AG2004/6961, Transcript of Proceedings [2004] AIRCTrans 4042 (19 October 2004)

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TRANSCRIPT OF PROCEEDINGS


O/N 8679
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

VICE PRESIDENT ROSS

AG2004/6961

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the
Act for certification of an agreement -
KL Ballantyne and National Union of
Workers (Laverton site) Agreement 2004

MELBOURNE

10.00 AM, FRIDAY, 8 OCTOBER 2004

Continued from 4.10.04

PN504

THE VICE PRESIDENT: Any changes to the appearances?

PN505

MR C. HARRIS: Yes, thank you, your Honour. Continuing my appearance for ACCI. With me this morning is MS K. QUAYLE. As you might have noticed Mr Barklamb is not with us this morning. If the Commission pleases.

PN506

THE VICE PRESIDENT: How is your leg, Mr Harris?

PN507

MR HARRIS: Thank you, your Honour. It is still a bit sore but I think I have - - -

PN508

THE VICE PRESIDENT: It might be easiest if you just retain your seat rather than getting up when you - - -

PN509

MR HARRIS: Thank you very much, your Honour. I might do that.

PN510

THE VICE PRESIDENT: Okay. Just before we get under way there is just a housekeeping matter. I don't think I marked - not that in the scheme of things it is that significant - but I don't think I have marked the submissions of the parties and the interveners. So I might do that now.

EXHIBIT #NUW1 SUBMISSIONS

EXHIBIT #NUW2 SUBMISSION IN REPLY

EXHIBIT #ACTU1 SUBMISSION

EXHIBIT #AIG1 SUBMISSION

EXHIBIT #ACCI1 SUBMISSION

EXHIBIT #ACCI2 SUPPLEMENTARY SUBMISSION

PN511

THE VICE PRESIDENT: Just before I go to some questions in relation to that supplementary submission, there is a question I had for you, Mr Watson, arising out of what you put on Monday. The question goes to the - what is, as I understand it, the agreed proposition between the parties that to come within section 170LI each provision of an agreement must pertain to the relationship between the employer and the employees or be ancillary or incidental to a provision that pertains or be a machinery provision. I want to focus for the moment on the ancillary or incidental aspect of that broad proposition. In your argument, as I understand it, you rely on the authorities which deal with the meaning of the expression:

PN512

...matters pertaining to the relationship between employers and employees in the context of an industrial dispute.

PN513

And you say that those cases should be applied in the context of section 170LI when I am construing the expression in that context. In the cases upon which you rely, does the court set out the basis for its interpretation of the expression "matters pertaining" such that it includes claims which are incidental or ancillary to such matters?

PN514

MR WATSON: This is a matter I had intended to go to a little bit in reply to the ACCI submission, although they - - -

PN515

THE VICE PRESIDENT: I am content for you to deal with it in that context if it makes it easier.

PN516

MR WATSON: They perhaps put it a little - the questions that arise from their submission are perhaps a little different to those which arise from your Honour's question. Without traversing all of that ground now, and because I will traverse it later, I think there are really probably about three key propositions in answer to your Honour's question. The first is that the approach which applies the learning in the award context to the provisions of section 170LI is one which is derived from the decisions in Electrolux itself from each of the majority judgments, and it is a matter that they all emphasise that, there having been a body of authority established in the award making context about that issue, it is appropriate - indeed, they go even further than that, they say Parliament having enacted a phrase in what they regard as relevantly identical terms, it is hardly likely to have thought it should have a different meaning.

PN517

That then leads you to consider: well, in the award making context where issues of incidental, ancillary and machinery have been considered, have they been considered just, say, in the constitutional context or just, say, in the ambit context; or have they been considered in relation to the question of pertaining to the relationship. And that is why, in our submission, Spicer and Shell are particularly cogent authorities because they both - whilst we would contend that the principles that are derived, whether it is constitutional relationship or ambit, all are relevantly the same in terms of the approach one takes. Why Spicer and Shell are good for the purposes of this case is that they are directly on point about the nature of relationship.

PN518

And the final point which is perhaps the matter I would elaborate a little more in relation to some of the ACCI arguments is that when one looks at the constitutional cases, it is evident that the words "with respect to" which are the words which his Honour, Menzies J I think used in Portus' case, the words "with respect to" are in the constitutional context given a wide meaning and, in fact, what I will do is take your Honour to a range of authorities about phrases like "about", "pertaining to", "in connection with" and so on, and give you some indication of the breadth which the court in various contexts has given those phrases.

PN519

THE VICE PRESIDENT: But here we are dealing with - about matters pertaining so it is the conditional words "about" and "pertaining" - - -

PN520

MR WATSON: Yes.

PN521

THE VICE PRESIDENT: And you say that those words incorporate ancillary incidental, is that the - - -

PN522

MR WATSON: They are at least wide enough on their face, and in light of the decided authorities, to incorporate matters which are ancillary, incidental or machinery. And, indeed, the words "as to" which were the words of the previous legislation or "with respect to" as Menzies J referred to them in Portus are probably similarly wide. So that is - - -

PN523

THE VICE PRESIDENT: All right, thank you.

PN524

MR WATSON: If your Honour please.

PN525

THE VICE PRESIDENT: Mr Harris, look, I have read your supplementary submission and, as you indicate, you opted to provide a more detailed written reply rather than a substantive oral reply, and you foreshadow that it would obviate the need for any detailed oral submission. Is it convenient for me to ask you some questions in relation to it first or is there anything you wanted to say by way of supplementation?

PN526

MR HARRIS: No, your Honour. I would just indicate that we sought to confine our submission solely to the authorities that had been relied on by Mr Watson and Mr Lyons in Monday's hearing and we didn't seek to go beyond that in terms of providing response material to your Honour and the other parties. And I would be happy to answer any questions you may have about our submission.

PN527

THE VICE PRESIDENT: All right. Thank you. Paragraphs 12 to 15, you deal with the High Court's decision in Shell, and you deal with the analogy that the NUW, I think it was, or perhaps the ACTU, draws between the position in the Shell case and the inspection of time and wages books, and you say that that analogy is not sustainable. Does it follow from that, are you saying that a clause that provides - a clause in an agreement that provides for the inspection of time and wages books in relation to employees whose terms and conditions of employment are covered by the agreement, is not a matter pertaining, or incidental, or ancillary to such a matter?

[10.12am]

PN528

MR HARRIS: Your Honour, I think we were only seeking there to contend that Shell dealt with highly specific circumstances and that it would not provide support in terms of an authority for that proposition. It may be that there are other grounds on which to establish that inspection of time and wages records are incidental or ancillary, but we make no submission on that at this time.

