE PRESIDENT: Have you got any authorities that have raised this issue of a tension between an agreement of this sort and the subsequent rule?
PN4855
MR DOUGLAS: I'm not aware of any decision, your Honour, but I'm personally aware that these sort of agreements have been raised in proceedings previously because I've done so myself in proceedings for instance involving the CPSU. Your Honour, this agreement has a standing and it would be wrong, in our submission, for the Commission to conclude, Well, the only way this agreement can have any effective operation is by the ASU taking some proceedings to have the rule change - - -
PN4856
THE VICE PRESIDENT: No, there's the arguable position that this agreement would be a determinative factor in favour of refusing to make an award, notwithstanding a dispute finding.
PN4857
MR DOUGLAS: It may well be a section 111(1)(g) matter, but we put it to the Commission that it is something for your Honour to take into account when your Honour is determining this question of union intent and motive.
PN4858
THE VICE PRESIDENT: But we're involved in a jurisdictional exercise at the moment. Does the Commission have jurisdiction; has a dispute been generated? I'm having difficulty seeing how this agreement, apart from having an impact upon the proper construction of rule 5.8 in the fashion that I've articulated, can be otherwise relevant to the question of whether or not the Commission really has jurisdiction. Whether it exercises that jurisdiction and how it exercises it, clearly a matter like this would be relevant, but how is it relevant to a determination of whether or not the jurisdiction exists, other than the constructional sense that I've said?
PN4859
MR DOUGLAS: Because in my submission it gives the Commission capacity to say, on the facts here CommSec is one of the entities of the kind referred to in object number 3 and object number 4 and on that basis a dispute finding should not be made, because CommSec is not an entity that is principally in the finance industry. It has no impact whatsoever, your Honour, on the union's argument with respect to 5.2 and whether or not CommSec is in connection with the industry of banking.
PN4860
I didn't think there was a need, your Honour, and that's why I didn't put it in the bundle of documents, but can I just refer briefly to what Mr Jackson for the FSU said.
PN4861
THE VICE PRESIDENT: Is this the first time this agreement has been mentioned in any evidence or submission in this case?
PN4862
MR DOUGLAS: In chief in our submissions, yes. Can I just read briefly from the transcript of the proceedings where this agreement was accepted by Deputy President Acton on 21 July 1995, at page 20 of the transcript. It's not the bundle, your Honour. I didn't feel the need to put it in but I think it's appropriate that I should read this short passage of the transcript. I'll provide my friend with a copy of it and she can comment on it as she wishes in writing later if need be. Her Honour Deputy President Acton said:
PN4863
Mr Jackson, just before you go on, in regard to exhibit B4 at point 3 it says -
PN4864
And B4 was the ASU/FSU agreement:
PN4865
...it says the object of the rule change application is not to enable the FSU to recruit ...(reads)... finance industry.
PN4866
And Mr Jackson said:
PN4867
Yes, that's correct, your Honour. Just as an example Australian Financial Services ...(reads)... not in the finance industry.
PN4868
I don't need to - - -
PN4869
THE VICE PRESIDENT: That is just absurd in relation to American Express. That is patently absurd, and Diners Club. How could you say that those businesses are not in the finance industry?
PN4870
MR DOUGLAS: Well, the FSU agreed that they were not.
PN4871
THE VICE PRESIDENT: Well, someone on behalf of the FSU has asserted that in some exchange in the bench in an unrelated matter, but I am here concerned to determine what the fact is.
PN4872
MR DOUGLAS: But that not an unrelated matter, your Honour.
PN4873
THE VICE PRESIDENT: And it is an absurd - do you submit, Mr Douglas, that AMEX is not in the finance industry? Is that your submission?
PN4874
MR DOUGLAS: No it is not my submission, your Honour. I have no submission to make about AMEXs position, I don't know enough about it. But the point I'm making is that the FSU - - -
PN4875
THE VICE PRESIDENT: You are not familiar that it is a credit card company?
PN4876
MR DOUGLAS: Of course, it is, your Honour, I know, and it is in the finance industry, but the words traditionally, unorganised sections of the finance industry, that's why I went to them in the first one, your Honour. AMEX, Cab Charge, Diners, are not traditionally in that area.
PN4877
THE VICE PRESIDENT: The bottom line is that the rule change that has been incorporated confers - no matter what view of the construction you take - it confers a much broader coverage than was apparently intended by the agreement.
PN4878
MR DOUGLAS: The agreement, your Honour, is a result of the, no doubt, hard bargaining between the FSU and the ASU, and the FSU was content for the rule change to go forward with these qualifications, and one of the qualifications, and it can be seen from the record that the - - -
PN4879
THE VICE PRESIDENT: With those qualifications, as a matter of agreement between the FSU and the ASU, not with those qualifications expressed in the rule change that the ASU agreed to.
PN4880
MR DOUGLAS: No, but, your Honour, one goes with the other. The rule change would not have occurred if this agreement had not been tabled. This was the last thing holding - - -
PN4881
THE VICE PRESIDENT: Undoubtedly. We may be in furious agreement about this. It seems to me, and I am happy to hear arguments to the contrary, that this would be squarely relevant to the exercise of discretion in the event that the Commission holds that it has jurisdiction, that a dispute has been found.
PN4882
MR DOUGLAS: There is no doubt about that.
