C2004/4359, Transcript of Proceedings [2004] AIRCTrans 4185 (28 October 2004)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT MARSH
DEPUTY PRESIDENT McCARTHY
COMMISSIONER BACON

C2004/4359

APPEAL UNDER SECTION 45 OF THE ACT
BY WESTERN AUSTRALIAN FARMERS FEDERATION INDUSTRIAL ASSOCIATION AGAINST THE ORDER
[PR949733] OF COMMISSIONER CARGILL MADE
AT SYDNEY ON 20 JULY 2004 IN MATTER NUMBER
C2004/4732

PERTH

10.02 AM, TUESDAY, 19 OCTOBER 2004

PN1

MR J. BLACKBURN: I seek leave to appear on behalf of the appellant.

PN2

MS A. I seek leave to appear on behalf of the Australian Workers Union.

PN3

SENIOR DEPUTY PRESIDENT MARSH: Yes, thank you. Leave is granted. Mr Blackburn?

PN4

MR BLACKBURN: Yes, thank you, your Honour. Your Honour, we did in our written outline of submissions and also in the correspondence provided to you, submit some amended grounds of appeal and the first thing we do this morning is seek leave to amend the grounds of appeal to reflect the grounds that were provided with the papers.

PN5

SENIOR DEPUTY PRESIDENT MARSH: Yes, thank you. Ms Gooley, what is the position of the AWU?

PN6

MS GOOLEY: As indicated in our submissions, your Honour, we opposed the granting of leave to appeal. In particular, we oppose the granting of leave to appeal the decision of Vice President Ross's failure to give reasons pursuant to section 100 because that matter is not before this Commission. There has been no appeal filed against Vice President Ross's decision or his decision not to publish reasons. And so we oppose the granting of leave to appeal to the extent if you grant leave to amend to appeal grounds to the extent that it seeks to appeal against the decisions of Vice President Ross.

PN7

SENIOR DEPUTY PRESIDENT MARSH: Thank you. Mr Blackburn?

PN8

MR BLACKBURN: Yes, your Honour. Your Honour, the first point we would make is that as far as appeal grounds 1 to 4 are concerned, and we say this in our outline of submissions, they go to the same matter as the original grounds set out in the notice of appeal, except they are perhaps phrased more accurately. And that is that they go to the Commission's failure to exercise conciliation powers before arbitrating. So there is no surprise in - sorry, that should be in grounds 1 to 3 of the appeal.

PN9

Ground 4 of the amended ground of appeal goes to, again, the question of whether the Commission was entitled to arbitrate in the circumstances. Ground 4 is put in the alternative. Our primary submission is that Vice President Ross did refer the matter to Commissioner Cargill for conciliation. There is no decision issued by Vice President Ross to indicate that the matter had not been referred for conciliation. Such a decision was required by section 100 of the Act. If, in fact, Vice President was of the view the conciliation would not assist, he was required to issue a decision to that effect. And of course, no such decision was made.

PN10

Secondly, when section 100 was raised with Commissioner Cargill, Commissioner Cargill did not indicate that Vice President Ross had referred the matter to her for arbitration. And thirdly, in those circumstances in our view, there has to be a presumption of regularity, that is, a presumption that Vice President Ross did, in fact, comply with the Act and referred the matter - and not having issued a decision indicated that it had been referred for arbitration, had in fact referred the matter for conciliation.

PN11

So, we say our primary position is that Vice President Ross did refer the matter for conciliation, not arbitration. However, it is put against us that, well there is no evidence to that effect and that it is possible that the Vice President referred the matter for arbitration, then we rely in the alternative on ground 4. Ultimately the point is the same because what we say is that if Vice President Ross did not refer the matter for conciliation, then he acted contrary to section 100 of the Act in that there was no basis on which he could have been satisfied the conciliation would not have assisted. And he failed to comply with his obligations for the public reasons pursuant to section 100.

PN12

And as a result of those things, there could be no valid proceeding before Commissioner Cargill. So that the award made by the Commissioner was, for that reason, invalid. Now, we are not appealing the decision of Vice President Ross. We are appealing the Order of the Commissioner. And what we say about that is that if it is set against us that Vice President Ross referred the matter for arbitration, then we say that he was not entitled to do that. The reference to Commission Cargill without a decision having been issued under section 100(2) was in valid, if you like. The matter was not properly before Commissioner Cargill and therefore, the Order issued by Commissioner Cargill was invalid.

PN13

So as I say, we do not attack - we are attacking the Order of Commissioner Cargill. Primary position is that it was referred for conciliation but if it is set against us that it was referred for arbitration then we say that Vice President Ross was not entitled to refer the matter for arbitration in any event. So the Order would fail for that reason.

PN14

Now as to whether in fact leave should be granted to parties to amend, we rely on the decision in Queensland v J.L. Holdings which is a decision of the High Court which stands for the proposition that:

PN15

Leave to amend to allow a party to litigate an issue which is fairly arguable, should be granted unless to do so would cause injustice to the other party.

PN16

If I could take your Honours and Mr Commissioner to that decision, which was number one on the list of authorities. Now at page 295, the majority of Dawson, Gaudron, McHugh JJ, said at the bottom of page 295 in the right hand column that:

PN17

The applicant's applied to the Federal Court for leave to appeal against the refusal of the primary judge to grant the application for leave to amend.

PN18

So that had applied to the primary judge for leave to amend had been refused and now they appealed. The Full Court granted leave but dismissed the appeal. From granting leave to appeal, and I will miss out a couple of lines, the Full Court, their Honours referred to the well known passage in the judgement of Lord Justice Bowen in Cropper v Smith where his Lordship says:

PN19

Now I think this is a well established principle that the objects of court is to decide the rights of parties and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights.

PN20

And a couple of lines on:

PN21

I know of no kind of error or mistake which if not fraudulent or intended to overreach the court ought not to correct if it can be done without injustice to the other party. Court's do not exist for the sake of discipline but for the sake of deciding matters in controversy and I do not regard such amendment as a matter of favour or of grace.

PN22

The Full Court then referred to another decision of the High Court in Clough, Rogers v Frog, which adopted the words of Lord Justice Bowen in Cropper v Smith but then went on to dismiss the appeal saying that times had changed since 1884 and even since 1974 and they dismissed the appeal on the basis of some dicta in another High Court in Sali. In other words, the Full Federal Court said that for reasons of case management, it was important that the matters proceed expeditiously and therefore, the application to amend was refused.

PN23

The Full Court cited the passage from Sali, which appears on page 296, halfway down the page, where the majority in Sali concluded:

PN24

Unless we are to mouth the repeated cautions about discretionary judgements, case management, efficiency practice and procedure, only to ignore them when it comes to the crunch, this appeal must be dismissed.

PN25

Now, what the High Court in Queensland v J.L. Holdings said about that was:

PN26

It may be said at once that in the passage cited from Sali, Toohey, Gaudron JJ, are not to be taken as sanctioning ...(reads)... and no principle of case management can be allowed to supplant it.

PN27

And then on page 297, the High Court said:

PN28

If it is arguable, the applicant should be permitted to argue it provided any prejudice might be compensated by costs.

PN29

So the High Court has said there that leave to amend to allow a party to litigate an issue which is fairly arguable, should be granted unless to do so would cause injustice to the other party. Now in this case, the matters raised in grounds 1 to 4 of the appeal all go to this question of whether the Commissioner erred by not conciliating before arbitrating. Those matters were raised in the original grounds of appeal. Ground 5 of the amended grounds of appeal goes to the refusal to grant the appellant an adjournment. That was not a matter raised in the original grounds of appeal but it was foreshadowed during the hearing of the stay application.

PN30

So the respondent has been on notice that that matter would be raised and of course, the amended ground of appeal was served along with the outline of submissions. So we say the application to amend was sought before the respondent was required to put its case and the respondent will suffer no relevant prejudice if leave to amend is granted.

PN31

SENIOR DEPUTY PRESIDENT MARSH: Thank you. Ms Gooley?

PN32

MS GOOLEY: In that, your Honours and Commissioner, my friend is correct. We have not come here and suggested that we suffer prejudice that this comes as a surprise to us and we have filed out submissions recognising that. We say that in relation to the issue of whether conciliation should have occurred prior to arbitration, that was fairly before the appeal when the appeal was first lodged. We say that the issue of Vice President Ross, what ever decision Vice President Ross made is not relevant to these proceedings and leave to appeal to the extent that it raises those matters is not something that should be of concern to this Full Bench if my friend wants to appeal the decision.

PN33

And we do put the argument that there is no evidence before you to suggest what the decision of Vice President Ross was in the circumstances. And there has been no appeal by either party of the failure of Vice President Ross to publish reasons in relation to this matter. And if either of the parties wish to do so, then they are free to appeal the decision of Vice President Ross. We say in relation to the issue of procedural fairness, that that is a matter that was first raised, I think, by your Honour suggesting at the stay application that that matter was not in the appeal grounds that were filed. We can't point to any prejudice in relation to that matter but in our primary submission given that leave to appeal, we say, should be rejected, so should leave to amend the application.

PN34

And it is proper that parties who are faced with a situation where they have 21 days to file an appeal in matters before this Commission, that they place their reasons before the Commission at first instance. This is not the situation that was found in the case referred to by my friend where a new ground of defence was discovered late in the proceedings and the applicant made application to amend their defence. These issues were squarely before the appellant when they filed their appeal and their failure to raise those matters at first instance, in fact, mirrors their failure to raise matters at first instance before Commission Cargill and therefore, leave to amend should not be granted.

PN35

SENIOR DEPUTY PRESIDENT MARSH: Yes, we are prepared to grant the application to amend the grounds of appeal. Thank you, Mr Blackburn.

PN36

MR BLACKBURN: Thank you, your Honour. Your Honour, as I indicated, grounds 1, 2 and 3 of the amended grounds of appeal essentially go to the same point. They raise a simple jurisdictional question: was the Commissioner entitled to proceed to arbitration without conciliation? In our submission, the whole appeal can be determined simply on that point. And that has been expanded upon in our outline of submissions and I refer you to those.

PN37

For the purpose today of perhaps dealing with them in a more summary fashion, given that your Honours and Mr Commissioner have had the benefit of those, or hopefully the benefit of those submissions, I would take you first to - - -

PN38

SENIOR DEPUTY PRESIDENT MARSH: Yes, we have thank you and we have read them so you can proceed on that basis.

PN39

MR BLACKBURN: Thank you. Thank you, your Honour.

PN40

SENIOR DEPUTY PRESIDENT MARSH: Thank you.

PN41

MR BLACKBURN: Now, what I meant by that was I hoped that they would have been of help to you. I was sure that you had read them. Now if I can take your Honours and Mr Commissioner first to section 113(4) of the Act, and what I propose to do by way of answer to this question of, was the Commissioner entitled to arbitrate without conciliating is simply to go through the relevant sections of the Act. And the first one is section 113(4). The section says:

PN42

This Act applies in relation to applications and proceedings in relation to applications for the setting aside or variation of awards in the same manner as far as possible as it applies in relation to industrial disputes and proceedings in relation to industrial disputes. And for that purpose, such an application shall be treated as if it were the notification of an industrial dispute.

PN43

So the effect of this section, quite clearly in our submission, is to require the Commission, when dealing with an application to vary an award, to adopt as far as possible, the procedures prescribed by the Act for the settlement of industrial disputes. Including the procedures relating to conciliation. There is no suggestion, nor could there be any suggestion, that it was not possible in this case to exercise conciliation powers. This was an arbitration, the same as any other arbitration. Arbitrations commonly proceeded by conciliation, in fact, are required to be so.

PN44

So where as in my friend's outline of submissions it is suggested that conciliation was somehow not relevant, conciliation was entirely relevant in this case and in fact, was required and it was certainly possible. There was no reason why, nor has any reason been suggested as to why the Commission could not have referred the matter for conciliation. Whether that involved a conciliation proceeding over which the Commissioner herself presided, or simply a direction to the parties to go away and have discussions, as envisaged in, I think, section 102, I think it is.

PN45

SENIOR DEPUTY PRESIDENT MARSH: Was it relevant that no party asked the Commissioner for a reference to conciliation?

PN46

MR BLACKBURN: Well we actually take issue with that. But if that was the case, if the party did ask the Commissioner, then we say it is not relevant in any event because the duty to conciliate is one that is cast upon the Commission in, we say, mandatory terms. In fact, it is a jurisdictional pre-condition to arbitration. And that appears in section 104. The Commission is only entitled to arbitrate once the conciliation proceeding is completed and section 103 sets out when a conciliation proceeding may be regarded as completed.