PN529

THE VICE PRESIDENT: Okay. At paragraph 19 to 21 you deal with the union's submissions regarding Hegarty's case, and at paragraph 21 you note that clause 11 of the agreement makes provision for the role of the shop steward or delegate, and time off for the shop steward or delegate to interview employees and their supervisor; and it also makes provisions for a place designated by the employer to allow the shop steward or delegate to interview duly accredited officials of the union. Do I take it from your reference to those matters in clause 11 that you say those matters are incidental or ancillary to matters which pertain to the employment relationship?

PN530

MR HARRIS: Your Honour, in terms of the scope of a dispute avoidance clause which is required by the Act, it was found to be appropriate by the parties in this agreement to fashion that provision in this manner. So it may be the case in some agreements that that is the case, that it is incidental or ancillary.

PN531

THE VICE PRESIDENT: And is that the case in this agreement, because it forms part of the dispute settlement clause? Is that the proposition?

PN532

MR HARRIS: To the extent that it supervenes or forms part of that provisions, yes, your Honour.

PN533

THE VICE PRESIDENT: Do I take it from that that a dispute settlement clause is incidental or ancillary to a matter that pertains to the employment relationship?

PN534

MR HARRIS: Your Honour, I guess in terms of the statutory context, since the Act explicitly provides that such clauses must be included in an agreement, then - - -

PN535

THE VICE PRESIDENT: Yes, but - - -

PN536

MR HARRIS: - - - by implication - - -

PN537

THE VICE PRESIDENT: Yes.

PN538

MR HARRIS: - - - it would be a perverse outcome if such a matter was not a matter pertaining.

PN539

THE VICE PRESIDENT: At paragraph 38 and following you deal with Archer's case. Can you expand on paragraph 45? I wasn't quite sure what was the proposition you were advancing there.

PN540

MR HARRIS: Yes, your Honour. When we examined Archer's case, and in particular paid attention to the language used by the High Court in Archer, we came to the conclusion that Higgins J in that case was directing himself to the underpayment of employees by measures designed to avoid compliance with the award. In the current context we are looking at certified agreements and we don't think that there is the same connotation or it somehow being invalid that there would be differential rates of pay between people who are engaged on one agreement, and may be on another agreement or another industrial of some kind. So it was our contention that Archer's case may still have work to do, but it is - it would be more directed to those situations where there was an attempt to avoid employees being engaged and paid on a lawful basis, say. Some measure to avoid employees being paid their correct award entitlements.

PN541

THE VICE PRESIDENT: So you are drawing a distinction between a proposition where an employer may decide to, or may pay his or her employees less than is provided for in an industrial instrument, and a circumstance where, at a particular enterprise which is covered by a certified agreement, there might be the same practice?

PN542

MR HARRIS: Yes. I think what we are trying to get at, your Honour, is that awards were intended to have a slightly different function in terms of their scope.

PN543

THE VICE PRESIDENT: Well, they might be multi - they might cover a range of employers and workplaces. But I don't quite - if Archer's case is directed at the vice, if you like, of employers not meeting their obligations under the award, and for that purpose certain provisions were found to pertain to the employment relationship, such as for example, right of entry, why wouldn't the same reasoning apply in the certified agreement context? The fact that the award applies to more than one - of course, an award may only apply to one employer. But the fact that an agreement usually applies to single businesses, leave aside for a moment of course the multiple employer agreements, which would be - could be analogous to awards. Are you saying LI would have a different operation in respect of multi-employer agreements?

PN544

MR HARRIS: I guess what we were trying to - what we were drawing attention to was that the Act now contemplates and facilitates employees being engaged on different rates of pay and conditions and those conditions being determined at a workplace level, and that we think that there is no nuisance, as we might put it, in certain employees being engaged on different rates of pay or conditions than those that may pertain to a particular agreement.

PN545

THE VICE PRESIDENT: But I don't think - but Archer's case isn't directed to that nuisance, that people might be paid different amounts. It is directed to that people might be paid less than what the relevant industrial instrument provides.

PN546

MR HARRIS: Yes, your Honour. I guess all we could say is that in that case we think it is about - in Archer's case it is our contention that it is about the integrity of the award, and we don't think that the same considerations apply strongly in respect of an agreement.

PN547

THE VICE PRESIDENT: Okay. In relation to Archer's case you don't deal with, in your supplementary submissions, with the proposition advanced by the ACTU that the subsequent criticism of that case has not been directed at the part of the decision which deals with right of entry. Now, I note what you say generally about how Archer's case can be distinguished on the basis you have put it. But do you accept that that part of Archer, with your limitation, is still good law?

PN548

MR HARRIS: Yes. Your Honour, I guess we didn't really address ourselves to the question of whether Archer's was good law and we didn't take issue with the exegesis of the history of Archer's that was provided by Mr Watson on Monday's hearing. We just took Archer's on its face as it if were good law - - -

PN549

THE VICE PRESIDENT: Yes.

PN550

MR HARRIS: - - - and provide our submissions on that basis.

PN551

THE VICE PRESIDENT: Right. So you don't put that it is not good law, but you say that it only applies in the award context, not the agreement context. Is that the essence of it?

PN552

MR HARRIS: Yes, your Honour, that there are some important distinctions that one can draw between those two contexts. Not that it has no application, but that its application is - in applying it, then one must have these considerations in mind.

PN553

THE VICE PRESIDENT: Okay. You deal with Cocks' case at paragraph 50 and following. What do you say about Moore's case, and in particular the distinction that is sometimes drawn between a claim to prohibit the engagement of contractors, Cocks' case, and a clause which seeks to regulate the terms upon which they are engaged, which - and it is sometimes put that the first is not a matter pertaining and the second is, and Moore's case is cited for the authority for the second proposition.

PN554

MR HARRIS: We take much less issue with the second proposition, that is in Moore's case, than Cocks' case.

PN555

THE VICE PRESIDENT: All right. Do you accept that Moore's case is authority for the proposition that a clause seeking to regulate the terms upon which contractors are engaged could be incorporated into an agreement.

PN556

MR HARRIS: Sorry. Moore's case isn't the case that I turned my mind to in preparation of this submission, so I don't think I would be able to assist you, your Honour.

PN557

THE VICE PRESIDENT: All right. Can I go to paragraphs 53 to 56? This is the no extra claims issue. Does it follow from your submission, particularly at paragraph 55, that you accept that clauses which are directed to the maintenance of an effective settlement and the prevention of further disputes can be included in an agreement?

[10.22am]

PN558

MR HARRIS: Your Honour, keeping in mind the caveats that we have - or the points that we made earlier in our submission particularly in the context of incidental ancillary machinery, we do accept that. And we note that there is some - - -

PN559

THE VICE PRESIDENT: Sorry, which particular caveats are you drawing my attention to there?