PN4883
THE VICE PRESIDENT: But whether there is jurisdiction or not, in terms of the eligibility rules, is a function of the proper construction of the eligibility rules, and the only role that this agreement could have, in relation to that, is in resolving ambiguity in favour of a narrow construction rather than a broad construction.
PN4884
MR DOUGLAS: Well, it does shed some light, your Honour, on the FSUs understanding at the time of this rule change, and that understanding needs to be taken into account. As I say - - -
PN4885
THE VICE PRESIDENT: Did you invite the ASU to come along today? Did you invite the ASU to involve itself in these proceedings?
PN4886
MR DOUGLAS: Your Honour, I was going to invite Mr Jackson along but I don't know where he is now. He long left the ASU, and the people who are in control of the ASU at the time are no longer there, and I don't know where they are, your Honour. I can't say anymore about it.
PN4887
THE VICE PRESIDENT: It certainly looks, on the face of it - on the face of it - like a bit of dirty pool on the part of the ASU in flagrant breach of the agreement.
PN4888
MR DOUGLAS: Your Honour, the records show - - -
PN4889
THE VICE PRESIDENT: But, however - - -
PN4890
MR DOUGLAS: The FSU drafted the document, not the ASU. It is on the part of the record.
PN4891
THE VICE PRESIDENT: Anyway, I understand your submission.
PN4892
MR DOUGLAS: Thank you, your Honour.
PN4893
THE VICE PRESIDENT: As you will gather, I have some difficulty with it at the moment.
PN4894
MR DOUGLAS: Your Honour, in our outline at - I'm sorry, I go down to another matter. The rule change of 4.2 and 5.11. In our submissions in chief, C21, paragraph 55, we set out a number of transcript pages where we said in the written submissions we would refer to those in oral submissions. I don't intend to do that, your Honour. I invite your Honour to look at those pages. The relevant passages will become quite apparent to you, and they are very short on most of the pages, but I do wish to go to, in that transcript, which is in the bundle, I think, at 193, and I go to page 218 of the transcript. I'm not sure what page that is in the bundle.
PN4895
THE VICE PRESIDENT: Just bear with me a moment. 193?
PN4896
MR DOUGLAS: I think it is 193, your Honour, yes.
PN4897
THE VICE PRESIDENT: Mr Douglas, do your assert it is the case that the ASU has had traditional coverage in relation to brokers, or is this an area of industry that has been award free, and coverage free?
PN4898
MR DOUGLAS: It is an area of industry that has been forever award free.
PN4899
THE VICE PRESIDENT: And free of attempts by unions to extend their industrial coverage into it?
PN4900
MR DOUGLAS: No, what I said - I'm sorry, I'll qualify that. It has been forever Federal award free. State clerical awards apply to it.
PN4901
THE VICE PRESIDENT: Yes.
PN4902
MR DOUGLAS: 165, your Honour, I think is the first transcript reference. Yes, at about line 7.
PN4903
THE VICE PRESIDENT: He is being cross-examined by Mr Douglas, I see.
PN4904
MR DOUGLAS: Yes. The passage is:
PN4905
You continue to say, as I understand it ...(reads)... on the CBA account?
PN4906
And he said:
PN4907
Yes, it would be similar work.
PN4908
And then at - this is in relation to the EDS contact, the outsourcing of all of the CBAs information technology functions. At page 220, two pages further on, at about line 13 - - -
PN4909
THE VICE PRESIDENT: That is 167 in the bundle?
PN4910
MR DOUGLAS: Yes:
PN4911
It is significant from the FSUs point of view ...(reads)... is that correct?---Yes.
PN4912
In the next passage, and there are only two more, and it's on the next page about the middle:
PN4913
So the addition to the representation aspect of the section 118A application involved two elements, as I understand what you're saying ...(reads)... ?---Yes.
PN4914
The final one is over the page at the top:
PN4915
But from the arrangement the FSU might enter into with the SDA and ASU aside from those arrangements with the ASU and APESMA ...(reads)... to FSU coverage.
PN4916
Then at line 14 - - -
PN4917
MS GOOLEY: Your Honour, I fail to see the relevance of Mr Douglas reading to us from this transcript.
PN4918
THE VICE PRESIDENT: This is a submission, Ms Gooley.
PN4919
MS GOOLEY: Yes, I know, but these documents were only admitted to the extent that they were relevant and we submit that they're not relevant to any of the matters that are before you.
PN4920
THE VICE PRESIDENT: I would rather hear Mr Douglas and have your submissions on relevance in reply.
PN4921
MR DOUGLAS: There's only one more sentence, your Honour, line 14:
PN4922
But is there a limit or restriction in terms of the type of service that an entity could be providing to the CBA to activate this rule?---No.
PN4923
THE VICE PRESIDENT: I, like Ms Gooley, am waiting with bated breath to hear how you make this relevant.
PN4924
MR DOUGLAS: Your Honour, this is just part of the history and it goes - if you look at the other documents that are in the bundle relevant to this, for instance, the FSUs submission and those other transcript references, having previously looked at what the union said in the proceedings before Deputy President Maher in 1995; that's the start of this, and from that moment onwards the union in proceedings in the Commission continued to play the same tune that was concerned about the CBA outsourcing activities to subsidiaries and that it wanted to have some control over it.