PN47

So we say that the duty was cast upon the Commissioner, irrespective of whether any party sought conciliation. She had a duty either to conciliate or to form one of the opinions referred to in section 103, that is, to form the view that conciliation would not further assist, before she went on to arbitration. In any event, we say, your Honour, in response to your question also, that in this case, the appellant did in fact request conciliation and did so at two points. And the first occasion, if I can take your Honour to the transcript; it is a short transcript. The whole matter appeared to take 17 minutes so hopefully the appeal can be dealt with expeditiously also.

PN48

Now at paragraph 30 of the transcript, Mr Brunner, who was representing the appellant said:

PN49

It is immaterial, Commissioner, whether the AWU has reached agreement with any other parties, they have not reached agreement with us.

PN50

That is paragraph 30:

PN51

The requirement is for them to discuss it and have some sort of interaction with us before the matter proceeds. The Act requires that.

PN52

Now that was before the Commissioner had indicated which way she was going to rule. And we say that was a direct reference to the requirement for conciliation. In fact, if I take your Honours and Mr Commissioner to section 102(2) of the Act, it is clear that conciliation powers can be exercised by a member of the Commission, either arranging conferences presided over by the member. Or, by arranging for the parties to confer among themselves, i.e. to hold discussions among themselves.

PN53

So where Mr Brunner there is saying that there is a requirement in the Act for the parties to discuss the matter and have some sort of interaction, we say that that is not a bad reflection of the true position. And in context and to parties that are familiar with the Act, that can only be a reference to conciliation, in our submission. So we say that in fact it was raised. Mr Brunner's submission that the Act required there to be discussions or some sort of interaction before the matter proceeded, the hearing was, in our submission, an adequate reference to conciliation and ought to have put, with respect, the Commissioner of notice to the requirements of the Act in that regard. Further then, your Honour, - - -

PN54

SENIOR DEPUTY PRESIDENT MARSH: Mr Blackburn before you move on, just the paragraph before, Mr Brunner sets out the factual position that he is in as of that day and that is that he is not there to object or otherwise to the application because the Executive hasn't met.

PN55

MR BLACKBURN: Yes.

PN56

SENIOR DEPUTY PRESIDENT MARSH: So the Executive hasn't formed a view.

PN57

MR BLACKBURN: That is right.

PN58

SENIOR DEPUTY PRESIDENT MARSH: But I think either in that paragraph or somewhere else, he said: but if I am forced to, our position will be to object because we haven't formed a view.

PN59

MR BLACKBURN: No, he actually said that in a letter to the Commission, I think, dated the 14th.

PN60

SENIOR DEPUTY PRESIDENT MARSH: That was a letter of the 12th or whatever?

PN61

MR BLACKBURN: 14 July, I think, yes.

PN62

SENIOR DEPUTY PRESIDENT MARSH: That is it, yes.

PN63

MR BLACKBURN: He didn't say that on this day.

PN64

SENIOR DEPUTY PRESIDENT MARSH: No.

PN65

MR BLACKBURN: On this day, his position was clear.

PN66

SENIOR DEPUTY PRESIDENT MARSH: The decision is yet to be made by the Executive, we're not here to object or otherwise.

PN67

MR BLACKBURN: Exactly.

PN68

SENIOR DEPUTY PRESIDENT MARSH: Yes.

PN69

MR BLACKBURN: Exactly. And he makes that very clearly at, I think paragraphs 20 through to 23, where he re-states it on several occasions. He says, at paragraph 20:

PN70

I can't proceed the matter until I obtain an instruction. Following that, we would anticipate some brief discussions with the AWU, I assume, on the basis of whether or not we do have an objection, we would...

PN71

at paragraph 21:

PN72

...at this juncture, seek to adjourn the proceedings so I can seek instructions from my Executive and some meaningful discussions can take place.

PN73

At paragraph 23:

PN74

I cannot comment on whether we oppose the application or not until I seek that formal instruction.

PN75

So on this day before the Commissioner, he is very clear that he has no instructions on the point.

PN76

SENIOR DEPUTY PRESIDENT MARSH: And what is the position now, has the Executive met?

PN77

MR BLACKBURN: Yes, your Honour, the Executive has met.

PN78

SENIOR DEPUTY PRESIDENT MARSH: Yes.

PN79

MR BLACKBURN: And has resolved, given the opportunity obviously, to pursue this appeal, but given the opportunity to have discussions with the AWU, try and take advantage of the conciliation processes and if the matter cannot be resolved by conciliation, to seek some variation or some variation to the order of the Commission.

PN80

SENIOR DEPUTY PRESIDENT MARSH: So the position of the Executive is to oppose the flow on of the order?

PN81

MR BLACKBURN: Yes. Yes.

PN82

SENIOR DEPUTY PRESIDENT MARSH: Yes.

PN83

MR BLACKBURN: But also to be available for conciliation, to seek to have conciliation to see whether the matter and its concerns can be addressed by conciliation.

PN84

SENIOR DEPUTY PRESIDENT MARSH: Yes.

PN85

DEPUTY PRESIDENT McCARTHY: Mr Blackburn, while we're on those sort of issues, did Mr Brunner have any form of delegated ongoing authority from either the Executive or is it a Council or what ever of the - - -

PN86

MR BLACKBURN: No, your Honour. The rules of the union are clear in that the - well, sorry, this doesn't particularly answer your question. Mr Brunner is the Secretary and the rules provide that the Secretary shall perform the duties allocated to it from time to time by the Executive. What Mr Brunner did say repeatedly in those paragraphs to which I referred, was that he had no authority. Well that is implied because what he said was, was that he was unable, he had no instructions.

PN87

DEPUTY PRESIDENT McCARTHY: So it is fairly common for organisations to have an ongoing delegated authority. That does not exist here or it didn't exist?

PN88

MR BLACKBURN: No, your Honour, not in terms of carte blanche to decide the matter and act and form a position. And what Mr Brunner says in his affidavit on which I seek to rely, he says, at paragraph 15 of his affidavit that:

PN89

It is the practice of the association for the time that he has been Secretary, the claims raised by the union, whether they be general logs of claims or applications to vary the award, to be considered by the Executive prior to any formal responses being made to such claims.

PN90

So if we take that along with his - - -

PN91

DEPUTY PRESIDENT McCARTHY: Is there a capacity within the rules for delegation of that authority?

PN92

MR BLACKBURN: There is capacity within the rules for the Secretary to perform functions conferred on it by the Executive. The specific rule 21A(d) says simply:

PN93

The Secretary shall be responsible for reporting and keeping minutes of all meetings of the Association and for carrying out all such other duties as may be required by the Executive Committee from time to time.

PN94

Well, we can have a discussion perhaps about how far that rule might extend, but in this case in any event, your Honour, there was no authority. I'm advised by Mr Brunner that he has no specific instructions to deal with these issues as indicated on the transcript before Commissioner Cargill, he was not in a position he had no instructions in respect of this matter on that day.

PN95

Coming back, if I may, to your Honour, question about the fact that conciliation had not been raised. Well, we say firstly as I've indicated, that it had been raised in paragraph 30 when Mr Brunner pointed out that the Act required there to be discussions before the matter proceeded. Then, of course, it was raised again once it became apparent that the Commissioner was minded to proceed to arbitrate, Mr Brunner raised it again at paragraph 38 where he specifically referred to section 100 requiring conciliation to proceed.

PN96

So we say that the matter was raised. In any event, even if it had not been it wouldn't have mattered because the obligation to conciliate is on the Commission and it is a jurisdictional fact, which section 104 requires to be met before the matter can proceed to arbitration. So as I've indicated, your Honours, Mr Commissioner, in going through the Act section 113(4) is the starting point. The effect of that section is to require the Commission when dealing with an application to vary an award to adopt the procedures prescribed by the Act for the settlement of industrial disputes and they obviously include conciliation. In fact, conciliation is a very important procedure prescribed by the Act for the settlement of industrial disputes. Now the importance of conciliation is reinforced by two sections of the Act, in particular, well firstly section 3(h), the Principal Objects of the Act, which include:

PN97

- enabling the Commission to prevent and settle industrial disputes as far as possible by conciliation and where appropriate and within specified limits by arbitration.

PN98

That is reinforced in section 89(a), which states:

PN99

The functions of the Commission are (a) to prevent and settle industrial disputes (1) so far as possible by conciliation and (2) as a last resort by arbitration.

PN100

That is how the Act requires the Commission to prevent and settle industrial disputes. So if we read section 8 and 9(a) together with section 113(4), the effect is that section 113(4) requires an application to vary any award to be treated as if it were the notification of an industrial dispute and to be conciliated so far as possible and arbitrated as a last resort. That is by simply section 89(a) and 113(4) together. Now the same conclusion can be reached by following the specific steps which the Act prescribes for the prevention and settlement of industrial disputes. We start with section 100. Section 100 subsection (i) provides that:

PN101

Where a dispute is notified or an alleged dispute is notified, or the relevant presidential member otherwise becomes aware of the existence of an alleged dispute, the relevant presidential member shall, unless satisfied it would not assist the prevention of settlement of the dispute, refer it to the conciliation.

PN102

Section 100, subsection (ii) reinforces that by saying that:

PN103

If the presidential member does not refer the alleged dispute for conciliation then he or she must publish reasons for not doing so.

PN104

And the Commission must then deal with the dispute by arbitration. So it is to be inferred in this matter in the absence of Vice President Ross having published any reasons pursuant to 102(a), that the matter was referred to the Commissioner for conciliation. So that leads us to section 102, which provides that:

PN105

Where an industrial dispute is referred to conciliation, a member of the Commission shall do everything that appears to the member to be right and proper to assist the parties to assist the parties to agree on terms.

PN106

In this case, Commissioner Cargill, with respect, did nothing to assist the parties to agree on terms. She completely ignored the duty that was imposed on her by section 102 and by section 113(4) and she did so, as it appears in the transcript, because of her belief that sections 100 presumably through to 104, 103, only applied to industrial disputes and didn't apply to the variation that was before her. Section 102 subsection (ii) sets out the ways in which the Commission - or two ways, it is not exclusive, but two ways in which the Commission may exercise conciliation powers.

PN107

Section 103 then reinforces the requirement for conciliation before arbitration because it says that:

PN108

A conciliation proceeding should be regarded as completed and by inference shall only be regarded as completed when (a) the parties have reached agreement and that agreement has been certified or (b) whether or not the parties have reached agreement (i) the member of the Commission is satisfied there is no likelihood within a reasonable period conciliation will result in agreement or (ii) the parties have informed the member there is no likelihood of agreement and the member does not have a substantial reason to refuse to regard the conciliation proceeding as completed.

PN109

Now in this case, while the respondent, the AWU, informed the Commission that there was no likelihood of agreement, the appellant did not say that, the appellant said: We don't know what our position is because we haven't had the opportunity for our Executive to meet. It may well have been, for the Commissioner knew, that once the executive had met it might have decided to agree to the application and the matter would have proceeded by consent. Or else there might have been a small variation sought which the appellant may have agreed to in the same way - which the respondent union may have agreed to in the same way that it agreed to vary its original order after discussions with another employer group. So the Commissioner was not in a position, in our submission, to form the view that there was no likelihood of agreement or further agree, but in any event she didn't turn her mind to those matters anyway.

PN110

DEPUTY PRESIDENT McCARTHY: Mr Blackburn, the sequence within the Act and the steps with respect to conciliation and arbitration. Is it possible that at the one hearing both functions could be conducted?

PN111

MR BLACKBURN: Yes, I would think so, except that they are distinct. The Commission would need and this is confirmed by decisions, I think, such as Beatrice, there would need to be a clear delineation, a clear demarcation of the two proceedings. So the Commission would have to clearly indicate the point at which the conciliation proceeding had been exhausted and arbitration was to commence. So that, for example, a party could seek to exercise its rights under section 105, for example, to ask the member who had exercised conciliation powers to not exercise the arbitration powers.

PN112

There have been decisions of the Commission and, in fact, of the High Court, I think. I think Beatrice is a High Court case from memory, which have emphasised the need for there to be that clear delineation so that the rights conferred by section 105, for example, are not lost.

PN113

DEPUTY PRESIDENT McCARTHY: Yes, but it is possible in these proceedings that conciliation was actually conducted and maybe Commissioner Cargill formed the view during those proceedings that it satisfied 103(1)(b)(i).

PN114

MR BLACKBURN: Well, firstly, your Honour, the notice of hearing indicated that the matter had been listed for hearing. Secondly - - -

PN115

DEPUTY PRESIDENT McCARTHY: It didn't say "hearing for conciliation", or "hearing for arbitration".