PN560

MR HARRIS: I apologise, your Honour. The section that commences at paragraph 19. I guess, well, more directly at paragraph 20. But - - -

PN561

THE VICE PRESIDENT: I am not quite sure I can - - -

PN562

MR HARRIS: I guess I could say in general terms - - -

PN563

THE VICE PRESIDENT: Just - - -

PN564

MR HARRIS: Sorry.

PN565

THE VICE PRESIDENT: No, that is all right. I am not quite sure I follow the argument because at paragraph 20(a) you say that the certification of the agreement renders the - an effective settlement on the basis if protected action isn't available - I think, from memory, it might be 170N - industrial action might be unlawful in respect to matters covered by the agreement and that there are effective enforcement mechanisms. If that is right then what scope is there for clauses which are directed to the maintenance of effective settlement and the prevention of further disputes?

PN566

MR HARRIS: Your Honour, there is obviously still cope during the life of an agreement for there to be some disputes particularly about how the agreement may apply and certain provisions in the agreement may apply.

PN567

THE VICE PRESIDENT: Isn't that dealt with by the dispute settlement clause that is required under 170LT(8)?

PN568

MR HARRIS: By and large, your Honour, we accept that that would be the case. But it may be that in particular circumstances additional measures are appropriate particularly if there is some particular history of disputation over a particular matter that requires additional measures. And certainly we consider a no extra claims clause to be one additional measure which will be appropriate in terms of having the effect of ensuring that there are no disputes during the life of an agreement. And we just also note, your Honour, that there are statutory obligations that disputes - that agreements do have that effect.

PN569

THE VICE PRESIDENT: The last thing I had for you was, you might recall I asked Mr Barklamb some questions about blood donor leave, the thrust of that being, well, if trade union training leave was not ancillary or incidental to a matter pertaining, or wasn't of itself a matter pertaining to the employment relationship, on what basis could it be said that blood donor leave was and he was going to give some thought to that. Any product of that further thought?

PN570

MR HARRIS: Yes, your Honour, we thought you might ask us a question on this matter and it may be that there is little support for the view that there is purpose of test required in relation to leave.

PN571

THE VICE PRESIDENT: I am sorry, I missed that, Mr Harris.

PN572

MR HARRIS: Your Honour, we accept that there may be a little support for the notion that there is some purpose of test required in relation to leave. That what is required is that a provision be leave as such. The only additional thing we would say on that is you wouldn't - you would want to keep such a concept on a tight leash that if leave, as leave is a matter that pertains, it is only in respect of leave being granted to employees.

PN573

THE VICE PRESIDENT: So a provision which grants leave to employees on either, presumably, a paid or unpaid basis but it is for absence from the workforce. It is the authorised absence from work that provides the requisite connection to the employment relationship. Is that - - -

PN574

MR HARRIS: Well, yes, your Honour, our initial - we accept that we haven't been able to find much authority for our initial view that there would be a purpose of test that would also be required in relation to leave.

PN575

THE VICE PRESIDENT: Okay, thank you, Mr Harris. Was there anything further you wanted to put?

PN576

MR HARRIS: Nothing further, your Honour.

PN577

THE VICE PRESIDENT: Mr Marasco, anything from you?

PN578

MR MARASCO: There is nothing further that I wish to add, your Honour. I trust that you have received a copy of a letter that was faxed through last night from Australian Industry Group?

PN579

THE VICE PRESIDENT: No, I haven't. Well, that is comforting.

PN580

MR MARASCO: I can tender it up. It had nothing substantial really to say. I have got a copy here for you to hand up.

PN581

THE VICE PRESIDENT: I should make the general observation, it is always wise to ring my associate after you fax something through because it is a shared fax machine, so who knows what happens to them. Just give me a moment, Mr Marasco, thanks.

PN582

MR MARASCO: Yes, certainly.

PN583

THE VICE PRESIDENT: Thank you.

EXHIBIT #AIG2 LETTER FROM AUSTRALIAN INDUSTRY GROUP

PN584

MR MARASCO: And unless your Honour has any further questions formally arising, I have no further submissions to make to that.

PN585

THE VICE PRESIDENT: Thank you. Anything in reply, Mr Watson?

PN586

MR WATSON: There is a bit, your Honour. In opening I said that the employer groups were, in effect, inviting the Commission to ignore history and the fact that we are still here today arguing the matter provides absolute proof of that proposition. We are here today because on Monday ACCI supported by AIG sought an adjournment so they could read some authorities - not just any authorities. Having made a submission about whether a particular clause could apply to union members they stood up and admitted they hadn't even read the Metal Trades case.

PN587

Having made a submission about the scope of incidental ancillary and machinery matters, they stood up and made clear that they had not even looked at the Shell case which is an authority on machinery provisions specifically referred to in Electrolux. What is evidence is that, notwithstanding that Electrolux says you apply the approach to the phrase, matters pertaining to the relationship of the employers and employees in the award context to the agreement context, the employer groups came along and thought they would just bowl up a couple of arguments because they like the sound of them.

PN588

It didn't matter that there were High Court authorities directly contrary to their approach because what is evident is that they hadn't even bothered to read them. In their supplementary submission ACCI haven't advanced things much further. They have read a few cases now. They have mostly misunderstood or misrepresented their effect and on the way through they make a few more off the cuff comments which, once again, show they haven't read relevant case law. Turning, firstly, to the question of incidental ancillary and machinery provisions, in our submission, ACCIs supplementary provisions suffer three main defects as well as a number of specific ones in relation to the approach to incidental ancillary and machinery matters.

PN589

The three main defects are these. They contend, in our submission, quite incorrectly, at paragraph 20, that there are significant differences arising from the statutory context of agreement making under the present Act which limit the extent to which previous award authorities can be relied upon. The second thing is that they contend still for a narrow conception of what is incidental, ancillary and machinery and, relatedly, they continue to contend in relation to this issue that ancillary, incidental and machinery provisions must be related to a particular clause.

PN590

None of these propositions withstand scrutiny. As to the first that - and again I quote from the relevant portion of paragraph 20. That there are significant differences arising from the statutory context of agreement making under the present Act which limit the extent to which the previous award authorities can be relied upon. As I said in opening submissions, as I said in answer to your Honour's question and as is abundantly clear from the judgments in Electrolux, that is, specifically the approach which the judgments in Electrolux rejected holus bolus.

PN591

In this regard it is worth noting that the words incidental ancillary and machinery insofar as they have been used in the award context didn't arise out of specific words, as it were - those specific words, as it were, being used in the legislation. They arose out of the Court's consideration of the meaning of the phrase, as to matters pertaining, under the old Conciliation and Arbitration Act 1904 and the phrase about matters pertaining under the Industrial Relations Act 1988. Now, I should just correct something I put. At paragraph 246 of transcript I incorrectly I think - well, I know now because I have checked - suggested that the legislation had been phrased with respect to matters pertaining. But, in fact, that is not so.