PN4925
Those sort of things were said before Deputy President Maher, they were said in this proceeding as the reason why this rule change should be given to - - -
PN4926
THE VICE PRESIDENT: So it's sort of similar fact evidence?
PN4927
MR DOUGLAS: Similar fact evidence, the same sort of things that were articulated by Caddie in the evidence that I've referred to and other evidence that's currently before the Commission. I don't take the Commission any further on that matter.
PN4928
Your Honour, we have made the point as to fancifulness in our submissions in relation to SPSF and I want to expand briefly on what is said in the submissions in reply which are C24 on pages 45 and 46. I do this in two ways; firstly, by referring to a decision given recently on 16 September by Commissioner Bacon in relation to Arly Coal and to deal with the SPSF situation.
PN4929
I informed Ms Gooley this morning that I intended to refer to this decision; it's not in our bundle, your Honour, and could I provide you with a copy. I have no objection to Ms Gooley replying to the submissions we put in relation to this decision in writing when she replies to other matters in writing by the end of next week. Can we provide that to your Honour.
PN4930
THE VICE PRESIDENT: Yes.
PN4931
MR DOUGLAS: Could I begin by saying in my submission this decision is correct as to the matters of law dealt with and on a personal note could I say that it's been a very long time coming and, in a sense, gives a courageous lead to a more sensible approach to paper dispute creation in this country. At paragraph 1 the Commissioner said, and this is on 16 September, and it's after the filing of our submissions in chief:
PN4932
APESMA has served a log of claims on a number of employers and other entities who claim not to be employers.
PN4933
Paragraph 2:
PN4934
APESMA makes application to the Commission under section 111 to determine that an industrial dispute exists.
PN4935
Paragraph 4:
PN4936
A number of employers submit that an industrial dispute does not exist. The submissions of the employers are that a significant number ...(reads)... by an employer.
PN4937
Just pausing there, your Honour, we know that the High Court has said that the claims must be intelligible; I think that was the professional engineers case, and that the claims must be capable of acceptance or rejection by the recipient. The second dot point:
PN4938
The claim is not genuine because it is fanciful.
PN4939
Thirdly:
PN4940
The claim is not connected with the relationship between an employer and employee.
PN4941
That's the Electrolux concept. Paragraph 5:
PN4942
Objections were taken against more than 60 of the 87 claims in the log.
PN4943
In the middle of that paragraph:
PN4944
It is submitted by the employers that any claim that falls into one of the above categories cannot give rise to industrial dispute ...(reads)... not find an industrial dispute.
PN4945
He then deals with the question of whether the log is clear or not and goes through various elements of it and I take you to paragraph 18 as an example:
PN4946
Claim 14 is said to be ambiguous because it requires that employees who are under 21 years of age in certain circumstances ...(reads)... claim is a nonsense.
PN4947
Paragraph 31 under the heading Claims are Fanciful:
PN4948
The employers submit that some of the claims made by APESMA are so extravagant or fanciful that even allowing for the ambit doctrine ...(reads)... industrial dispute.
PN4949
There I think, your Honour, that in relation to Electrolux not possible but certainly we would say. Paragraph 33:
PN4950
The Commission must also have regard to the fact that it is not a genuine regulatory body ...(reads)... of preventing and settling industrial disputes.
PN4951
This was discussed in SPSF. Paragraph 41:
PN4952
The Commission now turns to consider whether the various claims identified by the employers are so extravagant and/or fanciful that they are not likely to be achieved in the foreseeable future allowing for the doctrine of ambit.
PN4953
And I ask your Honour to keep in mind Ms Caddie's piece of string answer, as long as a piece of string:
PN4954
It is necessary to consider each claim individually and that will be done ...(reads)... made in relation to wages and allowances.
PN4955
Claims 3 and 8 are wages and allowances. In paragraph 44 he sets out in a table the various claims that were made amounting to per weekly wage levels at level 1 of $9460 and level 5, $13,310 per week. Paragraph 45:
PN4956
The claim for $5000 per week as a minimum bonus is clearly fanciful, the claim is so extravagant and unrealistic ...(reads)... such a claim is not achievable in the foreseeable future.
PN4957
Paragraph 46, the last three lines:
PN4958
The claim for allowances of $2100 per week to be paid simply on the fact of employment is fanciful, it is artificial and unrealistic. On the most generous assessment and allowing for ambit the claim is not achievable in the foreseeable future.
PN4959
Then going down - - -
PN4960
THE VICE PRESIDENT: You were just reading from 46?
PN4961
MR DOUGLAS: That's paragraph 47, the last four lines your Honour. Then in 48 he sets out the various allowance claims and says in 49:
PN4962
Each of the claims is fanciful and unrealistic, accordingly none of the claims can give rise to an industrial dispute.
PN4963
Paragraph 50:
PN4964
The Commission has reached the same conclusion in relation to the claim for minimum wages ...(reads)... a raft of penalty and other payments.
PN4965
It has some similarity your Honour when one looks at the log here, the wage claim, some similarity to that in the sense that the wage that is claimed is minimum but the escalation factor of 20 per cent per year is not directed to the minimum salaries, it's directed to salaries, a point that the Commissioner dealt with here. Paragraph 52:
PN4966
The claim must be measured against minimum wages in order to determine whether it is achievable ...(reads)... salary which includes other payments.