PN116

MR BLACKBURN: It was listed for hearing.

PN117

DEPUTY PRESIDENT McCARTHY: Yes.

PN118

MR BLACKBURN: And secondly, the transcript indicates that that was not Commissioner Cargill's position at all. If one goes to the last few paragraphs of the transcript where Mr Brunner points the Commissioner to section 100 and he says at paragraph 38:

PN119

If it please the Commission, section 100 requires conciliation to proceed unless you are of the opinion that it won't assist the parties.

PN120

And the Commissioner says:

PN121

I think that is in relation to an industrial dispute, Mr Brunner?

PN122

And Mr Brunner says at paragraph 40:

PN123

Section 113 does refer to the fact that the Commission must proceed on the basis that the application is in the form of an industrial dispute.

PN124

And the Commissioner says:

PN125

Well, Mr Brunner, I've made my decision.

PN126

So we say it is clear from paragraphs 38 through to 41 that the Commissioner misconceived the nature of her jurisdiction. She thought that the requirement to conciliate didn't apply in this case and that section 100 and the requirement to conciliate applied only in relation to an industrial dispute which is paragraph 39. She did not accept the submission that section 113 subsection (4), although Mr Brunner did not refer to the specific subsection, she did not accept the submission that section 113(4) required the matter to be dealt with as if it were an industrial dispute.

PN127

So we say that on a fair reading of the transcript there is no basis on which there is any conclusion other than that the Commissioner misunderstood the nature of her jurisdiction. Even if she did not, there in our view, no basis, in our submission, no basis for the suggestion that she formed a view as to the likelihood of conciliation. She simply couldn't have formed a view in any event, even had she attempted to do so because the only submissions before her from the appellant were that its Executive hadn't had time to meet. Mr Brunner didn't know whether the Executive would agree or oppose the claim.

PN128

So it simply would not have been possible for the Commission to form a view about the likelihood of conciliation even had she turned her mind to it. We say there is no evidence that she did turn her mind to it. In fact, the transcript indicates that she was of the view that she didn't need to. So we say that in the absence, having regard to section 103, in the absence of agreement being reached, the Commissioner was only entitled to regard conciliation as completed if satisfied that there was no likelihood that within a reasonable period conciliation would result in agreement and that didn't occur.

PN129

Section 104 perhaps is the most critical of all the sections because it contains the jurisdictional fact that pre-conditions the exercise of arbitration. The concept of jurisdictional fact has received quite a lot of attention in this Commission in recent times, particularly in the context of applications seeking to certify agreements and so forth. So the concept is now very well understood. Section 104(1) begins with the words:

PN130

When a conciliation proceeding before a member of the Commission in relation to industrial dispute is completed, the Commission shall proceed to deal with the industrial dispute or the matters remaining in dispute by arbitration.

PN131

Now, when a conciliation proceeding "is completed". As I've indicated, section 103 sets out the circumstances in which a conciliation proceeding may be regarded as completed. So that requirement, that conciliation be completed, is a jurisdictional fact which conditioned the exercise of the Commission's power to arbitrate. Without that, there was no ability to arbitrate. Without that, there could be no valid arbitration proceeding. That is what we say in this case, there was no valid arbitration proceeding, because the jurisdictional fact on which it relied had not been met.

PN132

So in summary, we say that it is clear from the transcript those passages to which I just referred your Honour at paragraphs 38 to 41, that the Commissioner misconceived the duty which section 113(4) cast upon her. As a result, by refusing to conciliate or to consider whether there was a likelihood that conciliation would result in agreement, she failed to exercise her jurisdiction contrary to section 102. And by proceeding to arbitrate without a conciliation proceeding being completed, she exceeded her jurisdiction contrary to section 104. As a consequence there was no valid arbitration proceeding before the Commission.

PN133

It is for that reason that this appeal should be granted and leave to appeal should be allowed. It is well established that a substantively founded case for error in the finding of a jurisdictional fact will ordinarily result in the grant of leave to appeal. A couple of authorities will support that point as set out in our outline of submissions. The argument though, is not simply a technical one. Conciliation is, in our submission, a central tenet of the legislation. Parties who come before the Commission have a right, subject to the sections set out in the Act to expect that matters will be conciliated before arbitration.

PN134

This Commission used to be called the "Conciliation and Arbitration Commission". Conciliation is one of two functions specifically set out in the constitution. So the requirement to conciliate is not only an express requirement in sections 100 through to 104, but it is also consistent with the scheme and the objects of the Act. The right to conciliation doesn't depend on whether the Commission considers a party has a strong case. All parties are entitled to conciliation, subject to the stated exceptions. The right applies in proceedings for the inclusion of a test case, just as it does in any other arbitral proceeding.

PN135

It is, in our submission, an important right that shouldn't be minimised.

PN136

SENIOR DEPUTY PRESIDENT MARSH: Mr Blackburn, when a member of the Commission is dealing with a consent position to make or vary an award is it exercising a conciliation power or an arbitration power?

PN137

MR BLACKBURN: Yes. No, I would submit it is exercising conciliation power.

PN138

SENIOR DEPUTY PRESIDENT MARSH: Yes.

PN139

MR BLACKBURN: So in respect of the other respondents who were consenting it was conciliation and we take no issue with that. In fact, we say that in terms of a remedy, if we are successful, it is possible to sever that part of the matter because that could be said to have relied upon the Commission's conciliation power and there was no jurisdictional difficulty with that.

PN140

SENIOR DEPUTY PRESIDENT MARSH: So with respect to - it just gets a bit schizophrenic, doesn't it?

PN141

MR BLACKBURN: Yes.

PN142

SENIOR DEPUTY PRESIDENT MARSH: On the day, the Commissioner was exercising her conciliation power to the extent that she had, dealing with the consent decision from all respondents where the - - -

PN143

MR BLACKBURN: From the other respondents, yes.

PN144

SENIOR DEPUTY PRESIDENT MARSH: Yes, from the other respondents.

PN145

MR BLACKBURN: Yes.

PN146

SENIOR DEPUTY PRESIDENT MARSH: Where the difficulty arises is in respect to one respondent, not agreeing to the variation.

PN147

MR BLACKBURN: That is right.

PN148

SENIOR DEPUTY PRESIDENT MARSH: Not consenting to the variation, at which state if she was to deal with the objection she would have had to, although she was exercising conciliation powers, she still should have conferred those respondents or those parties into conciliation in the conference sense.

PN149

MR BLACKBURN: If necessary the matter could have ended - - -

PN150

SENIOR DEPUTY PRESIDENT MARSH: And if necessary, arbitration to resolve the competing claims.

PN151

MR BLACKBURN: Yes. That is often done, the matter will be divided and parties who are in dispute will be put to one side and perhaps dealt with later.

PN152

SENIOR DEPUTY PRESIDENT MARSH: Yes, thank you.

PN153

MR BLACKBURN: Your Honours, Mr Commissioner, that deals with grounds 1 to 3, the simple question of whether the Commission was entitled to arbitrate. We say the matter can be resolved easily on that basis. Obviously if that proposition is made out then there is no need to consider the remaining grounds of appeal.

PN154

Ground 4 is put in the alternative and I don't propose to spend any more time on it. That is in the event that it is set against as well. Vice President Ross somehow referred the matter for arbitration, so Commissioner Cargill did not err. We say, well there would have been no ability to do that. In any event, as we say our primary position is that it ought be inferred that the matter was referred to conciliation because his Honour did not issue any decision in accordance with section 102 to indicate that it had been referred for anything other than conciliation.

PN155

The remaining ground is ground 5. I would also, though I don't propose to take your Honours, Mr Commissioner, to the submissions now, also refer you to the outline of submissions which contain some authorities on the question of the principles to apply in dealing with an appeal on a question of jurisdictional fact and which also refer to some of the authorities on jurisdictional facts and the proper approach to those sorts of matters. In terms of the question that your Honour put a moment ago about the ability to sever and my comments about the ability to sever that part of the matter which related to the other award respondents.

PN156

There was a recent decision of the Full Federal Court in re AIRC ex parte Smith, handed down on 11 October. If I may, I will hand up copies of that decision. I don't propose to go to it in detail but what the decision does do at paragraphs 86 to 88, it contains a discussion of the powers of the court or tribunal or in fact, the Industrial Commission, to sever those parts of an order that are not tainted by jurisdictional error. We say that in accordance with what is said there that there is no reason why the Commission's order cannot be set aside only to the extent that it applies to the appellant.

PN157

SENIOR DEPUTY PRESIDENT MARSH: I think it is true to say it is done in the day to day work of the Commission in any event, as you indicated in response to the question from me.

PN158

MR BLACKBURN: Yes. My comment in this authority is directed more to the point of well, the order has now been made. It is a single order. If there is jurisdiction there, can it now be said and I say: well, yes, it can and I think this decision of those paragraphs provides some support for that proposition.

PN159

SENIOR DEPUTY PRESIDENT MARSH: Yes, I see. Thanks.

PN160

MR BLACKBURN: Your Honour, the remaining ground of appeal deals with the question of procedural fairness. We say that the Commissioner's decision to list the matter at short notice and in breach of its own rules and then to refuse the appellant's request for an adjournment, so that the appellant's executive was unable to meet to consider the application and the appellant was unable to formulate a position, resulted in the appellant and its members being denied procedural fairness. And for that matter, resulted in those persons who the appellant, by virtue of the order for substituted service that was ostensibly represented, also being denied procedural fairness.

PN161

Your Honours, Mr Commissioner will be aware that this award contains several thousand respondents. An order for substituted service was sought, resulting in the applicant union having to serve only eight organisations instead of the thousands of respondents. So the representative function that was performed by the appellant in this case extended beyond simply itself and its members and to be able to extend to those people who, by virtue of the order of substituted service, were denied even seeing the application at all. The matter, as we've set out in the outline at paragraph 46, was listed for hearing by the Commission on 20 July.

PN162

The Commissioner was required by rule 74 of the Commission's rules and if I take your Honours, Mr Commissioner to rule 74, this is a rule that was considered by a Full Bench in Monadelphous, a case that we've referred to in the outline. Now, in paraphrasing rule - in setting out part of rule 74 in the outline, I don't think I've done it justice because what 74(1) says:

PN163

If the Commission is required to fix a time and place for hearing the matter, the Commission must -

PN164

and those words have been omitted from the outline -

PN165

the Commission must fix a time that is at least 10 working days after a registrar is able to give notice of the time or place of a ...(reads)... case requires, the parties to the proceedings or, in this case, a party required to serve notice on another party.

PN166

So the Commission must fix a time at least 10 working days after the Registrar was able to give notice. Now, the phrase "at least 10 working days after" means, in our submission, 10 clear working days, exclusive of the day on which the notice is given and the day of the hearing. There must be 10 working days between the giving of the notice and the date of the hearing. And that is a reasonably well settled construction. It is cited in the outline Pearce v Geddes and also the decision in ex parte McCants re Hobbes.

PN167

That decision has been included in the authorities. It is number 3 on the list. If I could take your Honours, Mr Commissioner, to that matter, in this case at page 37 of the report, Street CJ said at the beginning of the second paragraph in page 37, he noted that the subsection that was being interpreted in that case required that:

PN168

An applicant shall give notice of his intention to apply at least 14 days before he applies and the question is what meant by the words 'at least 14 days before".

PN169

At the bottom of page 39, his Honour refers to the use of the words "at least" and he says:

PN170

We cannot assume that they were introduced for no purpose at all. Some meaning must be given to them and the only meaning ...(reads)... that they were introduced to make it plain that notice was to be given 14 clear days before the application was made.

PN171

And then his Honour referred to an earlier decision of Chitty J, which held that the interval of not less than 14 days which was to elapse between two meetings, meant 14 days, 14 clear days exclusive of the respective days of the meetings. Chitty J said:

PN172

In that case it is no wonder to my mind that persons who do not read statutes with care and have not legal knowledge at their ...(reads)... and I consider now that the rule is settled and I'm not at liberty to depart from what has been already laid down.

PN173

And Street CJ in this case, with whom the other Justice concurred said:

PN174

In like manner, I think that the rule that, when an interval of at least so many days is provided for, that means clear days, is now well settled and I think that it is a rule to which we should adhere.

PN175

So that case is authority for the proposition that when a statute or a regulation refers to at least 10 working days after, it means 10 clear working days exclusive of the day on which the notice was given and the day of the hearing. Now, in this case the Commissioner signed the notice of listing on 7 July and faxed the notice of listing to the union on the same day. And the notice of listing is attached to the affidavit of Philip Brunner but it is also, of course, on the Commission's record. So the notice of listing was provided on Wednesday 7 July. In order to comply with rule 74, the Commissioner was required to fix a time that was not before Thursday 22 July.