[10.32am]

PN592

THE VICE PRESIDENT: Was that the gloss put on it by Menzies in Portus?

PN593

MR WATSON: Indeed, your Honour, a gloss put on by Menzies J in Portus at 357 to 358, and referred to by Gleeson CJ in Electrolux at paragraph 11. I might say that his Honour, Menzies J, on my read of things, appears to have pretty much taken the dictionary definition of the phrase "as to" because at least in the second edition of the Macquarie Dictionary which we have at home when you look up "as to" it helpfully defines it as "with respect to."

PN594

I mention that matter not merely to correct my honour for which, of course, I apologise, but it leads neatly to the second fundamental flaw which is that there is no warrant in any of the authorities for the narrow construction of incidental, ancillary and machinery for which ACCI contend. Phrases like "pertaining to", "as to", "about", "with respect to", "in connection with" are all words of extension. And, with the greatest of respect to the High Court, they have left us in a rather curious position about which one is widest.

PN595

In Shell at 354 of the report, Mason CJ and Deane, Toohey and Gaudron JJ thought that "about" might be wider than "as to". In Electrolux Gleeson CJ at paragraph 11 said that:

PN596

"With respect to" is at least as wide as "about".

PN597

And then, of course, in Portus Menzies J at 357, 358 seems to have accepted that "with respect to" is, in effect, the same as "as to." So it is - - -

PN598

THE VICE PRESIDENT: Wasn't there a consideration in Electrolux about the observation in Shell about the word being wider than "as to"?

PN599

MR WATSON: Well, as I apprehend it, the consideration in Electrolux in relation to the use of the word "about" was confined predominantly to the issue of whether or not it performed the work sufficient to change the test from being an each term test to being one of the character of the agreement.

PN600

THE VICE PRESIDENT: Just bear with me for a moment.

PN601

MR WATSON: Yes, your Honour. Yes, Mr Lyons refers me to the judgment of McHugh J at paragraphs 83 going over to 84, and his Honour there suggests that:

PN602

...the term "about" does not significantly expand the scope of matters.

PN603

THE VICE PRESIDENT: Yes.

PN604

MR WATSON: What I was going to suggest is that you have something a little bit like one of those Escher paintings where the stairs - - -

PN605

THE VICE PRESIDENT: I hope not but - - -

PN606

MR WATSON: - - - keep going up but, nonetheless, you end up back to where you started. And so in light of all of that authority, it seems, in our submission, that the appropriate course is for your Honour to approach "about" and "as to", "with respect to" and "in connection with" - which I will come to - as essentially being phrases which cover the same scope of extension, if I can put it in that way.

PN607

Now, "in connection with" I refer to because, your Honour, that is probably the relevant dictionary definition meaning of "about". It is also a gloss, if I can put it that way, which is established in Portus in the judgment of Walsh J at 363, and if I can take you just to that passage in Portus - [1972] HCA 57; (1972) 127 CLR 353, and at 363 his Honour at about point 8 says:

PN608

It is true that whilst the court has laid stress on the requirement that the relationship to which an industrial matter must pertain ...(reads)... a demand within the description of an industrial matter.

PN609

And then he goes on to say:

PN610

In R v Findlay, Ex parte Commonwealth Steamship Owners Association ...(reads)... and the work done under it.

PN611

And then his Honour said, in that case that the relevant connection in the subject of the claim was not remote or tenuous.

PN612

THE VICE PRESIDENT: And I think McHugh J refers to that extract - - -

PN613

MR WATSON: Yes. Yes, indeed.

PN614

THE VICE PRESIDENT: - - - in his judgment in Electrolux.

PN615

MR WATSON: The significance of these things is that it shows, in our submission, clearly that incidental, ancillary and machinery matters are not to be given the narrow scope for which ACCI contend. The phrase "in connection with" which, as we contend, is one of the phrases which has been used and is a synonym, if you like, for "about" was considered in an authority to which I wish to take your Honour and which I did refer Mr Harris to before we commenced today so that we didn't fall into the same trap as last time. And it is R v Watson, Ex parte Australian Workers Union, decided [1972] HCA 72; 1972, 128 CLR 77, and I have a copy for your Honour and copies for others. My administrative assistant this morning was unkind enough to ask me whether I was the Watson. I want to emphasise that I was nine at the time. She will pay.

PN616

This is in the context of a rules consideration, union rules, and it is particularly the remarks of his Honour, Gibbs J at 95 to which I want to take your Honour. At 95 his Honour's - at the very top, having described the sort of work that is being performed, he says:

PN617

They will fall within the rule only if they are doing concrete mixing in connection with or incidental to the foregoing operations.

PN618

And then he talks about whether or not it is particularly clear what the foregoing operations are. And then down at about point two he says this:

PN619

The words "incidental to" are narrower and more limited than the words in connection with ...(reads)... the employment of the labourer doing the concrete mixing and the building operations.

PN620

And obviously that latter remark is specifically related to the context of the case. But in the context of the legislation, the use of the phrase "about" - in our submission a synonym for "in connection with" - it, itself, implies a fairly wide incidental power.

PN621

Now, I have taken your Honour to the passage of Walsh J in Portus. Can I now also address your Honour on some of the consideration, judicial consideration, of the phrase "with respect to." It is to be noted that that is the phrase his Honour, Menzies J used. In the constitutional context the phrase "with respect to" has been held - it is, of course, the introductory phrase in section 51 of the Constitution. Parliament is given power to make laws with respect to the subject matters then enumerated.

PN622

And it has been held to allow legislation on incidental matters quite apart from the specific incidental power. Now, sometimes this is called what is known as the implied incidental power, and I should say that in constitutional theory there is sometimes an issue about whether it derives exclusively from the words "with respect to" or from another doctrine which says that where you have got plenary powers you have necessarily got the right to do everything that is incidental. But the upshot of the authorities is that it probably doesn't make much difference where it derives from, the approach would be the same nonetheless.

PN623

Nationwide News v Wills is a recent authority in which some of these matters are adverted to; and can I take your Honour to that case. Now, of course, your Honour, this is one of those cases in which various judges reach various positions for varying reasons and so it is a rather complicated case if one is going to it for the precise purpose of finding out what it was that it determined. But in the course of the consideration his Honour, Dawson J dealt with the issues of "with respect to" and "incidental" in this constitutional context, and that consideration starts at 84, point 9, where his Honour says:

PN624

But I wish to say something about the approach to be adopted in determining whether section 299(1)(d)(ii) ...(reads)...in the grant of each of the other heads of the power enumerated in section 51.