PN4967
54:
PN4968
It is the Commission's view that the minimum wages and allowances claims whether considered individually or collectively are fanciful and are not genuinely being demanded ...(reads)... rise to industrial dispute.
PN4969
Now I can go on but I go, and rather than read the whole of this decision, I go from there to the last two paragraphs, the conclusion, 128:
PN4970
There is a significant number of matters, claims in the log which the Commission could not include in any dispute finding ...(reads)... does not consider that the alleged industrial dispute is an industrial dispute.
PN4971
Now with that in mind I go to SPSF. We submit that the wage claim in the log which has to be read with the hours of work claim is fanciful and that the log as a whole therefore cannot give rise to a dispute finding. It goes without saying your Honour that such fancifulness is placed beyond sensible argument to the contrary we would suggest if other matters in the log are added to the mix, matters such as staggered working hours and shift work.
PN4972
The wage claim in SPSF, the High Court said as to that claim at page 269 of the decision:
PN4973
There are features in the log of claims which indicate that its demand if read according to its terms is in truth fanciful ...(reads)... than the one that emerges from a strict reading of its demand.
PN4974
You will notice that the High Court is referring to the demand as the collective of the claims in the log:
PN4975
It's reasonable to assume that SPSF claim is for increased wages and allowances as determined by the Commission ...(reads)... gives rise to industrial dispute.
PN4976
Then we know what the High Court said about that. Can I take you then to the documents in the second bundle where we deal with the nature of the wage claim in this log.
PN4977
THE VICE PRESIDENT: The second bundle being?
PN4978
MR DOUGLAS: C22 your Honour.
PN4979
THE VICE PRESIDENT: Yes.
PN4980
MR DOUGLAS: I firstly ask you to go to the log itself which begins in a substantive way at page 75 in that bundle. Now this is aside from what we say your Honour about Electrolux.
PN4981
THE VICE PRESIDENT: Yes, I understand that.
PN4982
MR DOUGLAS: The salaries claim, 4A:
PN4983
The minimum rate of salary to be paid per annum by respondents bound by this award ...(reads)... shall range from $100,000 to $250,000.
PN4984
Now if it ended there, there might be something in the argument that that claim is within the scope of the doctrine of ambit but you can't read the first - - -
PN4985
THE VICE PRESIDENT: Striking out is a striking out that's been added by your solicitors?
PN4986
MR DOUGLAS: We've done that and I will come to this submission later on your Honour. All the passages that are struck out, all the passages that are struck out we say go because of Electrolux, they don't pertain the employment relationship. They're not struck out because they're fanciful. If you flip through the pages quickly your Honour you will see that we do have a significant argument in relation to that but it any event coming back to 4A, what I am saying is that if it stopped at 250,000 then there might be something in the argument that that fell within the doctrine of ambit on the basis of Ms Caddie's piece of string but the demand was that this clause and all the others be agreed to within seven days and the second part of the wage claim was each employee's salary shall be increased by 20 per cent each year at a time specified by the union.
PN4987
Now that with the former, forget the Electrolux problem that's inherent in 4A because of the words in that second sentence, because one is dependent on the other. But putting that aside, there can be no doubt and if you look at the charts that we have attached, that we have in the bundle, there can be no doubt that the immediate agreeing to that claim within seven days would give rise to the financial wages of the kind set out in our documents which are attached that the employer is being asked to agree to.
PN4988
I mean the employer is being asked to agree to for employees who are on the $100,000 a year, agree that those employees be paid just in terms of their salaries alone, over half a million dollars a year in ten years. Now, that's what was being asked of CommSec to agree to in that seven day period. But when you add the other factors in, your Honour, and I come to those in the log, if you go then, and forget about the classifications and the striking out of that and what may flow from that if the first part of 4A is left in, doesn't that further fit SPSF on the basis that the salary claim is then made by reference to the employees without any regard to their work, but that's an argument, your Honour, or a matter that will never need to be addressed by the Commission because the whole of this log must go because of Electrolux.
PN4989
Can I take you then to page 78, hours of work:
PN4990
The ordinary hours of duty of employees shall not exceed 30 a week, exclusive meal hours and shall be worked between the hours 10.00 am and 4.00 pm, Mondays to Friday both inclusive.
PN4991
Now, one would expect that an organisation like CommSec would have to operate, say, at least from nine in the morning until five in the afternoon, much less than probably what it does now, but it would have to keep normal business hours. The second part of claim 5:
PN4992
The ordinary hours of duty for each employee shall be determined by the union.
PN4993
Then if we go to overtime, your Honour, 8A:
PN4994
All time worked by direction in excess in excess of 20 hours whether within the spread of hours or not shall be paid at the rate of double time for the first two hours and triple time thereafter.
PN4995
Now, just stopping there, on that basis the person who is on $100,000 today or at the time the log was served, it was being sought of CommSec that it agree, within the seven day period, that those people not only be paid over a half a million dollars at the end of year ten, but that, in fact, the remuneration of those employees would be significantly higher because of the overtime provision. You only have to add in that factor.
PN4996
For instance, the $100,000 person right now, working 35 hours a week, would be paid $209,000 per annum. That's the escalation factor as a result of the hours and overtime claim without paying regard to the 20 percent escalation factor that occurs year by year. A person who is on $250,000 per annum at the time the log was served or now, would immediately be on $524,160 per annum because of the overtime and hours of work factor.