PN176

That would have allowed for 10 clear working days between the notice of listing being given and the meeting, Thursday the 22nd. In fact the matter was listed on Tuesday 20 July and so the Commission acted in breach of rule 74 because the matter was listed only 8 clear working days after the Registrar was able to give notice. Now, that failure is only one of the matters on which we rely to argue that, in all the circumstances, the appellant was denied natural justice. And what Monadelphous shows, the decision of the Full Bench in Monadelphous, is that a failure to comply with rule 74 is a material factor in determining whether a party has been denied procedural fairness. In Monadelphous the Full Bench, that is print Q6273, the Full Bench at page 6 in my copy of the print said that:

PN177

In our view the appellants in that case were not given a fair go in expressing this view -

PN178

I'm not sure which copy it will appear on pages that your Honours have. On my copy printed off the Internet, it appears on page 6 of the print where the Full Bench early on goes through the various - - -

PN179

SENIOR DEPUTY PRESIDENT MARSH: Yes.

PN180

MR BLACKBURN: It goes through the history of the matter. Then it cites a long passage from the Fruit Preservers case and the decision of the Full Bench in Fruit Preservers.

PN181

SENIOR DEPUTY PRESIDENT MARSH: Yes.

PN182

MR BLACKBURN: And then after considering all the authorities, it comes to the quote from Mobil Oil.

PN183

SENIOR DEPUTY PRESIDENT MARSH: Yes.

PN184

MR BLACKBURN: Which was the appropriate course for us to take is to determine whether proper standards of fairness were applied. Was the union given a fair go.

PN185

SENIOR DEPUTY PRESIDENT MARSH: It is page 10 on my copy.

PN186

MR BLACKBURN: Thank you. And the Full Bench in Monadelphous says:

PN187

In our view the appellants were not given a fair go.

PN188

In expressing this view, it had regard to the circumstances and in particular to rule 74 of the Commission's rules. So rule 74 and the failure to comply with rule 74 was a material factor in determining, in this case, whether the employer had been denied procedural fairness. While we're at this case I would just perhaps finish with it. The rule is then set out and subrule (3) of rule 74 says that:

PN189

A failure to comply with the subrule does not affect the validity - subrule (1) does not affect the validity of any act done by the Commission in relation to the matter.

PN190

The Full Bench in Monadelphous said about that a little later on:

PN191

Subrule (3), upon which the CEPU relied, does not provide an answer to the claim that a denial of procedural fairness arose from a failure to comply with subrule (1). The validity of Commissioner Merriman's decision is not an issue.

PN192

The Full Bench then goes to make some other comments which, it will be seen, are pertinent to this matter because the same sort of arguments have been put against us here. The Full Bench said:

PN193

Having regard to rule 74, the appellants were, in the circumstances of this matter, entitled to expect they would get substantially more than two working days of the notice of hearing.

PN194

In this matter the appellant had 5 working days. The Full Bench said in Monadelphous:

PN195

It is, we think, no answer to the appellant's complaints based on rule 74 that they have been sent the demand and log in mid-June. ...(reads)... advise the Commission of their position before they received the notice fixing the time and place and date of hearing.

PN196

You see, in this case it is said against us: oh well, you would have been aware of the decision of the Full Bench in the redundancy case. You would have had to have expected that at some point the AWU would have sent you an application seeking to flow on that decision, so you had all this prior notice. But as the Full Bench in Monadelphous pointed out in response to a similar argument, the employer was under no obligation to advise the union of his response. The employer was under no - the appellant in this case was under no obligation to do anything until such time as it received the application from the union. In Monadelphous the Full Bench also says:

PN197

Neither, we think, is it an answer that CCI's faxes of the 14th and 15 July 1998 did not indicate the grounds on which the appellants wished to oppose a disputes finding.

PN198

They were entitled to oppose a finding. They sought an adjournment to do so in circumstances where they received only 2 working days notice of the hearing. That a South Australian company, SDS Osminco, was able to be represented at the hearing is, we think, irrelevant. It didn't seek an adjournment and it did not oppose the dispute finding. That is another argument that is put against us, that other employer organisations were able to form a view.

PN199

Finally, we do not think that Queensland v Reardon assists the CEPU, because the CEPU then tried to make submissions; in any event the appellants in Monadelphous wouldn't have been able to successfully oppose a dispute finding and that the Full Bench said:

PN200

That is not the issue. The issue before us is whether the appellants were denied procedural fairness.

PN201

Not whether the service on them of a demand and log, to which they did not accede, created an industrial dispute. Whether there was a dispute was a matter about which they sought to be heard. Whether their opposition was a sham and not genuine, as the CEPU submitted, would then be determined, the Full Bench saying:

PN202

That is not the issue before us. We are accordingly of the opinion that the appellant's submission that they were denied ...(reads)... of such importance that in the public interest, leave to appeal should be granted and the appeal should be allowed.

PN203

Now, your Honour, coming back to then to the outline. The circumstances of this case, at paragraph 53, we say that the effect of the Commission's failure to comply with rule 74 was that the appellant was effectively prevented from considering and responding to the claim. It was the Commission's noncompliance with rule 74, coupled with the way the union approached the matter and then coupled with the rules of the appellant itself, which all contributed to the result being the appellant turned up at the hearing with no instructions, not having been able to obtain any instructions.

PN204

In relation to the service of the claim and notice of listing, the union did not notify, did not forewarn, did not seek to discuss the claims with the appellant before formally serving the claim. What happened was the union waited until it got the notice of hearing, put it all in one envelope and mailed it from Sydney to Perth, which of course then meant a further delay. And as a result, the first the appellant knew about this entire application was on 12 July. The union had not made any attempts to discuss the matter with the appellant before then or even to notify it or warn it that an application was headed its way.

PN205

Having received the notice of listing from the Commission on 7 July, the union on 8 July put it in the post along with the claim and so the appellant received the application, received the notice of hearing and had 5 working days in which to form its position and front up. And of course that it is not only substantially less than the 10 working days that are contemplated by rule 74, but it also had the effect in this case of preventing the appellant's executive from having a reasonable opportunity to meet to decide its position.

PN206

Now it is of significance and we say this at paragraph 64 and 65. It is of some significance, some considerable significance that in this case the appellant is a registered organisation of employers pursuant to schedule 1B of the Act. And that is significant because the principal objects of schedule 1B are, and these are set out at paragraph 65 of our outline: To ensure that employee and employer organisations are representative of and accountable to their members and are able to operate effectively. Well, you can only be representative of and accountable to your members if you have time to confer with your members before dealing with applications and claims that are made against you. (b) of the principal objects, to encourage members to participate in the affairs of organisations to which they below.

PN207

That also requires time for those members to be notified about a claim and to meet to discuss the claim. (c) of the principal objects, to encourage the efficient management of organisations and (d) to provide the democratic functioning and control of organisations. Now, all of those objects are severely impaired if a matter is allowed to proceed in the way that this matter proceeded. That is, you serve a claim, together with the notice of hearing on a registered organisation which has some 800 - 780 members and you give it 5 working days to formulate its position and front up.

PN208

That process meant that the appellant was not able to operate, was not able to confer with its members, was not able to be representative of or accountable to its members. It was simply required on the day to advise the Commission of what its position was and of course it couldn't do that. Now, in accordance with those principal objects in section 5 of schedule 1B, the appellant as a registered organisation is required to have rules which provide for, among other things, the powers and duties of the committees of the organisation and the manner of summoning meetings.

PN209

The rules are attached to the affidavit of Mr Brunner. They are attachment - annexure F to the affidavit of Mr Brunner, on which we rely. Now, if I can take your Honours, Mr Commissioner, to those rules. Rule 20 of the registered rules vest the management of the appellant's affairs in an executive committee, subject to the control of the members and general meeting. Now, rule 22 sets out the specific powers of the executive committee and rule 22A:

PN210

To adopt such measures as the executive may from time to time deem expedient, to give effect to the objects of the association.

PN211

Rule C, to make demands or claims in connection with industrial matters and to submit claims, industrial disputes or questions as to any industrial matter to the Commission for conciliation and arbitration. And the objects are also set out in rules 4A, Q and R, which are relevant objects and I won't take you to those. Rule 22, subrule (3) deals with meetings of the executive. I begin with rule 23, subrule 1:

PN212

The executives will meet at such date determined by the Chairman or his deputy of the dispatch of business. The Chairman or in his absence the Vice Chairman, shall be empowered to convene special meetings of the executive as may be deemed necessary.

PN213

And then at rule 2:

PN214

At all meetings of the executive, the Chairman shall preside etc.

PN215

And rule 3:

PN216

At least 7 days before the date of a meeting of the executive, the Secretary shall give each member of the executive notice in the manner prescribed by rule 35 of the date, time and place in which the meeting was to be held.

PN217

Now, the first point we make about that is, a suggestion has been made and the AWU has outlined that notice is not required for special meetings of the executive. The power to convene a special meeting is set out in rule 23, subrule (1). Our submission about that is if one reads the rule in its entirety it is clear, in our submission, that subrule (3) refers to any meeting of the executive. Subrule (1) says:

PN218

The executive shall meet as determined by the Chairman. The Chairman shall be empowered to convene special meetings.

PN219

And subrule (3) then says at least 7 days before the date of a meeting. In our view that should be read as referring to a special meeting or any other meeting of the executive. The phrase "at least 7 days before" the date of a meeting, at least 7 days before, again on the basis of the authorities to which we referred, means at least 7 clear days exclusive of the day in which the notice is given and the date of the meeting. Now, rule 35 which is referred to in rule 23(3) indicates that notice of a meeting can be given either personally or by telephone or by post. So the effect of all that is that once the appellant received the notice of listing in the application on 12 July, the earliest day on which it could have convened a meeting in accordance with its rules was 20 July. The hearing was listed for 9 am on that day. So while it may technically have been possible for the appellant to have convened a meeting prior to the hearing listed at 9 am, in a practical sense it wasn't.

PN220

So we say that the combined effect of - and in the event the executive would have needed to have met. It would have needed to have determined its position, having just been apprised of the matter all in the one meeting. But in any event we say it was not, in a practical sense, possible for the executive to meet in the time that was allowed to the appellant. So we say the combined effect of the Commissioner listing the matter at short notice and in breach of rule 74, the union serving the notice of listing interstate by post, together with the claim for the first time, having never raised the matter beforehand, resulted in the appellant being denied a reasonable opportunity to have its executive meet to consider the claim and thereby to decide its position before the hearing. And of course, because the appellant couldn't decide its position before the hearing, it was also unable to enter into discussions with the union about the claim.

PN221

On 14 July, as your Honour has indicated, the appellant wrote to the Commission indicating that it had received the claim and notice of listing on the 12th, pointing out that there had been no prior discussions and asking that the matter be adjourned to allow those discussions to occur. On 15 July, and this is exhibit D to Mr Brunner's affidavit, the appellant advised the union by email that the matter would have to be referred to its executive and that a meeting would be called for that purpose. And on 20 July, as we've seen, when the matter came before the Commission, the appellant stated repeatedly that it had not had time to meet with its executive and obtain instructions.

PN222

Again the appellant requested an adjournment. We say that in the circumstances that application for adjournment ought to have been granted. The decision in Sali, the High Court decision in Sali, indicates among other things that it is only in extraordinary circumstances that the interests of justice will be served by refusing an adjournment, in a case where the practical effect of refusing the adjournment is to conclude the proceedings, because that was what the effect here was. By saying to the appellant: no, you can't have an adjournment, that brought the matter to an end.

PN223

The appellant was disarmed. It had no ability to say anything. The Secretary simply could not do anything. The matter was thus brought to a conclusion and the appellant's rights were arbitrarily cut short. Now, it is well settled that a refusal to grant an adjournment can constitute a failure to afford procedural fairness. The effect, as I've indicated, of denying the adjournment in this case was to deny the appellant the opportunity to consider the claim, to decide its position, to enter into discussion with the union, to have conciliation, to prepare its case if the executive decided to oppose the claim or to be heard in relation to the application.

PN224

I come back to this point that the appellant is a registered organisation with almost 800 members. It performs an important representative function and must be given time and opportunity as all organisations must be given time and opportunity where such time and opportunity can be afforded. This was not an urgent matter. There was no industrial action occurring that required this matter to be dealt with on that day. So the appellant ought to have been given an opportunity to perform its functions in a way that encourages participation by its own members in a way that facilitates the democratic control of the organisation.