PN625

And then a little further down, at about point 6 of that page:

PN626

The power conferred upon the Commonwealth Parliament by section 51 of the Constitution ...(reads)... but I doubt whether the addition of the adjective is helpful.

[10.45am]

PN627

And then finally his Honour, at the foot of 86, says this - well, I am sorry; it is probably best to go to the top of 87:

PN628

What is incidental to the subject matter of the main power may go beyond what is necessary ...(reads)... by proper and general means.

PN629

He then goes on, having quoted:

PN630

But the exercise remains one in which it is necessary to discern a sufficient connection between the law and the head of power.

PN631

Now, I go to those Constitutional authorities, because whilst the context is admittedly different it is nonetheless clear from those authorities that the words "with respect to" give themselves a wide scope for incidental, ancillary or machinery matters much wider than the scope for which ACCI contend, and consistent, in our submission, with the submissions we put based on the judgment in Spicer regarding the approach taken then.

PN632

Mr Barklamb on Monday suggested that incidental might mean just necessary, but Starke J quoted in Spicer says "reasonably necessary or proper". He is cited at 347 in Spicer. In Galvin, which is cited extensively at 350, they use the phrase "reasonably incidental or appropriate", and then in Spicer itself it was noted that the bans which might be the subject of the clause might have a purpose with respect to matters which were themselves not industrial matters.

PN633

Now, the third proposition, third general proposition which ACCI advance, which in a sense we have dealt with but - in dealing with that second proposition, but which warrants just a little time is that they still persist, right at the outset, in their consideration of this issue with the notion that to be ancillary, incidental or machinery it has to be attached to some particular clause, and there is simply no warrant for that approach in either Spicer or Hegarty, or in any of the other authorities that I have referred which deal with the question of incidental, ancillary, machinery or with respect to, or in connection with, in other contexts.

PN634

Now to deal with the specific errors, at 12 to 15 of their submissions ACCI seek to distinguish Shell. At paragraph 13 they say that in the case - in Shell's case all parties knew that there was a surplus and that the issue was the size and composition, and that could only be determined by an actuary, and that warrants, therefore, distinguishing Shell from our analogy with the inspection of time and wages books. Were it not stated seriously it would almost be laughable. It seems to lead to the proposition that if a union knew that people were being underpaid under an agreement, then a right of entry matter might pertain.

PN635

But at that point the agreement would already be in place and so how would they get the right of entry under the agreement? But you can't have provisions for the inspection of books and the like in order to ascertain whether there is an underpayment. It is a nonsense distinction. It gets them nowhere. At 16 to 18 they deal with Hoyts. They mis-characterise the passage on which we relied. The passage on which we relied was a general passage which dealt with the question of how one characterise whether things pertain, and you will remember there was the example of the safety committee.

PN636

ACCI distinguish it on the basis that the High Court in Hoyts held that the particular award clause there, whilst it could be included in an interim award might not be valid in a final award. Those remarks bear not at all on the propositions to which we took you. At 20, I have already taken you to the general proposition they make about distinguishing between the agreement and the award context, but it is worth noting the particular basis on which they say these things are distinguished. They say, "The agreement settles the matter."

PN637

Well, of course, so did the award, and so provisions which maintain the effective settlement are not different. They say, well, there are dispute settlement procedures in section 170LT. Yes. It is true, section 170LT requires a dispute settling procedure in an agreement for it to be certified. But, and here is the critical point, the agreement to be certified still has to meet the test in section 170LI, and section 170LI doesn't create any specific reference to dispute settling procedures. It is not as though section 170LI says, about matters pertaining and including a dispute settling procedure.

PN638

A dispute settling procedure only can be included if it meets the test in section 170LI, and it is clear from the way Parliament has structured the relevant sections that Parliament was intending that a dispute settling procedure would fall within the general propositions regarding the tenor of that phrase. So it is not a point of distinction at all. In fact, what it emphasises is our construction of 170LI.

PN639

Now, at paragraph 21 they point out that clause 11 provides a number of things regarding disputes. The first point is that it is apparent, or it would seem to be apparent, that not much issue is taken with those things and by parity of reasoning, if they are wrong on their particular clause argument, it is hard then to see how the other clauses for which we contend don't fall within the same scope. We note that the clauses in clause 44 and 47 still have work to do.

[10.55am]

PN640

Clause 10 provides a particular role for the union in relation to change. And as we said in our opening submissions all of the other clauses of the agreement that pertain to the relationship, things like, how is clause 26 actually working in practice. Going and talking to someone about whether they want clause 13 to be retained in the agreement or do they want the agreement varied so that it goes. All of those things, we would say, clause 44 and clause 47 are obviously relevant to - directly connected with. Your Honour, on Metal Trades, Mr Lyons will address you briefly. Can I just say on Archer's case, as your Honour has observed, in relation to Archer's case there are two things.

PN641

The first is that on the contractor's point we were not relying on Archer's case for the contractor's point at all. In fact I specifically averted in my submissions to the questions which had been raised in Cock's case regarding the authority of Archer on that point. But what is extraordinary is that ACCI and AIG still have not addressed you on Q v Moore ex parte, the FMWU. And it just, frankly, seems almost beyond belief that they could come and make a series of contentions regarding the efficacy of contractor provisions without addressing you to the most recent High Court authority on that issue.

PN642

And can I refer, your Honour, again, to a particular passage, Jacobs J at 477.9, just in relation to the way in which your Honour should approach Cock's case too, because his Jacobs J seems very much to have confined Cock's case to its language, rather, its circumstances. Clause 8.3 relates to work performed under the agreement. In our submission it pertains to the work. It is a bit like a Mareva injunction preserves the subject matter of litigation. Clause 8.3 preserves the very subject matter of the agreement. It is about the work being performed under the agreement.

PN643

It is not a contractor clause at large as in Cock's case but it is about matters pertaining to the relationship between employers and employees because it is about the work performed under the agreement. Finally, the criticism of our reliance on Cramm in relation to clause 44.4, perhaps misapprehends, how we put the propositions in relation to 44.4. Firstly, we rely on the general propositions we have made regarding union facilities. Secondly, as I indicated, we rely on those aspects of the NUWs submissions - written submissions. And as elaborated by Mr Lyons in relation to leave and the potential characterisation of that provision as leave or paid time off working, at any rate, for the delegate and the employee to have discussions.

PN644

And, thirdly, we rely on Cramm. Now, in relation to Cramm, the ACCIs submission is in effect that it is not about recruitment because it uses the term "worker" and the term "worker" necessarily implies that a person has been employed and therefore recruitment has ceased. Two propositions regarding that. First, the fact that it uses the term worker does not suggest anything, in our submission, about whether someone has been employed. Indeed, even the phrase, employee, in the Act bears the extended meaning of someone whose usual occupation is the employee.