PN4997
Now, in our submission, it must be absolutely clear on that basis, when you take into account the sort of considerations that the High Court referred to in SPSF that the wages, hours of work and overtime claims are fanciful and certainly if they'd been looked at by Commissioner Bacon he would have come to exactly that conclusion. So, in our submission, that together with other things that we say about this log, provides a very serious problem for the union.
PN4998
Now, could I go from that to the question of the intent - - -
PN4999
THE VICE PRESIDENT: And you say it's impermissible to, taking clause 4A for example, it's impermissible to treat that in substance as two separate claims, one as a claim for a wage rate, another is for the rate at which it increases.
PN5000
MR DOUGLAS: Absolutely.
PN5001
THE VICE PRESIDENT: And then to simply disregard the second - - -
PN5002
MR DOUGLAS: You can't disregard the second, that wasn't a claim that was put, that would be some other claim. In fact, that would be a claim that wasn't authorised. It can't be divorced. Anyway, let me come to this question of the union's intent at the time of the service. In our submissions in reply - - -
PN5003
THE VICE PRESIDENT: Mr Douglas, there's little prospect that we're going to finish these oral submissions today, is there, certainly not with an opportunity for Ms Gooley to reply?
PN5004
MR DOUGLAS: I will only take another ten minutes or so, your Honour.
PN5005
THE VICE PRESIDENT: Fine, away you go.
PN5006
MR DOUGLAS: At paragraph 61 page 21 of our C24, we say in the second part of paragraph 61:
PN5007
The evidence of Ms Caddie as a member of the National Executive of the FSU ...(reads)... Ms Grayson in Federal Court proceedings are others.
PN5008
THE VICE PRESIDENT: Which paragraph, sorry?
PN5009
MR DOUGLAS: This is paragraph 61. I just wanted to read that by way of background, your Honour. We say that an examination of the log itself, what is in the demand, as it came forward through his collective of the claims in the log, what the Commission sees in that demand is a relevant factor in determining whether or not the intent or the purpose was a permissible one. We also in the same submissions, your Honour, paragraph 68 on page 23, we say:
PN5010
The resolution of the FSU National Executive exhibit 4 clearly establishes the ...(reads)... improving terms and conditions.
PN5011
And so on. I would just like to put what's in that submission, your Honour, and it goes to the heart of that question and answer at 1731 which I've already taken the Commission to today. I'd like to put that in a more satisfactory way. So the Commission should disregard the opening words in paragraph 68 and replace them with what I now have to say.
PN5012
You remember it was said that a dispute would arise if the sole or immediate purpose, and I think this was McHugh J, wasn't a permissible one and I'll come to that in a moment. Now, it was on 23 March 2003, your Honour, that the FSU resolved to do two things and I suggest and submit, very strongly, that the Commission can do no other than in relation to that resolution, what the National Executive did on 23 March than read what it did literally.
PN5013
One cannot add to or subtract from what the national executive did or to give a colour to what the national executive did. It is not permissible by the wording. It resolved to do two things, your Honour, that is to say the union resolved to do two things. To serve its standard letter of demand and to serve its standard log of claims. That is what it resolved to do. It resolved to do that because it, the union, through its national executive had three concerns. Those three concerns are expressed in the middle paragraph of the relevant minute.
PN5014
They were the three concerns articulated by the national executive they must therefore be regarded as three concerns of the union. Those three concerns are not a resolution in themselves. They are not a resolution for action. When you read that middle paragraph it will be noticed that priority was not given to one concern over another. They were, and are, three concerns of equal standing. The first recorded concern was to improve the employees' terms and conditions. The second recorded concern was to represent the employees' industrial interests. The third recorded concern was to obtain an award. Because priority was not given to any one of those concerns over another they could have been expressed in the opposite order that they were. That is to say the first concern could have been expressed as to obtaining an award. The second concern could have been expressed as to representation of employees and the third concern could have been expressed as to improving employees' terms and conditions.
PN5015
But we must deal with them as they are and I repeat, your Honour, that that middle paragraph is not a resolution for action. It is simply a statement of justification for the resolution of action which is in the first paragraph. It's important to note that the national executive, and therefore the union, did not resolve to pursue or to persist in the demand as evidenced by the collective of the claims in the log. There's is no resolution to that effect. The statement of concern, it would be a misreading of the statement of concern to conclude that that was a resolution to persist or pursue that demand.
PN5016
In Cohen Gibbs CJ says as page 337:
PN5017
If the log is not seriously propounded as a demand on which the union ...(reads)... a real dispute.
PN5018
And at 338:
PN5019
In deciding whether the demands are genuine it is relevant to inquire whether the union actively persisted in pressing them.
PN5020
Now your Honour, there has to be authority to do that. There has to be a resolution of action to sincerely propound, or persist, in demands. It is not good enough to rely on the - - -
PN5021
THE VICE PRESIDENT: That's a matter of fact, isn't it?
PN5022
MR DOUGLAS: Yes, your Honour.
PN5023
THE VICE PRESIDENT: Sorry, whether it persisted and pursued the demands propounded is a matter of fact and a further resolution of an executive is only way that that might be established surely?
PN5024
MR DOUGLAS: Yes, I agree with that your Honour, but the only material that we really have about this is this minute and Caddie's evidence of what the intent of the union was when the log was sent and she says as a first step to obtain an award. Now the three concerns write down any attempt that might be derived from the resolution that the union was intent upon insisting on the claims in the log, because any such conclusion is compromised by the expression of those concerns, to improve, to represent and to have an award.