PN225

Your Honours, on the question of leave to appeal on this latter ground of procedural fairness, the principles of leave to appeal we have set out at paragraphs 92 to 94 of the outline. It is well established that the special case referred to in section 45(2) which indicates that a Full Bench must give leave to appeal if it is of the opinion the matter is of such importance that in the public interest, leave should be granted, is an additional ground on which the Full Bench may grant leave to appeal. It is not exclusive. The normal considerations, the conventional considerations for the grant of leave to an appeal are also available, and those include whether the decision is attended with sufficient doubt to warrant it being reconsidered.

PN226

In our submission, this decision was clearly beyond jurisdiction and clearly resulted in a denial of procedural fairness. And therefore it is certainly attended with sufficient doubt to warrant its reconsideration. Another ground is whether substantial injustice may result if leave is refused and we rely on that also. Those propositions have been set out in a number of cases including, as I've indicated, at paragraph 93 of the outline, Miller v the University of New South Wales and Wan v the AIRC. Also CFMEU v Giudice which is 159 ALR 1. And also the decision in Paul, which is referred to in the outline as well.

PN227

So it is very clear that the Commission is not limited to public interest considerations in determining whether to grant leave to appeal. The normal considerations also apply. I've referred at paragraph 94 to Barrack, where the Full Bench said that if leave to appeal is sought on the basis of an alleged error in the decision or process, the Full Bench will need to consider whether it is seriously arguable that the decision subject to review was wrong on the point taken and that any such - it should be error is of a kind that causes the decision to be attended with sufficient doubt to warrant its being reconsidered or that substantial injustice should result if leave is refused.

PN228

Now, we submit that leave should be granted to appeal because firstly, in relation to the conciliation point, that the matter was clearly beyond jurisdiction. There was a jurisdictional fact which had not been satisfied. As a consequence there was no valid arbitration proceeding before the Commission. And that will be enough to resolve this appeal. We say also that the denial of the right to conciliation was a matter of some substance. It is an important right which should not be minimised. Equally the denial of procedural fairness.

PN229

It is well established that a denial of procedural fairness will render a subsequent decision void and that is also a matter which we say is of such importance that leave to appeal should be granted. And by reason of all those matters, we also say that the manner in which the proceeding was conducted in this case ought not be condoned, nor seen to be condoned so that for that reason also, it is in the public interest that the decision be quashed. Your Honours, Mr Commissioner, we rely also on the remaining matter set out in the outline at paragraphs 96 through to 134.

PN230

I don't propose to go through those now. To some extent we've already canvassed them but we do rely on them. They are more matters that might be referred to in a short reply, but in any event we refer to them. As to the relief sought, that is set out in paragraph 135 of the outline where we seek an order - our primary position, we seek an order varying the decision so as to exclude the appellant and those award respondents located in Western Australia other than the Pastoralists and Graziers Association of WA and its members and then otherwise remitting the matter to the Commissioner.

PN231

We have dealt with that point of severance previously. The Commissioner does have the power to sever the order in that way. Now, we seek the order on that basis by virtue of the fact that the order for substituted service that was made on 7 July meant that the appellant in this case had a wider function than simply that of representing its members. The appellant and the Pastoralists and Graziers Association were the two organisations based in Western Australia and therefore we say that the appellant was in effect representing the interests of those award respondents located in Western Australia who were not served with the applicant on the basis that it was sufficient to serve the appellant.

PN232

We don't seek to exclude the Pastoralists and Graziers Association or its members because it was separately represented and consented to the claim. Now, alternatively if - - -

PN233

DEPUTY PRESIDENT McCARTHY: Just on that point, Mr Blackburn. Are there members of the Pastoralists and Graziers Association that are also members of the appellant?

PN234

MR BLACKBURN: There may be, your Honour, I don't know. I'm advised - - -

PN235

DEPUTY PRESIDENT McCARTHY: If there are, then those that are members of both would be captured by - - -

PN236

MR BLACKBURN: Yes.

PN237

DEPUTY PRESIDENT McCARTHY: - - - membership of the Pastoralists and Graziers Association - - -

PN238

MR BLACKBURN: Yes.

PN239

DEPUTY PRESIDENT McCARTHY: - - - thereby excluded?

PN240

MR BLACKBURN: Yes. Yes, I think that is right. I don't really see any way around that, given that the Pastoralists and Graziers Association consented to the claim on behalf of its members. So I think that would be right. So that is why we've put it as those award respondents located in Western Australia, other than the Pastoralists and Graziers Association of WA and its members. The alternative - but your Honour's question actually, doesn't that bear on the alternative proposition that we're putting, because in the alternative, if your Honours and Mr Commissioner were of the view that that was too wide, then we would seek an order at paragraph 138 varying the decision and the order made by the Commissioner so as to exclude the appellant and its members.

PN241

Now, that then comes back to the question of what about those members who are also members of the Pastoralists and Graziers Association. I suppose that to be consistent, it would have to be the appellant and the appellant's members other than those who are members of the Pastoralists and Graziers Association.

PN242

SENIOR DEPUTY PRESIDENT MARSH: Mr Blackburn, there is authority - you've taken us to some of them - that if the Commission is dealing with jurisdictional error, the task for the Commission is to decide whether or not the member at first instance was correct.

PN243

MR BLACKBURN: Yes.

PN244

SENIOR DEPUTY PRESIDENT MARSH: And that the Full Bench as constituted should determine the matter for itself?

PN245

MR BLACKBURN: It should determine the appeal point for itself, yes. Not the entire matter.

PN246

SENIOR DEPUTY PRESIDENT MARSH: I see.

PN247

MR BLACKBURN: Yes.

PN248

SENIOR DEPUTY PRESIDENT MARSH: And when you say the matter should be remitted to the Commissioner to deal with according to law, do we presume on the basis of your submissions put that you're saying that it should in the first instance be conciliation?

PN249

MR BLACKBURN: Absolutely.

PN250

SENIOR DEPUTY PRESIDENT MARSH: I think that is set out at 125 of your submission where it says that the appellant has now decided its position and that the right to conciliation is a hallmark of the legislation.

PN251

MR BLACKBURN: Yes.

PN252

SENIOR DEPUTY PRESIDENT MARSH: So I just wanted to clarify that.

PN253

MR BLACKBURN: Yes. No, that is our position.

PN254

SENIOR DEPUTY PRESIDENT MARSH: And if we found in favour of the appellant on one or more grounds, the appellant for your client is in a position to participate in conciliation immediately?

PN255

MR BLACKBURN: Today, your Honour?

PN256

SENIOR DEPUTY PRESIDENT MARSH: I'm just saying immediately meaning that he doesn't have to seek further instructions?

PN257

MR BLACKBURN: Oh no. No, your Honour, no. That is right. The appellant has those instructions, yes, he is able to proceed.

PN258

SENIOR DEPUTY PRESIDENT MARSH: So it would be forthwith. Conciliation could take place forthwith.

PN259

MR BLACKBURN: Yes it could, yes, indeed.

PN260

SENIOR DEPUTY PRESIDENT MARSH: Yes, thank you. That is of assistance, thank you.

PN261

MR BLACKBURN: Thank you, your Honour.

PN262

SENIOR DEPUTY PRESIDENT MARSH: Ms Gooley, I think we will have a short break for 10 minutes.

SHORT ADJOURNMENT [11.20am]

RESUMED [11.31am]

PN263

SENIOR DEPUTY PRESIDENT MARSH: Yes, thank you, Ms Gooley.

PN264

MS GOOLEY: Thank you, your Honours, Commissioner. We have filed submissions by the Australian Workers Union in this matter and I don't propose to go through those submissions in any detail. I simply propose to summarise the union's submissions in this matter and address some of the issues that have been raised by my friend. The primary submission of the AWU, of course, in this matter is that leave to appeal should not be granted but if leave to appeal is granted you should not uphold the appeal. I think it is important to remember what, in fact, occurred before Commissioner Cargill.

PN265

Really the decision that Commissioner Cargill made was a decision to reject an application for an adjournment by a party to the proceeding. That is a primary decision that Commissioner Cargill made other than to in the end accede to the application by the Australian Workers Union of its application to include in the award a test case provision. Now the application that was actually before Commissioner Cargill for an adjournment was not based on the matters that are before you that are being raised before you as to why she made an error.

PN266

So what Commissioner Cargill was told was that they sought an adjournment of the proceedings because the applicant had not called a meeting of the Executive to consider the application and that the applicant had not - sorry, the appellant had not had time to discuss the matter with the Australian Workers Union. The Australian Workers Union submits that, in fact, in relation to both of those matters those were matters that the appellant chose not to do themselves. The appellant chose not to call a meeting of the Executive. We submit that to read the rules of the Western Australian Farmers' Federation Industrial Association in the way that is being proposed before you is to give no meaning to the expression "Special meeting of the Executive", in the rules.

PN267

The rules talk about Executive meetings and it talks about special Executive meetings. If special Executive meetings are identical in all form and substance to Executive meetings, there was no need to include in the rules a provision for a special Executive meeting. We say as a matter of construction, you should not read the rules in that way. It was possible for the Secretary to advise the Chair of the organisation of the application and for the Chairman to call a meeting of the Executive and for the Secretary to give notice of that meeting.

PN268

In the event that members of the organisation had made it clear to the Chairman or the Secretary of the organisation that it was not possible within the time for a meeting to be convened, that could have been put before Commissioner Cargill. What, in fact, the appellant in this instance did was not even make an attempt because there is no material before you that suggests they even made an attempt to call a special Executive meeting to consider the application, knowing that the application was set down for 20 July. That was a risk that the appellant took. It took that risk and advised the Commission that what it was going to do was seek an adjournment and, of course, as I say, two days after receiving the notice of the hearing, advised the Commission that it was going to oppose the application if the adjournment application was not granted.

PN269

So the Secretary didn't have any difficulty with his instructions in relation to applying for an adjournment and didn't have any difficulty with its instructions in advising the Commission that in the event the adjournment application was not going to be granted WAFFIA was going to oppose the application. That is in the affidavit or Mr Brunner. So when the matter came on before Commissioner Cargill, what the appellant did - sorry, in relation to the discussions with the Australian Workers Union there was nothing to prevent the Secretary of the union - sorry, of the association entering into discussions with the union. Again they chose not to do so.

PN270

Certainly, in circumstances where they were aware that discussions were going on with other employer respondents to the organisation, they made a decision in terms of how they were going to approach this matter and it was a decision not to become involved in those discussions. So we say, having made that strategic choice not to call a meeting of the Executive and not to enter into the discussions either with the union or with the other employer organisations, the association came along to Commissioner Cargill and applied for an adjournment.

PN271

Now in making that adjournment application the appellant did not raise with Commissioner Cargill the matters that are raised before you. The appellant did not refer Commissioner Cargill to the rules and say to Commissioner Cargill: The rules of the Australian Industrial Relations Commission require X. Had they done that, that would have possibly given rise to two possible outcomes. The union could have applied for the requirement for compliance with the rules to be waived and that, of course, was within the discretion of the Commission. Or the Commissioner of her own motion may have waived the requirement to comply with the rules.

PN272

So he didn't raise that with Commissioner Cargill, yet he says Commissioner Cargill fell into error in not taking that into account. This is a situation different to the circumstances referred to by my friend with the case of a dispute finding, an employer getting two day's notice of a hearing. In this case, the employer organisation had significantly more time than two days notice of the hearing. They got notification on the 12th, my friend didn't think the matter was important enough to actually attend the registered office of the organisation to collect the notice until the 13th and then the hearing was on the 20th. That is a situation of at least eight days from the notice being received that they had to consider the application.

PN273

So it was not a situation where the hearing was listed one or two days after the application - the notice was given. As I said, what the appellant at that point did, was told the Commission that they would oppose the application. Now, when the matter came on before Commissioner Cargill the adjournment application was made and that adjournment application was unsuccessful. Now a party takes a risk when making an adjournment application, makes a strategic decision if it is then not prepared to then put before the Commission the steps that should be taken in terms of how the matter should be proceeded with in the event that their adjournment application is unsuccessful. Because it is not simply appropriate for a party, having made an adjournment application which the Commission can accept or reject, to then not put any further material before the Commission in relation to the matter.

PN274

For example, having advised previously the Commission that it was going to oppose the application it chose not to oppose the application. In fact, it told the Commissioner - just bear with me a moment, in effect, that it had nothing to say about the application. What Mr Brunner told Commissioner Cargill at paragraph 29 was that it did not object or otherwise to the application. So he did not say: I don't have instructions therefore I oppose the application and if I oppose the application we propose that the following steps be taken to enable that opposition to be heard and propose directions to the Commissioner, propose that the matter be referred to conciliation.