PN645

But the phrase "worker" is, frankly, a far more broadly interpreted phrase, in any event. The second thing is that the narrow conception that recruitment and the processes of recruitment stop the minute you sign a contract of employment, seems, in our respectful submission, to be unsustainable. Those are the matters I have in rely unless your Honour has anything else.

PN646

THE VICE PRESIDENT: No.

PN647

MR WATSON: If your Honour pleases.

PN648

MR LYONS: If the Commission pleases, I seek to reply to essentially those issues of our principal submission, your Honour, that were dealt with in the reply and principally the characterisation of the Metal Trades doctrine which is contained at paragraphs 26 and following of the ACCI submission. In our submission, your Honour, the attempt by ACCI to narrow the principle set down in that decision is entirely inappropriate and ought be rejected. In making that submission, your Honour, we say it is telling that - if you recall, your Honour, I took you to a number of provisions of the actual judgments in the Metal Trades case in support of our construction of the holding in that matter.

PN649

It is telling that in relation to ACCIs reply they do not go to the text of the judgment at all but seek to characterise it as merely being a decision about the interest of the union in applying terms and conditions across an industry. In our submission that is only part of what that decision is a holding for, your Honour. It is also a holding about the interest the union has in ensuring consistency within an enterprise. Similarly, the authority is not limited to merely the issue of wages which is the only context in which it is addressed by ACCI, but explicitly wages and conditions of employment. It is a matter I will return to in a moment.

PN650

In that respect, your Honour, we refer your attention to the decision of Latham CJ at the bottom of 402 into 403. The judgment of their Honours, Rich and Evatt JJ at 417 and 419 and the judgment of McTiernan J at 442. I took your Honour last time similarly to Ex parte Kirsch, which is (1938) 60 CLR at 507 and similarly in the exposition of the holding in the Metal Trades case there is strong support for the approach we take to the principle in the original decision, that is, it is about more than just a single enterprise - more than just an industry, it is also about the enterprise and about wages and conditions.

PN651

And those references are a decision of Starke J at 528 and the decision of Dixon J at 531, 537, in particular, where his Honour refers to specified terms and conditions of employment and the obligation to observe specified terms and conditions of employment. At 541 of Dixon J and at, in particular, at 543 of the decision, which I can very briefly take your Honour to. At the very bottom of 543 McTiernan J says:

PN652

An award imposing the obligation on the employers to observe prescribed rates and conditions in the employment of non-unionists is a direct method of settling that dispute.

PN653

In our submission, that is directly analogous to the AWA provision, your Honour. It is a direct method of settling the issue of whether or not the terms and conditions of the agreement will be applied exclusive of other arrangements. So, what his Honour said was, well, you make an award that covers unionists and non unionists and that is a way of dealing with the dispute. The provision - mandating of the agreement applies to the exclusion of AWAs is a directly analogous mechanism, in our submission. So we say that deals entirely with the proposition advanced at 26(a) of the ACCI submission, that Metal Trades is about more than just wages and it is about more than just a union's interest in enterprise.

[11.08am]

PN654

At paragraph (b) of paragraph number 26 of ACCI, they advance the proposition that appears to amount to this, that the union's interest in enforcement or observance of terms and conditions arises only where there is some evidence of employer malfeasance. That is that we would be required to advance evidence that this is a - in essence, your Honour, a bad employer or an employer that is seeking to avoid the obligations which it has agreed with the unions and its employees. In our respectful submission that is a nonsense proposition, your Honour, that essentially we are required to wait until the employer is doing the wrong thing before we can seek to establish machinery to prevent it happening in the first place.

PN655

It is analogous to the position that Mr Watson put to you about right of entry, your Honour, that they say we are supposed to wait until there is some evidence of non-compliance before we can seek to achieve right of entry. In particular, your Honour, we don't understand how it is contended that evidence of malfeasance by the employer somehow changes the character of the provision and would render it a matter pertaining, but it appears to be advanced on that basis. But if there was some evidence of wrongdoing we would be allowed to put these things in our agreements. That amounts to a proposition that the union and its members are required to remain entirely defenceless until an employer does the wrong thing.

PN656

In respect of paragraph 26(c) ACCI places some reliance on the fact that agreements are enforceable in any event. The same, of course, your Honour, was always true in relation to awards. So that doesn't advance the argument. Awards had the same effect of preventing further claims for their nominal life, or at least preventing the jurisdiction of the Commission from dealing with claims for their nominal life and were enforceable through the Court in the normal way. Section 119 of the C and A Act has relevantly the same effect as section 179 and following terms of the enforcement of awards and agreements. None of that detracts from the ability of the parties to agree on mechanisms at the workplace to ensure the observance of the terms and conditions that are agreed.

PN657

Nor does the position put at 26(d) advance the ACCI argument. The suggestion that the presence of freedom of association provisions somehow prevent discriminatory conduct, while true, or at least render such conduct unlawful, doesn't deal with the issue of whether or not such matters can be included in a term of the agreement. The fact that there may be a statutory remedy, in our submission can't be said to restrict what parties are able to agree on and include within their agreement. And I think the no extra claims provision, which your Honour has already taken ACCIs evidence, enough of that.

PN658

At paragraphs 27 and 28 of ACCI they make a submission in respect of the Metal Trades decision which amounts to this proposition that somehow under a bargaining system unions have lost that interest which Metal Trades says we have in ensuring the observance of terms and conditions of employment. And we say that system ought be rejected. Whatever statutory scheme parliament adopts for the making of awards or the conduct of bargaining, can't, in our submission, change the interest - the organic interest that a union and its members have in ensuring that the wages and conditions we agree with employers are not - and those agreements and awards are not rendered nugatory by the actions of employers.

PN659

The interest that we had in the 1930s in our submission, your Honour, are the same now, that the wages and conditions that we agree should be applied without allowing employers to avoid them by the adoption of alternative arrangements. That may today be dressed up in language - the language of efficiency, your Honour, but the interest and the principle is the same. In fact, in our submission, the emergence of a bargaining system where parties are at liberty to move away from the direct conduct of awards, has only strengthened the interest that a union has in ensuring that where it does have agreements and industrial instruments, that those conditions are observed.

PN660

And, indeed, as Mr Watson put to you the other day - on Monday, your Honour, the effect of a section 170LJ agreement is to specifically bind non-union employees as parties to the agreement in a manner that was not the effect of awards - or is not the effect of awards. In relation to the submission that is put concerning - or in opposition to the provision prohibiting the use of Australian workplace agreements, your Honour, despite what is put it is not our assumption that an AWA may necessarily pay wages less than the agreement, although that is possible; merely that it would be different.