PN5025
In SBSF Mason CJ, Deane and Gaudron JJ at 267, 268 said this:
PN5026
To ascertain whether demands are genuine it is sometimes asked whether ...(reads)... claims made.
PN5027
Those words, of course, came from Ludeke J. McHugh J said at 304:
PN5028
A dispute is not genuine if the sole or immediate purpose in serving the ...(reads)... in the log.
PN5029
In other words, your Honour, if the immediate purpose is to obtain regulation, doesn't matter if there is a secondary purpose, providing if the immediate purpose is to achieve regulation, then a dispute won't arise. Meaning, of course, that if the immediate purpose is to obtain an award and then have the conditions approved that would not give rise to a dispute.
PN5030
Fundamentally your Honour, the union's argument as to genuineness relies on that middle paragraph in the minute as to the resolution and Caddie's evidence at 1731 through to 1733. We submit your Honour that Caddie's evidence also at 1822 to 1829, 1864, 1941 and 1950 to 54 do not support a dispute finding.
PN5031
Now your Honour could I then go to the last point I want to make and it relates to Electrolux. I don't make any further submissions about what is said in that case. It is all in our written submissions. But in summary form your Honour if you go to the log of claims with the lines through it which is in C22. 4(a) goes your Honour for the reasons that I've put. The last sentence definitely is without a shadow of a doubt fits within the Electrolux concept and the whole of 4(a) goes because one part is dependent on the other. The whole of (b) goes your Honour because of the requirement that the CommSec agree to the involvement of the union. That's about regulation by the union. The whole of (c) goes, so that the whole of the clause in relation to classifications and procedures relevant thereto goes, it offends Electrolux.
PN5032
Elsewhere your Honour you will notice that in some clauses we've drawn a line through some sections and not others. We have done that on the basis that parts can stand and other parts cannot stand because of Electrolux. At the end of the day, on that basis, - - -
PN5033
THE VICE PRESIDENT: Mr Douglas, Electrolux didn't change the law, did it? Electrolux merely, so far as the certification of agreements is concerned, restored the status quo ante with one critical qualification, namely that there's no distinction between the dispute context and the agreement context, and that was relevant in terms of Atlas Steel saying that deduction of union dues was a pertaining matter in the agreement context, but there's been a hundred years or thereabouts of industrial regulation without the High Court ever adopting the approach that you've suggested, hasn't there?
PN5034
MR DOUGLAS: Yes, but what has changed - there is new law in it, your Honour, in the opinion of one of the justices with respect to managerial matters that seems to significantly further than what has been held by the High Court before as being a non permissible area as far as jurisdiction is concerned.
PN5035
THE VICE PRESIDENT: You mean a return to the views of Barwick CJ?
PN5036
MR DOUGLAS: There's every indication of that.
PN5037
THE VICE PRESIDENT: Well, you can't - it's a simply impossible exercise to reconcile the High Court authorities on managerial authority. They reflect the evolving opinions and attitudes and not doubt the idiosyncrasies of individual judges.
PN5038
MR DOUGLAS: Your Honour, I wish I hadn't made the comment. It's not relevant to this case. Your Honour, yes, it's true that non pertaining matters, subject to the wording of the legislation it's changed from time to time, but non pertaining matters in that generic sense have always been beyond the jurisdiction of the Commission, and a decision such as the decision of Commissioner Bacon could have been made at any time.
PN5039
THE VICE PRESIDENT: I must say I have a fundamental difficulty with - I say this with recognition of the relatively lowly place that I hold in the hierarchy here - I have a view that there's a fundamental problem with Alcan and Portus which was not an aspect that was ever argued in front of the High Court apparently - having read the transcript I can say that with some confidence - that they proceed upon an unarticulated major premise, an unarticulated major premise; namely, that a matter must pertain to one or other of relationships but not both, or more than two.
PN5040
It just seems rather ludicrous and impractical to suggest that when you've got a group of workers approach their employer and say, Well, now, you've got to pay us our wage and we want you to pay it in this way, so much to my superannuation fund, so much to my medical fund, so much to my bank to repay my loan and so much to my union to pay my union dues, to suggest that that isn't also a matter that pertains to the relationship between the employer and employee, even though it might also be characterised as pertaining to some other relationship, is just a very fanciful and unrealistic view of things. As things stand, though, Alcan and Portus are good law and therefore I will give effect to them, faithful to the rationale.
PN5041
MR DOUGLAS: Your Honour, my recollection is, and I appeared for the ANZ Bank in the Portus' case, it was argued that way, before the Commission at least. I wasn't in the High Court proceedings but it was argued - - -
PN5042
THE VICE PRESIDENT: It wasn't argued before the Electrolux bench in that fashion.
PN5043
MR DOUGLAS: It may not have been and probably the transcript of the Commission proceedings doesn't exist any more. In any event, your Honour, what Electrolux does though is the way in which the court - - -
PN5044
THE VICE PRESIDENT: It brings the focus back onto the need for each element of an agreement or you would say a claim to be about a matter that pertains.