PN275

In fact, Mr Brunner took no - made no further contribution in relation to the matter before Commissioner Cargill until such time as Commissioner Cargill says at paragraphs 37 that she proposes to accede to the application of the AWU. It is only at that point with Commissioner Cargill having made her decision, that Mr Brunner refers the Commissioner to the fact that conciliation should occur before arbitration. Having raised that before Commissioner Cargill in a very cursory fashion, but presumably one which Commissioner Cargill listened to, the Commissioner advised him that - still rejected the application and acceded to the decision.

PN276

COMMISSIONER BACON: Ms Gooley, did you say that Mr Brunner's comments at paragraph 30 of the transcript are not as they were contended for by the appellant? And that is that they were bringing the Commissioner's attention to the statutory requirement that to the extent there were parties who may want to oppose this application that there ought be conciliation prior to any steps to arbitrate?

PN277

MS GOOLEY: No, I think, in fact at that point is where Mr Brunner fell into error, where he was of the view that there was a requirement in the Act that the union enter into discussions with the employer organisations prior to making an application and prior to the hearing and determination of an application to vary an award and, of course, there is no such requirement. There may be a requirement for the Commission in relation to conciliation but there is nothing in the Act that says that a union can't stand there and say as Mr Baird did on this occasion: There is no point in us having any discussions with the appellant in this instance because we are not moving from our position that we want the test case to flow through.

PN278

So what I think was occurring there was the same complaint that Mr Brunner made in other matters, which is he was of the view there was a requirement that the union have discussions with the employer organisation about the variation. I don't take that and I did not take that as a request by Mr Brunner for the matter to be referred to conciliation. He says, "The requirement is for them to discuss it". Well, there is no requirement in the Act for the union to discuss the application with the employer. In fact, you know, I mean there is actually no necessary requirements that I presume was part of the order for substituted service that for many proceedings before this Commission that the orders that are sought are, in fact, put before the matter comes on for hearing in terms of an application to vary.

PN279

So I think in that position Mr Brunner was, in fact, repeating the error that he thought and it was not a request for conciliation. Mr Brunner does not raise the issue of conciliation until after, after in fact his adjournment application has been unsuccessful and after the Commissioner has already decided to accede to the Union's application. Then he says conciliation. Because the normal procedures in these matters is that one gets to one's feet, one says there is an application prior to hearing the arguments as to the submissions of the parties, we wish the matter to be referred into conciliation to enable the parties to have discussions. You might want to hear from the other side as to their reasons for why they want the application but prior to me making any submissions in relation to that matter, we want the matter to go into conciliation.

PN280

Mr Brunner never made a request for the matter to go into conciliation for the very reason that he was in no position, he says, because he hadn't chosen to confer with his Executive to participate in conciliation at all. Mr Brunner wasn't standing before the Commission saying: I'm ready, willing and able to participate in conciliation. He is standing before the Commission saying: I'm not here to object or otherwise to the application on this. That is what he stood before Commissioner Cargill and said and by not being in a position to either run the argument or to put forward submissions about the progress of the matter, or given that it was a test case decision that we are looking at, an argument that the matter should be further referred to the President because they were not acceding to the safety net test case provision.

PN281

Because if a party wishes, as we know safety net minimum terms are able to be considered by a single Commissioner, but if you wish to vary an award above or below the safety net it at least has to be referred to the President and that was available to Mr Brunner to argue at that point that we are not acceding to the safety net decision and they wish the matter to be referred to the President so the President could determine whether that matter should be referred to a Full Bench for consideration. He took none of those steps, except all he did was after the Commissioner had made her decision he says: What about section 113? Section 113 requires you to conciliate. That is what he did and it was not what one could submit detailed submissions to the Commissioner as to what steps she should take.

PN282

COMMISSIONER BACON: But nevertheless, it is your submission that that was a different point to the one raised at paragraph 30?

PN283

MS GOOLEY: Yes. At paragraph 30 Mr Brunner is saying: There is a requirement they discuss it with us first and there isn't such a requirement in the Act at all. So we don't - we say that wasn't a request for conciliation and in part the reason why it wasn't a request for conciliation to the Commission was because Mr Brunner was in no position to participate in conciliation at that time either with the union or with the assistance of the Commission because he was not objecting to the application. That is what he had told the Commissioner, because he said: I don't have instructions.

PN284

We submit that that, having made that decision it is not proper for them to then complain that the Commissioner didn't do what they didn't ask her to do. In the alternative we say - - -

PN285

DEPUTY PRESIDENT McCARTHY: But to that point, all that Mr Brunner had done was request an adjournment, had he not?

PN286

MS GOOLEY: That is right. He was simply requesting an adjournment and that application for an adjournment was rejected and the decision to grant an adjournment is a discretionary decision and we say there was no error in Commissioner Cargill in rejecting that application for an adjournment.

PN287

DEPUTY PRESIDENT McCARTHY: But both issues seems to have been bound up with the decision in the one or three paragraphs, the adjournment issue and the other issues are dealt with at the same time?

PN288

MS GOOLEY: Yes. As I say, in the alternative view, which is the view that says that Commissioner Cargill should have of her own motion referred this matter to conciliation, dealt with this matter by conciliation. We say that the Act requires - the construction of the Act that we contend does not require conciliation to have occurred before the Commission can reach the conclusion that it is of, there is no reasonable prospect of conciliation being successful and we in that submission, rely on the words in, in fact, 103(1)(b) where it says that:

PN289

Whether or not the parties have reached an agreement for settlement of part of the industrial dispute, the member of the Commission is satisfied that there is no likelihood that within a reasonable period conciliation or further conciliation will result in an agreement.

PN290

That is a provision which enables the Commission to decide that on the material that was before her and that is what Commissioner Cargill did, that there was no prospect, no likelihood that within a reasonable period, conciliation of any form was going to result in an agreement because we had this scenario, the union was standing before the Commission saying: We are not going to change our position, this is a test case position. We are not going below the test case. If you want to put forward a proposition to go below the test case, well run your argument, we are not going to agree under any circumstances.

PN291

We had the other parties to the award consenting and we had Mr Brunner saying what he said earlier: If you don't agree to an adjournment we are going to oppose it or we don't object or otherwise but we've got nothing to say. So it was quite within Commissioner Cargill's discretion to decide that there was no value in conciliation.

PN292

SENIOR DEPUTY PRESIDENT MARSH: How could she form that view when she didn't know Mr Brunner's position?

PN293

MS GOOLEY: Because in one part, the union were saying: It doesn't matter what his position is.

PN294

SENIOR DEPUTY PRESIDENT MARSH: Yes, but she didn't know the nature of the objection. It could have been a really minor objection, we don't know.

PN295

MS GOOLEY: We don't know because he chose not to tell her.

PN296

SENIOR DEPUTY PRESIDENT MARSH: Well, to be satisfied of the likelihood of conciliation would at least on one view require a knowledge of the gap between the parties to form that view of satisfaction that there is no likelihood of conciliation or further conciliation.

PN297

MS GOOLEY: No, I disagree, your Honour. I think Mr Baird made the union's unequivocally clear. It had done the negotiations that it was going to do.

PN298

SENIOR DEPUTY PRESIDENT MARSH: Yes, but it is the Commission's judgment, Ms Gooley.

PN299

MS GOOLEY: Yes.

PN300

SENIOR DEPUTY PRESIDENT MARSH: It is not Mr Baird's judgment.

PN301

MS GOOLEY: Yes, I know you have a party before the Commissioner saying: Conciliation will achieve nothing, we are not moving.

PN302

SENIOR DEPUTY PRESIDENT MARSH: Yes, but he is saying it not knowing what the objection is.

PN303

MS GOOLEY: I think he is saying it irrespective of what the objection is.

PN304

SENIOR DEPUTY PRESIDENT MARSH: Well, that is what she has got to weigh up.

PN305

MS GOOLEY: Yes, and that is the decision that she made when she proceeded to accede to the application of the union.

PN306

SENIOR DEPUTY PRESIDENT MARSH: So you are saying she weighed that up and made that decision?

PN307

MS GOOLEY: Well, it is very difficult in the brief time that the matter was before the Commission to actually - for me to go inside Commissioner Cargill's mind. Certainly after she has made her decision, Mr Brunner raises the issue of conciliation and Commissioner Cargill chose not to accept those submissions. Now I'm making submissions that it is, if one uses my friend's expression, a presumption of regularity. Then the presumption of regularity is that the Commissioner did reach the conclusion without expressing it that there was no value in conciliation.

PN308

Because the Commissioner is familiar with the Act and there is, on my friend's reasoning, a presumption of regularity. He raised it, she rejects it, she confirms her decision. The fact that the Commissioner may have fallen into error in terms of the way she expressed the discussion about the role of section 100 - - -

PN309

SENIOR DEPUTY PRESIDENT MARSH: Dealing with industrial disputes, yes.

PN310

MS GOOLEY: Yes. Doesn't mean that she did not give consideration to whether conciliation in this matter would have assisted. And I say it would be an interesting development in the Act if a party to a proceeding could, by standing and saying: Unless all the parties to the dispute have informed the Commission that there is no reasonable prospect of success, the Commission must be of the view that there is still a prospect of success. When you have one party being absolutely clear, I think it is reasonable for the Commission to form the view that it is not going to get them anywhere to have those discussions.

PN311

DEPUTY PRESIDENT McCARTHY: But the Commission may have made a recommendation during conciliation that Mr Baird thought was reasonable and might have well changed his approach?

PN312

MS GOOLEY: Your Honour, it might in circumstances where we were dealing with something other than a test case. Where we were dealing with something that was an application to vary the award in circumstances where it wasn't a test case. As the way of most test cases go, the ability to convince either of the parties who are putting forward a test case proposition to vary that is not the same as when you're dealing with an industrial dispute or with another application to vary. In fact, even from my friend's own case references, it is unusual for a Commissioner to accept a variation to a test case decision and in fact, we would say that a variation to the test case decision done in any other way other than by consent would need to be considered by the President and that would be the appropriate way for this matter to have been dealt with, for Mr Brunner to have said: well, we want the matter referred to the President. So we submit that while there is no - - -

PN313

SENIOR DEPUTY PRESIDENT MARSH: But why would he say that when he didn't have a position? He didn't know his position.

PN314

MS GOOLEY: Well, we say Mr Brunner's position was a moving feast. He certainly knew enough on 14 July to tell the Commission that they were opposing it. The adjournment application wasn't granted. They were opposing the application. There is no difficulty with that. And in effect, if you stand before this Commission in those circumstances where you've asked for an adjournment and you're unsuccessful, then really the only position you can adopt is to oppose the application. Because you can't consent to it, so you must oppose it and he should have been prepared for that possibility at the hearing.

PN315

DEPUTY PRESIDENT McCARTHY: But was he given that opportunity? See, to para 30 he appears to raise only the adjournment being sought.

PN316

MS GOOLEY: Yes.

PN317

DEPUTY PRESIDENT McCARTHY: And then it is only after the decision is made.

PN318

MS GOOLEY: Well, I say, if you look at what he says at paragraph 30, he says it is immaterial whether they've reached an agreement, requirement they discuss it with us, have some interaction with us before the matter proceeds. The Act requires it. May it please the Commission.

PN319

DEPUTY PRESIDENT McCARTHY: Yes, but at that point all - - -

PN320

MS GOOLEY: He has stopped his submissions then.

PN321

DEPUTY PRESIDENT McCARTHY: But at this point what he is requesting is an adjournment.

PN322

MS GOOLEY: That is right.

PN323

DEPUTY PRESIDENT McCARTHY: And that is all.

PN324

MS GOOLEY: Yes and when that application was rejected, he should have made further submissions.

PN325

DEPUTY PRESIDENT McCARTHY: But he didn't get that opportunity, did he?

PN326

MS GOOLEY: Well, he did in the way that one always gets that opportunity in these matters. He did at paragraph 38.

PN327

DEPUTY PRESIDENT McCARTHY: And he took it.

PN328

MS GOOLEY: And it was not accepted. He didn't at that point - and what we say he should have done was made submissions about - he should have, with respect to Commissioner Cargill, at that point said: With respect, Commissioner, you haven't given me an opportunity to make submissions as to our opposition to this application. We want that opportunity and if you deny us that opportunity, this will be a denial of natural justice. And he didn't do it. And having not done that, he then comes to this Commission and says: I've been denied natural justice because she denied me the opportunity to make a case when I didn't in fact press that point before her.