PN661

And it is not simply a matter of undermining the wages, as I suggested, and it is worth in reference to that, your Honour, to refer very briefly to the process by which an AWA would be assessed, absent the provision of 9.2. The AWA, of course, would be assessed for the purposes of the no disadvantage test against the awards and not the agreement. The agreement contains, to pick out a couple of issues, your Honour, which are clearly in excess of the award - not only the wages - the agreement provides for a 36 hour week. The agreement provides for a redundancy agreement that is three weeks per year of service, plus a number of other additional benefits well in excess of the award.

PN662

The agreement provides for 10 sick days in excess of one of the awards on which the agreement is reached and the agreement provides for an additional public holiday. Now, it is easy to see, your Honour, how in circumstances where if AWAs were made, all of those conditions or some of those conditions could be directly undermined and that union members enjoying, for example, a 36 hour week, could be directly undercut by employees on AWAs working a 38 or 40 hour week, or not enjoying the additional union picnic day public holiday or not enjoying the redundancy package of three weeks per year of service. And that is, in our submission, exactly the interest identified in Metal Trades.

PN663

Nor does the fact that AWAs are a lawful course of action, prevent the parties from agreeing not to adopt that course of action. As we said on Monday, the choice of agreement making is vested with the parties at the workplace level and they should be free to codify the choice they have made in the agreement that they make. In relation to the renegotiation provision, your Honour, we say the defence of the no extra claims provision mounted by ACCI is a self-serving one and attempts to draw a distinction between it and other machinery provisions of the agreement such as renegotiation which simply does not exist.

PN664

We note in particular that the no extra claims clause is severable from the agreement, which is one of the bases on which they say that the renegotiation provision should come out. An agreement can operate perfectly validly without one and in any event the subject of extra claims is dealt with directly by the Act which is one of the matters which they say justifies the removal of a number of the provisions they contend for.

PN665

THE VICE PRESIDENT: Is it dealt directly with in the Act?

PN666

MR LYONS: Well, there is a prohibition on the taking of protected industrial action, which in our submission - during the nominal life of an agreement.

PN667

THE VICE PRESIDENT: Yes. What about the scope of 170N though?

PN668

MR LYONS: Well, it amounts to the same thing, your Honour.

PN669

THE VICE PRESIDENT: No, it is not N that I am thinking of.

PN670

[11.18am]

PN671

MR LYONS: Your Honour, the Emwest question aside, it is clear that matters which are dealt with in the agreement - - -

PN672

THE VICE PRESIDENT: Yes, but the Emwest situation is exactly what I am thinking of.

PN673

MR LYONS: Yes.

PN674

THE VICE PRESIDENT: The no extra claims provision in the agreement would stop you making any other claims, not just claims in respect of matters that are covered in the agreement.

PN675

MR LYONS: Yes, well that - and that is the effect of the no extra claims clause in this particular agreement.

PN676

THE VICE PRESIDENT: No, no. That - - -

PN677

MR LYONS: It is not - yes.

PN678

THE VICE PRESIDENT: That is the point, isn't it, that absent that on Emwest, you would be able to pursue claims in respect of matters which are not covered by the agreement, and that is really the point that can be inferred from what ACCI is saying, that in order to make the settlement effective, that is, this is - this agreement settles all the matters between the parties for the life of the agreement, you need the no extra claims commitment. If you don't have it, then the statutory provisions won't stop the union from pursuing claims in respect of matters which are not covered by the agreement on the authority of Emwest. Isn't that the argument?

PN679

MR LYONS: It is, your Honour, but that doesn't get - that doesn't deal with the argument they advance against the provisions they seek to have excised.

PN680

THE VICE PRESIDENT: No, no. I am - - -

PN681

MR LYONS: Yes.

PN682

THE VICE PRESIDENT: I am not going to that for the moment.

PN683

MR LYONS: But I think your Honour has properly characterised what the effect of that is. Yes.

PN684

THE VICE PRESIDENT: Okay.

PN685

MR LYONS: In general though, we say, your Honour, as I indicate, that it is perfectly possible though that an agreement can operate without the no extra claims provision, and it is severable, as is a number of the other provisions to which no objection is taken to, and they are also dealt with in the act. Matters such as the anti-discrimination provision, the effect of a savings provision is effectively the same as the provisions that deal with the operation of a certified agreement. Now, no objection is taken to any of those, so there is an inconsistent approach of what ACCI says is the principle to the machinery and other provisions of the agreement.

PN686

Further, the renegotiation provision is clearly directed at further disputes, and Mr Watson has addressed you on the ability of the parties to include matters that would deal with the matters currently in dispute or further disputes. It is a process to deal with the next round of claims, which is a process to deal with the next circumstance in which the parties are bargaining and therefore may, or are likely to end up in disputation. In respect of employee liability, your Honour, the ACCI concede that a provision for the reimbursement of expenses pertains, but then claim that this specific provision is really about litigation and therefore doesn't.

PN687

In our submission there is a direct analogy between the reimbursement of expenses and the provisions of clause 13, and we express that this way, your Honour. If an agreement includes a provision - to take a specific example, your Honour. If I present my car parking receipt from below when I return to my employment, and as part of my employment conditions I have an agreement with my employer that they will reimburse me for parking in this building, it is possible, as AIG does, to characterise that as about my relationship with Kings Parking. But it is also about my relationship with my employer.

PN688

The suggestion in their submission about clause 13 that it is really about the employee and a litigant is of the same order. We don't understand how there can be some breakdown in the connection to the employment relationship because the claim relates to litigation. It is still a claim against the employee arising out of the employment in the same way as if an expense is incurred arising out of the employment. ACCI has conceded that that pertains.

PN689

We simply seek to make one observation in relation to ACCIs submissions on payroll deductions. We don't invite - it is a mis-characterisation of our submission to say that we invite your Honour to come to a different conclusion than Alcan and Portus in respect to payroll deduction, but we do contend that there is a fundamentally different situation. We say that the ACCI submission in reply concerning the issue of the requirement of employees to have bank accounts amounts to a concession that it is acceptable for a clause in an agreement to deal with an extraneous relationship under some circumstances, and that in effect, your Honour, is the issue of principle, and that on that basis your Honour ought come with us on the view we expressed about the payroll deduction provision.

PN690

We only make one other observation, your Honour, and that is to say what ACCI says at paragraph 81 of its submission that "it is reasonable to surmise", which is their quote, that - they say the award, but I assume they mean the log of claims that was before the court in Alcan and Portus included provision for payment of wages. I mean that, in our submission, course of action to the Commission is not open. Alcan and Portus were determined on the narrow point of approaching the claim about union fee deduction. There is nothing in either of the decisions that says their Honours had before them provisions that dealt with the specific machinery for the payment of wages, which is exactly the circumstance in which your Honour finds yourself.