PN5045
MR DOUGLAS: Yes, and that's why that leads me to this final submission, your Honour. When you look at the words that we strike out, and some of them are clearly non pertaining, others it might be arguable, but the significant matters in this log cannot stand the test. They must go, on any basis. In our submission, the demand that is the log, the collective of the claims, was a demand that CommSec agree to each and every claim in the log, and that demand, your Honour, in our submission, was one that could not be either agreed to or not agreed to by CommSec in terms of jurisdiction creation.
PN5046
Saying no might have created some dispute that can't be handled by the Commission, but we're talking about section 4, defined disputes. The collective of the claims on that basis, when you look at what we've drawn lines through, was a demand that couldn't be agreed to or not agreed to by CommSec. It was not open to CommSec to agree to or not agree to the pertaining matters and to ignore the non pertaining matters, because that wasn't the demand. Even if it could go through that exercise, that wasn't the demand, your Honour.
PN5047
Further, for CommSec to agree to the pertaining matters and to ignore the non pertaining matters was not a matter that was - would not have been consistent with the FSUs resolution if you regard the resolution as being one to pursue all of the demands in the log. That wasn't the thing that was authorised. There was no authorisation to permit CommSec to agree to those parts that it saw as being permissible.
PN5048
On that basis and for the sort of reasoning that can be seen in the Bacon decision and because of what's in Electrolux, we say that the log must be struck down. In fact, if you started from that end of the case and looked at that, then in my submission your Honour will come to the conclusion that you don't have to make any determination about eligibility or any other matters because there is no dispute on the basis of that.
PN5049
THE VICE PRESIDENT: Except that the underlying problem is not going to go away, and even if you're right, there's utility in determining those other matters because if I'm ultimately persuaded to the view that the union should succeed on those matters, then dealing with the problems in the log is a very straightforward matter. Your client would be served with a fresh log that was confined to pertaining matters, assuming your Electrolux argument is right and it didn't have the particular features that would render it fanciful if you were right, and we would be back here in double quick time.
PN5050
MR DOUGLAS: You never know about that. I don't ask your Honour to decide it that way. Because of the way the case is being put we would ask your Honour to decide all issues.
PN5051
THE VICE PRESIDENT: In fact, I would imagine that would happen even before the appeal is resolved.
PN5052
MR DOUGLAS: Yes, your Honour. I thank you for your time.
PN5053
THE VICE PRESIDENT: Can I just ask this last question about Electrolux. Isn't the very strict and indeed maybe perhaps draconian approach that's taken by the majority in relation to matters pertaining in relation to agreements driven by the statutory construction of 170LI?
PN5054
In other words, you cannot have a valid application unless there is an agreement about those matters, and that's a very different thing from determining whether or not the service of a log of claims gives rise to a dispute, or doesn't as the case may be, because the claim which has 70 items has two or three or four or five which are not pertaining. In other words, section 170LI represents the point of distinction between the significance of the existence of non pertaining matters in the agreements as against the existence of non pertaining matters in a log of claims because there is no provision in the Act that says a log is invalid unless it's about matters that pertain to the relationship.
PN5055
MR DOUGLAS: The first argument we put is that we say that what the members of the High Court said about LI applies equally to the dispute finding exercise and the area in that, in a sense, is new and if you've got a non-pertaining matter then you've got a problem with dispute finding.
PN5056
THE VICE PRESIDENT: That's right because of the definition of dispute in the Act.
PN5057
MR DOUGLAS: That's one argument but the secondary or alternative argument is if that's not correct then maybe if you've got one offending matter in a log of claims that's got 50 claims then you strike that out, you blue pencil it, but where - - -
PN5058
THE VICE PRESIDENT: I understand your argument that there's so much that offends that principle here that you couldn't conceivably let the balance through.
PN5059
MR DOUGLAS: That means that the log goes as a whole because then it turns out - - -
PN5060
THE VICE PRESIDENT: A la the Bacon approach.
PN5061
MR DOUGLAS: Yes, it turns out to be a claim that was never made. You can't blue pencil that. Your Honour, our submissions are there and we invite your Honour to look at paragraph 162 of the decision where they refer to the definition of industrial dispute in section 4. Maybe your Honour is correct when you said earlier in the day that you mightn't be the final decider of these matters anyway.
PN5062
THE VICE PRESIDENT: I am absolutely sure about that. Ms Gooley, there isn't sufficient time for you to deal with the matters that you need to deal with. Without hearing your complaint I would foreshadow that there is a complaint there that you have had substantial matters dropped on you, as it were, at the eleventh hour that could have been raised at an earlier time including, for example, the material about the agreement with the ASU. How do you wish to deal with it? Do you want a further opportunity for oral submissions or do you want to deal with it all in writing or do you want to do so much as you can now and then do the balance in writing?
PN5063
MS GOOLEY: I would prefer not to split it, your Honour. Could I just discuss this with my instructor?
PN5064
THE VICE PRESIDENT: Yes. Can I say I have not before today looked at the log closely at all. I had literally glanced at it and it does seem to me that there is merit in what Mr Douglas submits about the fanciful point in relation to the last part of clause 4. That's to flag for your benefit - - -
PN5065
MS GOOLEY: Yes, I understand that, your Honour.
PN5066
THE VICE PRESIDENT: - - - so that you can focus your submissions appropriately that it seems to me there is some real substance in that.