PN329

So that is our submissions in relation to the question of whether it should have been referred to conciliation, even if we accept that it was. We say that it was within Commissioner Cargill's powers to determine, even prior to conducting conciliation, that there was no prospect that conciliation would be successful and to proceed to hear the application. Now, we further submit that in relation to this matter and this goes to the issue of whether leave to appeal should be granted, our primary submission is that Commissioner Cargill did not make an error and therefore in determining the appeal, that is, the central issue for you to determine, and therefore if she didn't make an error, even if you would have conducted the matter differently, that is not a reason to overturn her decision.

PN330

We further say that the grant of an appeal in these circumstances will be of in form rather than use. The AWU has indicated that it will not negotiate on the terms of the test case. My friends have indicated that they have put a position to the Australian Workers Union in relation to what they propose the Australian Workers Union accept in relation to them withdrawing this appeal. The Australian Workers Union did not accept their position. The Australian Workers Union wish to see the test case apply in the entirety to this award. There is no prospect, even if you decide to grant this appeal, that conciliation in this matter will change the position of the Australian Workers Union in any fashion.

PN331

The Australian Workers Union applied to have a test case standard included in this award and it is not intending to vary that in relation to the Western Australian respondent. And we say that it is unlikely that a Full Bench, less than 6 months after the test case decision, in which the National Farmers Federation appeared before that Full Bench to make submissions in relation to opposition to the application by the ACTU, is likely that a Full Bench or a single member of this Commission, is going to vary the test case in any manner. And that is particularly so in circumstances where the very provision that goes into the award provides for circumstances where any particular employer who may have a difficulty with applying the test case, is able to make application to this Commission to have the provisions of the test case varied in their particular circumstances.

PN332

So if an employer for particular reasons, having made employees - wishing to make employees redundant - seeks exemption from the payment of the moneys that are applicable under the test case provision, the test case provision expressly allows such an employer to make such an application. So to uphold the appeal in this matter will simply have the effect of delaying the application of a test case to this award and in fact may, as I say, be a delay in substance, in form more than substance because the Australian Workers Union is of course able to apply in the exceptional circumstances of this matter, to have any award variation made retrospective, pursuant to 146 of the Act.

PN333

We say in relation to one of the matters you raised, your Honour, that it is relevant that no party ask the Commission to refer the matter to conciliation. It would again be an unfortunate precedent if a party can sit silent before the Commission and then raise the failure of the Commission to refer a matter to conciliation on appeal. Parties who have rights should exercise those rights at first instance, not for the first time as appellants. We support the submissions of our friend that of course in this case the orders of Commissioner Cargill can be severed so that it is not necessary for you to overturn the decision of Commissioner Cargill in relation to those parties that consented to the variation.

PN334

As we say, we reject very strongly the submissions that the combined effect of the Commission's notice of hearing, which was given on 7 July for 20 July, which was 13 days and then an order for substituted service that required the union to serve the address of the employer did not combine to deny the applicant procedural fairness. It was able to, had it chosen to, decide its position prior to the hearing. It could have, had it chosen to, entered into discussions with the Australian Workers Union prior to the hearing of the matter.

PN335

If you have no further questions, as I say, we rely on the submissions that we have filed in this matter in support of our opposition to this appeal.

PN336

SENIOR DEPUTY PRESIDENT MARSH: Thank you, Ms Gooley. Mr Blackburn?

PN337

MR BLACKBURN: Yes. Thank you, your Honours. Your Honours, Mr Commissioner, I don't know that this necessarily affects the matter much and it is perhaps something that I could have raised in my opening submission, so I don't know that it will affect the outcome much at all, but in response to a submission that my friend made about the requirement for any departure from the test case provision to be referred to the President, I simply refer your Honours, Mr Commissioner to the recent decision of a Full Bench in Global Telesales Enterprise Award, delivered on 4 October 2004, PR 952256, in which the Full Bench recognised and referred at paragraph 6 to what had been said in the redundancy case decision, to the effect that like all test case provisions, the TCR standard clause, while embodying sound general principles, may require some modification to suit the circumstances of particular industries and then went on to say at paragraph 13 that agreed departures from the model clause, which are designed to meet the circumstances of the particular award, and which do not materially affect the application of the entitlements should be regarded as coming within principle 2B and accordingly do not require reference to the President under principle 10. So it is possible, depending on the extent of the departures that the appellant would seek - - -

PN338

SENIOR DEPUTY PRESIDENT MARSH: Yes. That was agreed departures, I think?

PN339

MR BLACKBURN: Yes. Sorry, your Honour. Yes, I am corrected by that. Yes, sorry, I take your Honour's point on that. So it may be that an application would have to be made in accordance with principle 10, but in any event, the first step as I indicated in response to your Honour's question earlier was, the first step would be conciliation. In response to my friend's comments, we say that very little has been put to deny the key premise of the first three grounds of appeal, which is that this is a case of jurisdictional error. The fact is that section 104 sets a condition precedent to the exercise of arbitration, that a conciliation proceeding be completed and that didn't occur here.

PN340

The only thing that my friend has put to suggest that it may have been completed is that Commissioner Cargill somehow, without telling anyone, came to the view that conciliation would be of no avail and that she did that without knowing what the appellant's position would be.

PN341

COMMISSIONER BACON: But she did, Mr Blackburn.

PN342

MR BLACKBURN: Sorry?

PN343

COMMISSIONER BACON: She did know what the appellant's position would be in the event that the application for an adjournment was granted. Mr Blackburn wrote to - - -

PN344

MR BLACKBURN: Mr Brunner, yes.

PN345

SENIOR DEPUTY PRESIDENT MARSH: Mr Brunner.

PN346

COMMISSIONER BACON: I'm sorry. Mr Brunner. Mr Brunner wrote to the Commissioner on 14 July and said: I want an adjournment. If you don't get me one, I'm going to - if you don't grant me one, I'm going to object to this matter.

PN347

MR BLACKBURN: Yes.

PN348

COMMISSIONER BACON: Ordinarily, taken in context, that means I would take that to: I intend to oppose it.

PN349

MR BLACKBURN: Yes, but that position, I submit, was corrected and corrected unambiguously when the matter was before the Commissioner, at which time - - -

PN350

COMMISSIONER BACON: But the Commission is entitled to act and form views about the likelihood of the successive conciliation, based on the material it receives from the parties.

PN351

MR BLACKBURN: Yes.

PN352

COMMISSIONER BACON: And the material it received said: If I don't receive this adjournment, I'm going to oppose the application or I'm going to object to the application. And so the Commissioner could have formed the view in her mind, consistent with section 103 of the Act, that there was no likelihood of success of conciliation and expected Mr Brunner to get on his feet and oppose the application. She granted him the opportunity to do that and he chose, apparently, an alternate course.

PN353

MR BLACKBURN: Well, firstly, if the Commissioner had turned her mind to it and I submit that it is clear from the exchange that occurred at the end of the transcript, where Mr Brunner refers to the requirement to conciliate and the Commissioner's response is: That is in response to industrial disputes, Mr Brunner. The Commissioner did not consider that she was required to conciliate. It seems, on a fair reading of the transcript, that the only conclusion that can be drawn is that the Commissioner did not consider that section 113(4) required the matter to be dealt with as if it were an industrial dispute and hence that section 100 and the other sections relating to conciliation did not apply.

PN354

So we say the very clear inference, in fact, the expressed statement of Commissioner Cargill was that there was no requirement to conciliate or turn her mind to those matters. Secondly, even had the Commissioner turned her mind to those matters, she would have been making a decision without knowing what objection, if there was an objection, the appellant - what was the nature of the appellant's objection? It could have been minor. Now, my friend - - -

PN355

COMMISSIONER BACON: It doesn't matter. If he had indicated that he intends to object, then the requirement that falls on Commissioner Cargill is simply to provide the appellant with an opportunity to say whatever it is he wanted to say and he was provided with that opportunity.

PN356

MR BLACKBURN: Well, the point I would make about that, Commissioner, is that when the matter came before her, Mr Brunner was unambiguous in the position. Now, that letter of the 14th, on the 15th and this is, I think, it is annexure F, I think it is, to Mr Brunner's affidavit. On the 15th, sorry, at annexure D, the following day after sending that letter to the Commission, Mr Brunner advised the union that as this matter has not previously been raised by the union - it is annexure B:

PN357

I will have to take it to the executive committee of the association. I will be calling a meeting for later next week at the earliest for this purpose.

PN358

So he says: I will have to take it to the executive committee. But then when the matter comes before the Commission, the point is made even more clearly. At paragraph 20, Mr Brunner says at the bottom - or halfway through paragraph 20:

PN359

We still have not had the opportunity to take this matter to our executive for discussion. It is in a short space of 8 days and it is ...(reads)... discussions with the AWU, I assume, on the basis of whether or not we do have any objection.

PN360

So that earlier position has been corrected. He says again at paragraph 21:

PN361

Commissioner, we would at this juncture seek to adjourn the proceedings so that I can seek instructions from my executive.

PN362

And then at paragraph 23:

PN363

At this stage I cannot comment as to whether we oppose the application or not. And I seek that formal instruction from our executive.

PN364

So that statement to the Commissioner on that day put the position very clearly and in my submission, replaced the remarks that had been made in the letter on the 14th. The Commissioner could not have been left in any doubt that the executive of the organisation have not met and Mr Brunner is required of the Secretary to take the matter to his executive and he did not know whether the executive would object or not or if there was to be an objection, what the nature of that objection would be. Now, on that basis it was entirely possible, for example, that the executive may have said: well, let us agree to the claim.

PN365

The whole matter would have been resolved. It is also possible that a very minor objection may have been raised. And my friend says: well, the AWU, this is a test case provision and the AWU is not prepared to agree to any departure at all. Well, the fact is that the AWU, in the course of this proceeding, did agree to such a departure. They, in discussions with the National Farmers Federation, agreed to a variation to the definition of continuous service and that is referred to at paragraph 15. So it is not the case that the AWU's position on test case provisions is intractable. And it clearly was the case that Mr Brunner was saying that the executive has not had an opportunity to meet to determine its position.

PN366

So we come back to this question, to this point, that the Commissioner in our view could not have formed the view that conciliation was at an end but in any event did not turn her mind to it and that is clear from the reference to - her reply to Mr Brunner's submission on section 113: Well, that is in relation to an industrial dispute, Mr Brunner. Now, my friend criticises that as being as being a cursory submission. Well, to be fair, Mr Brunner made the submission and was then told by the Commissioner that she had made her decision and that was that. So he was cut off, so to the extent that the submission was cursory and not expanded upon, that lies at the foot of the Commission, in our respectful submission.

PN367

Because the Commissioner is familiar with the Act and there is, on my friend's reasoning, a presumption of regularity. He raised it, she rejects it, she confirms her decision. The fact that the Commissioner may have fallen into error in terms of the way she expressed the discussion about the role of section 100 - - -

PN368

SENIOR DEPUTY PRESIDENT MARSH: Dealing with industrial disputes, yes.

PN369

MS GOOLEY: Yes. Doesn't mean that she did not give consideration to whether conciliation in this matter would have assisted. And I say it would be an interesting development in the Act if a party to a proceeding could, by standing and saying: Unless all the parties to the dispute have informed the Commission that there is no reasonable prospect of success, the Commission must be of the view that there is still a prospect of success. When you have one party being absolutely clear, I think it is reasonable for the Commission to form the view that it is not going to get them anywhere to have those discussions.

PN370

DEPUTY PRESIDENT McCARTHY: But the Commission may have made a recommendation during conciliation that Mr Baird thought was reasonable and might have well changed his approach?

PN371

MS GOOLEY: Your Honour, it might in circumstances where we were dealing with something other than a test case. Where we were dealing with something that was an application to vary the award in circumstances where it wasn't a test case. As the way of most test cases go, the ability to convince either of the parties who are putting forward a test case proposition to vary that is not the same as when you're dealing with an industrial dispute or with another application to vary. In fact, even from my friend's own case references, it is unusual for a Commissioner to accept a variation to a test case decision and in fact, we would say that a variation to the test case decision done in any other way other than by consent would need to be considered by the President and that would be the appropriate way for this matter to have been dealt with, for Mr Brunner to have said: well, we want the matter referred to the President. So we submit that while there is no - - -

PN372

SENIOR DEPUTY PRESIDENT MARSH: But why would he say that when he didn't have a position? He didn't know his position.

PN373

MS GOOLEY: Well, we say Mr Brunner's position was a moving feast. He certainly knew enough on 14 July to tell the Commission that they were opposing it. The adjournment application wasn't granted. They were opposing the application. There is no difficulty with that. And in effect, if you stand before this Commission in those circumstances where you've asked for an adjournment and you're unsuccessful, then really the only position you can adopt is to oppose the application. Because you can't consent to it, so you must oppose it and he should have been prepared for that possibility at the hearing.