PN691

There is only two housekeeping matters, your Honour, I should address before I sit down. The first is when I was on my feet on Monday discussing with your Honour the section 170LV point we expressed a view that there were considerable authorities for the proposition that undertakings were not available to remedy any defects under section 170LI, and that in those circumstances we wouldn't ask your Honour to depart from those. The authorities to which I refer is a Full Bench of this Commission of which your Honour was the Presiding Member in Re Energy Developments Limited and Employees of the Company Certified Agreement 2002, which is at PR928057; and a more recent Full Bench in Alcheringa Hostel, which is PR951805.

PN692

The observations of the Full Court of the Federal Court in Re AIRC Ex parte CFMEU, which is at 1999 164 ALR at 73, which I think is commonly referred to as the Mine Management case, your Honour, appears to support that view.

PN693

THE VICE PRESIDENT: Whereabouts? At which part of the decision?

PN694

MR LYONS: Your Honour, I think it is at page 87, your Honour.

PN695

THE VICE PRESIDENT: Thank you.

PN696

MR LYONS: There was only one other issue, your Honour, and that concerns - I am hesitant to ask, given the response given to Mr Marasco, but did your Honour receive from the union on Tuesday correspondence concerning the issue of union picnic dates?

PN697

THE VICE PRESIDENT: Yes, I did.

PN698

MR LYONS: Yes. I note that was forwarded to both ACCI and ACCI [sic] and I confirmed with both they had received it. No issue was taken with that. The union doesn't wish to address you on it, your Honour. We simply rely on our overall submissions concerning provisions that deal with leave. The union picnic date provision creates leave or penalty rates in lieu of leave, and on that basis we say the inclusion of the provision pertains, if the Commission pleases.

PN699

THE VICE PRESIDENT: Thank you. Mr Harris, can I just raise one thing with you. You heard the argument which I understood you to be agreeing with when I put it to you that the requirement in section 170LT(8) to have a dispute settlement clause in an agreement in order for the agreement to be certified, the proposition was put: well, the first step is for it to be certified it must meet 170LI. And a dispute settlement procedure can only be included in an agreement if it meets the test in 170LI. Hence, a dispute settlement procedure is a matter which is incidental, or directly, pertains to the employment relationship. So the argument really derives from the statutory context which appears. Do you accept that proposition?

[11.27pm]

PN700

MR HARRIS: Yes, I accept Mr Watson's submission in that regard that clearly a dispute settlement procedure should also meet the tests established in 170LI.

PN701

THE VICE PRESIDENT: Okay.

PN702

MR HARRIS: In most cases that would quite easily be done, but I guess it is possible to conceive of a dispute settlement procedure which did not.

PN703

THE VICE PRESIDENT: Just adopting the same approach for a moment, that is you look at statutory context, can I take you to regulation 131P. This is in that group of regulations which deal with time and wages records, and regulation 131P - I will wait until you get it. A copy of the Act is a nightmare to actually find where the regulations are. It might be helpful if they were colour coded.

PN704

MR HARRIS: I apologise, your Honour. What regulation was that in?

PN705

THE VICE PRESIDENT: 131P of the Workplace Relations Regulations, not the organisation ones.

PN706

MR HARRIS: Yes, your Honour. Is it the regulation relating to the provisions relating to records?

PN707

THE VICE PRESIDENT: Yes. You see, that regulation - well, the regulations generally provide that:

PN708

Employers who employ people under an award, certified agreement or some other instruments are obliged to keep certain time and wages records in relation to those employees.

PN709

131P says that the Commission can issue a certificate, essentially saying that the provisions that the employer is obliged to meet under an award or certified agreement satisfy their obligations under the regulation. And it specifically says:

PN710

The Commission may issue such a certificate stating that an award, a certified agreement -

PN711

or an old IR agreement -

PN712

complies with this part.

PN713

What do you say to the proposition that that brings with it the implication that certified agreements can contain provisions which are analogous to those in the regulations relating to the keeping of records?

PN714

MR HARRIS: Your Honour, I am not entirely certain what the context of the regulation is but I imagine it is to assist in ensuring that employers comply with their obligations in relation to time and wages records.

PN715

THE VICE PRESIDENT: You mean, what is the intent of this regulation, 131P?

PN716

MR HARRIS: Yes, your Honour.

PN717

THE VICE PRESIDENT: I think it just gives employers another way of meeting the obligations under division 1 of Part IXA of the regulation. They can either do it by a record which is in the form there prescribed or they can meet it by something which is in the award or certified agreement which applies to them. So they can meet their obligation in a different way. But really the point is does it flow from 131P(1) that the legislature is contemplating that time and wages or provisions in relation to the keeping of time and wages records are matters which can be included in a certified agreement?

PN718

MR HARRIS: It would appear to be, your Honour, but it would be a matter of what particular provisions were required to meet the regulation.

PN719

THE VICE PRESIDENT: Yes, quite. Okay. Is there anything else from anybody?

PN720

MR LYONS: Your Honour, I should just indicate I did misdirect you to the paragraph in that Full Court decision, your Honour. It is the judgment of Wilcox and Madgwick JJ at pages 128 - I am sorry, paragraphs 128 to 129.

PN721

THE VICE PRESIDENT: Thank you.

PN722

MR LYONS: If the Commission pleases.

PN723

MR WATSON: And at the risk of - I might just briefly in relation to the point your Honour has just raised with Mr Harris. Of course regulation 131P being a regulation in one respect can't go beyond statutory power so - but we would contend that in the same way as Electrolux and Alcan there was reference to Parliament having in mind when it legislated, in effect, a settled interpretation of authority, the regulation seemed to proceed on the settled interpretation of authority for which we contend.

PN724

THE VICE PRESIDENT: If there is nothing further, it will come as no surprise that I propose to reserve my decision in respect of this matter. I will endeavour to get a decision down next week. Nothing further? I will adjourn.

ADJOURNED INDEFINITELY [11.35am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #NUW1 SUBMISSIONS PN511
EXHIBIT #NUW2 SUBMISSION IN REPLY PN511
EXHIBIT #ACTU1 SUBMISSION PN511
EXHIBIT #AIG1 SUBMISSION PN511
EXHIBIT #ACCI1 SUBMISSION PN511
EXHIBIT #ACCI2 SUPPLEMENTARY SUBMISSION PN511
EXHIBIT #AIG2 LETTER FROM AUSTRALIAN INDUSTRY GROUP PN584