PN5067
MS GOOLEY: I think my friend is quite right when he said that Commissioner Bacon's decision was courageous; courageous in that sense that it goes against all current authority in relation to these matters but I think I need to address that in my submissions.
PN5068
THE VICE PRESIDENT: Commissioner Bacon has got a very good track record.
PN5069
MS GOOLEY: But remember the High Court in SPSF also considered the ETU log and the ETU log was - - -
PN5070
THE VICE PRESIDENT: Let's not argue it now because it's a substantive point and you obviously need to be able to put it in an orderly fashion.
PN5071
MS GOOLEY: Yes, I think that the best approach is to reply in writing, your Honour.
PN5072
THE VICE PRESIDENT: Can I leave it on this basis that if you wish to have an opportunity for further oral submissions contact my associate and a date can be arranged before too long.
PN5073
MS GOOLEY: Might I say, your Honour, that I had anticipated the week in terms of just replying in relation to Electrolux. I will probably need greater time if I am going to respond in general particularly given the hideous pace that Electrolux is going to take just to - - -
PN5074
THE VICE PRESIDENT: It would be a very strange thing if the decision in Electrolux which purports, on its face, to be a re-affirmation of conventional principles leads to the outcome that Mr Douglas contends for but at first blush it's not as though the argument is without logical coherence.
PN5075
MS GOOLEY: Except that what the High Court didn't do was to overturn a hundred years of jurisprudence about matters pertaining and what it didn't do, your Honour, was entitle people to go through and wipe out the reference to union throughout matters and say, matters about unions don't pertain. I think it was as early as the 1920s the High Court said, right of entry pertain to the relationship of employer and employee.
PN5076
THE VICE PRESIDENT: Higgins J in dissent.
PN5077
MR DOUGLAS: That's right, your Honour.
PN5078
MS GOOLEY: No, there were two other judges that agreed with him.
PN5079
THE VICE PRESIDENT: I think Moranbah is the most recent statement of the Full Bench here that says that it doesn't pertain but - - -
PN5080
MS GOOLEY: Right of entry has been in awards for over a hundred years.
PN5081
MR DOUGLAS: One man buses.
PN5082
THE VICE PRESIDENT: You're just simply underscoring the distinction between awards and agreements at the moment.
PN5083
MS GOOLEY: Absolutely. Absolutely there is a difference between awards and agreements as a result of what - - -
PN5084
THE VICE PRESIDENT: I think they get into awards on the basis that they are ancillary or incidental.
PN5085
MS GOOLEY: To the settlement of the dispute.
PN5086
THE VICE PRESIDENT: Yes.
PN5087
MS GOOLEY: That is where in fact in some ways the High Court's lack of distinction division 3 and division 2 agreements actually doesn't make sense.
PN5088
THE VICE PRESIDENT: To the extent that it assist you I'm less troubled by the submissions in relation to eligibility than I am about these aspects of genuineness that have been raised.
PN5089
MS GOOLEY: Fanciful and - yes.
PN5090
THE VICE PRESIDENT: Save in relation to the impact of the agreement but my provisional view on that is as I expressed it in exchanges with Mr Douglas but that may have a relevance in the proper construction of the relevant rules to the extent that there's ambiguity and one is faced with a choice between a narrow construction or a broad construction but they cannot be used to contradict the plain meaning of words.
PN5091
We will adjourn at this point then and you would like - can I suggest that you don't put yourself under undue pressure.
PN5092
MS GOOLEY: A month?
PN5093
THE VICE PRESIDENT: A month. A fortnight for reply?
PN5094
MR DOUGLAS: Yes. Could we, if we deem it appropriate to have a short hearing, your Honour, have that right as well?
PN5095
THE VICE PRESIDENT: I am just - - -
PN5096
MR DOUGLAS: If we could have the right to ask for it?
PN5097
THE VICE PRESIDENT: Certainly, you can always ask. I am just conscious that - please don't interpret this as a criticism, it's a question of tactics no doubt - there have been significant matters that have been - you have kept your powder dry in appropriately tactical fashion. I would be proud to have done it myself in that fashion if I was counsel and you've scored a couple of tactical points but Ms Gooley will no doubt be able to - yes, well, I probably don't need to go there.
PN5098
Suffice it to say I think it's the union that faces the disadvantage at the moment rather than your side but I'm more than happy to receive a request, Mr Douglas, in the event that you think it's necessary.
PN5099
MR DOUGLAS: It will only be in relation to what the union puts in, your Honour.
PN5100
THE VICE PRESIDENT: Yes. I suppose I will formally reserve my decision at the moment subject to further submissions and any potential further argument in the event that there is a need for further argument.
ADJOURNED INDEFINITELY [3.30pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
EXHIBIT #C21 SUBMISSIONS OF RESPONDENT FILED 01/09/2004 PN4268
EXHIBIT #C22 VOLUME I PN4361
EXHIBIT #C23 VOLUME II OF MATERIALS IN SUPPORT OF RESPONDENT'S SUBMISSIONS IN REPLY PN4362
EXHIBIT #C24 SUBMISSIONS IN REPLY PN4368
EXHIBIT #F19 EZY BANK FINANCIAL SERVICES GUIDE PN4373
EXHIBIT #F20 SUBMISSIONS OF THE APPLICANT PN4374
EXHIBIT #F21 ATTACHMENT B PN4375
EXHIBIT #F22 ATTACHMENT C PN4382
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