PN374

DEPUTY PRESIDENT McCARTHY: But was he given that opportunity? See, to para 30 he appears to raise only the adjournment being sought.

PN375

MS GOOLEY: Yes.

PN376

DEPUTY PRESIDENT McCARTHY: And then it is only after the decision is made.

PN377

MS GOOLEY: Well, I say, if you look at what he says at paragraph 30, he says it is immaterial whether they've reached an agreement, requirement they discuss it with us, have some interaction with us before the matter proceeds. The Act requires it. May it please the Commission.

PN378

DEPUTY PRESIDENT McCARTHY: Yes, but at that point all - - -

PN379

MS GOOLEY: He has stopped his submissions then.

PN380

DEPUTY PRESIDENT McCARTHY: But at this point what he is requesting is an adjournment.

PN381

MS GOOLEY: That is right.

PN382

DEPUTY PRESIDENT McCARTHY: And that is all.

PN383

MS GOOLEY: Yes and when that application was rejected, he should have made further submissions.

PN384

DEPUTY PRESIDENT McCARTHY: But he didn't get that opportunity, did he?

PN385

MS GOOLEY: Well, he did in the way that one always gets that opportunity in these matters. He did at paragraph 38.

PN386

DEPUTY PRESIDENT McCARTHY: And he took it.

PN387

MS GOOLEY: And it was not accepted. He didn't at that point - and what we say he should have done was made submissions about - he should have, with respect to Commissioner Cargill, at that point said: With respect, Commissioner, you haven't given me an opportunity to make submissions as to our opposition to this application. We want that opportunity and if you deny us that opportunity, this will be a denial of natural justice. And he didn't do it. And having not done that, he then comes to this Commission and says: I've been denied natural justice because she denied me the opportunity to make a case when I didn't in fact press that point before her.

PN388

So that is our submissions in relation to the question of whether it should have been referred to conciliation, even if we accept that it was. We say that it was within Commissioner Cargill's powers to determine, even prior to conducting conciliation, that there was no prospect that conciliation would be successful and to proceed to hear the application. Now, we further submit that in relation to this matter and this goes to the issue of whether leave to appeal should be granted, our primary submission is that Commissioner Cargill did not make an error and therefore in determining the appeal, that is, the central issue for you to determine, and therefore if she didn't make an error, even if you would have conducted the matter differently, that is not a reason to overturn her decision.

PN389

We further say that the grant of an appeal in these circumstances will be of in form rather than use. The AWU has indicated that it will not negotiate on the terms of the test case. My friends have indicated that they have put a position to the Australian Workers Union in relation to what they propose the Australian Workers Union accept in relation to them withdrawing this appeal. The Australian Workers Union did not accept their position. The Australian Workers Union wish to see the test case apply in the entirety to this award. There is no prospect, even if you decide to grant this appeal, that conciliation in this matter will change the position of the Australian Workers Union in any fashion.

PN390

The Australian Workers Union applied to have a test case standard included in this award and it is not intending to vary that in relation to the Western Australian respondent. And we say that it is unlikely that a Full Bench, less than 6 months after the test case decision, in which the National Farmers Federation appeared before that Full Bench to make submissions in relation to opposition to the application by the ACTU, is likely that a Full Bench or a single member of this Commission, is going to vary the test case in any manner. And that is particularly so in circumstances where the very provision that goes into the award provides for circumstances where any particular employer who may have a difficulty with applying the test case, is able to make application to this Commission to have the provisions of the test case varied in their particular circumstances.

PN391

So if an employer for particular reasons, having made employees - wishing to make employees redundant - seeks exemption from the payment of the moneys that are applicable under the test case provision, the test case provision expressly allows such an employer to make such an application. So to uphold the appeal in this matter will simply have the effect of delaying the application of a test case to this award and in fact may, as I say, be a delay in substance, in form more than substance because the Australian Workers Union is of course able to apply in the exceptional circumstances of this matter, to have any award variation made retrospective, pursuant to 146 of the Act.

PN392

We say in relation to one of the matters you raised, your Honour, that it is relevant that no party ask the Commission to refer the matter to conciliation. It would again be an unfortunate precedent if a party can sit silent before the Commission and then raise the failure of the Commission to refer a matter to conciliation on appeal. Parties who have rights should exercise those rights at first instance, not for the first time as appellants. We support the submissions of our friend that of course in this case the orders of Commissioner Cargill can be severed so that it is not necessary for you to overturn the decision of Commissioner Cargill in relation to those parties that consented to the variation.

PN393

As we say, we reject very strongly the submissions that the combined effect of the Commission's notice of hearing, which was given on 7 July for 20 July, which was 13 days and then an order for substituted service that required the union to serve the address of the employer did not combine to deny the applicant procedural fairness. It was able to, had it chosen to, decide its position prior to the hearing. It could have, had it chosen to, entered into discussions with the Australian Workers Union prior to the hearing of the matter.

PN394

If you have no further questions, as I say, we rely on the submissions that we have filed in this matter in support of our opposition to this appeal.

PN395

SENIOR DEPUTY PRESIDENT MARSH: Thank you, Ms Gooley. Mr Blackburn?

PN396

MR BLACKBURN: Yes. Thank you, your Honours. Your Honours, Mr Commissioner, I don't know that this necessarily affects the matter much and it is perhaps something that I could have raised in my opening submission, so I don't know that it will affect the outcome much at all, but in response to a submission that my friend made about the requirement for any departure from the test case provision to be referred to the President, I simply refer your Honours, Mr Commissioner to the recent decision of a Full Bench in Global Telesales Enterprise Award, delivered on 4 October 2004, PR 952256, in which the Full Bench recognised and referred at paragraph 6 to what had been said in the redundancy case decision, to the effect that like all test case provisions, the TCR standard clause, while embodying sound general principles, may require some modification to suit the circumstances of particular industries and then went on to say at paragraph 13 that agreed departures from the model clause, which are designed to meet the circumstances of the particular award, and which do not materially affect the application of the entitlements should be regarded as coming within principle 2B and accordingly do not require reference to the President under principle 10. So it is possible, depending on the extent of the departures that the appellant would seek - - -

PN397

SENIOR DEPUTY PRESIDENT MARSH: Yes. That was agreed departures, I think?

PN398

MR BLACKBURN: Yes. Sorry, your Honour. Yes, I am corrected by that. Yes, sorry, I take your Honour's point on that. So it may be that an application would have to be made in accordance with principle 10, but in any event, the first step as I indicated in response to your Honour's question earlier was, the first step would be conciliation. In response to my friend's comments, we say that very little has been put to deny the key premise of the first three grounds of appeal, which is that this is a case of jurisdictional error. The fact is that section 104 sets a condition precedent to the exercise of arbitration, that a conciliation proceeding be completed and that didn't occur here.

PN399

The only thing that my friend has put to suggest that it may have been completed is that Commissioner Cargill somehow, without telling anyone, came to the view that conciliation would be of no avail and that she did that without knowing what the appellant's position would be.

PN400

COMMISSIONER BACON: But she did, Mr Blackburn.

PN401

MR BLACKBURN: Sorry?

PN402

COMMISSIONER BACON: She did know what the appellant's position would be in the event that the application for an adjournment was granted. Mr Blackburn wrote to - - -

PN403

MR BLACKBURN: Mr Brunner, yes.

PN404

SENIOR DEPUTY PRESIDENT MARSH: Mr Brunner.

PN405

COMMISSIONER BACON: I'm sorry. Mr Brunner. Mr Brunner wrote to the Commissioner on 14 July and said: I want an adjournment. If you don't get me one, I'm going to - if you don't grant me one, I'm going to object to this matter.

PN406

MR BLACKBURN: Yes.

PN407

COMMISSIONER BACON: Ordinarily, taken in context, that means I would take that to: I intend to oppose it.

PN408

MR BLACKBURN: Yes, but that position, I submit, was corrected and corrected unambiguously when the matter was before the Commissioner, at which time - - -

PN409

COMMISSIONER BACON: But the Commission is entitled to act and form views about the likelihood of the successive conciliation, based on the material it receives from the parties.

PN410

MR BLACKBURN: Yes.

PN411

COMMISSIONER BACON: And the material it received said: If I don't receive this adjournment, I'm going to oppose the application or I'm going to object to the application. And so the Commissioner could have formed the view in her mind, consistent with section 103 of the Act, that there was no likelihood of success of conciliation and expected Mr Brunner to get on his feet and oppose the application. She granted him the opportunity to do that and he chose, apparently, an alternate course.

PN412

MR BLACKBURN: Well, firstly, if the Commissioner had turned her mind to it and I submit that it is clear from the exchange that occurred at the end of the transcript, where Mr Brunner refers to the requirement to conciliate and the Commissioner's response is: That is in response to industrial disputes, Mr Brunner. The Commissioner did not consider that she was required to conciliate. It seems, on a fair reading of the transcript, that the only conclusion that can be drawn is that the Commissioner did not consider that section 113(4) required the matter to be dealt with as if it were an industrial dispute and hence that section 100 and the other sections relating to conciliation did not apply.

PN413

So we say the very clear inference, in fact, the expressed statement of Commissioner Cargill was that there was no requirement to conciliate or turn her mind to those matters. Secondly, even had the Commissioner turned her mind to those matters, she would have been making a decision without knowing what objection, if there was an objection, the appellant - what was the nature of the appellant's objection? It could have been minor. Now, my friend - - -

PN414

COMMISSIONER BACON: It doesn't matter. If he had indicated that he intends to object, then the requirement that falls on Commissioner Cargill is simply to provide the appellant with an opportunity to say whatever it is he wanted to say and he was provided with that opportunity.

PN415

MR BLACKBURN: Well, the point I would make about that, Commissioner, is that when the matter came before her, Mr Brunner was unambiguous in the position. Now, that letter of the 14th, on the 15th and this is, I think, it is annexure F, I think it is, to Mr Brunner's affidavit. On the 15th, sorry, at annexure D, the following day after sending that letter to the Commission, Mr Brunner advised the union that as this matter has not previously been raised by the union - it is annexure B:

PN416

I will have to take it to the executive committee of the association. I will be calling a meeting for later next week at the earliest for this purpose.

PN417

So he says: I will have to take it to the executive committee. But then when the matter comes before the Commission, the point is made even more clearly. At paragraph 20, Mr Brunner says at the bottom - or halfway through paragraph 20:

PN418

We still have not had the opportunity to take this matter to our executive for discussion. It is in a short space of 8 days and it is ...(reads)... discussions with the AWU, I assume, on the basis of whether or not we do have any objection.

PN419

So that earlier position has been corrected. He says again at paragraph 21:

PN420

Commissioner, we would at this juncture seek to adjourn the proceedings so that I can seek instructions from my executive.

PN421

And then at paragraph 23:

PN422

At this stage I cannot comment as to whether we oppose the application or not. And I seek that formal instruction from our executive.

PN423

So that statement to the Commissioner on that day put the position very clearly and in my submission, replaced the remarks that had been made in the letter on the 14th. The Commissioner could not have been left in any doubt that the executive of the organisation have not met and Mr Brunner is required of the Secretary to take the matter to his executive and he did not know whether the executive would object or not or if there was to be an objection, what the nature of that objection would be. Now, on that basis it was entirely possible, for example, that the executive may have said: well, let us agree to the claim.

PN424

The whole matter would have been resolved. It is also possible that a very minor objection may have been raised. And my friend says: well, the AWU, this is a test case provision and the AWU is not prepared to agree to any departure at all. Well, the fact is that the AWU, in the course of this proceeding, did agree to such a departure. They, in discussions with the National Farmers Federation, agreed to a variation to the definition of continuous service and that is referred to at paragraph 15. So it is not the case that the AWU's position on test case provisions is intractable. And it clearly was the case that Mr Brunner was saying that the executive has not had an opportunity to meet to determine its position.

PN425

So we come back to this question, to this point, that the Commissioner in our view could not have formed the view that conciliation was at an end but in any event did not turn her mind to it and that is clear from the reference to - her reply to Mr Brunner's submission on section 113: Well, that is in relation to an industrial dispute, Mr Brunner. Now, my friend criticises that as being as being a cursory submission. Well, to be fair, Mr Brunner made the submission and was then told by the Commissioner that she had made her decision and that was that. So he was cut off, so to the extent that the submission was cursory and not expanded upon, that lies at the foot of the Commission, in our respectful submission.

PN426

So, coming back then to the central point, the jurisdictional pre-condition, in our view, has not been met - in our submission has not been met. It is a jurisdictional fact which conditions the exercise of arbitration. There was no valid arbitration proceeding. The Commissioner misconceived her obligations under section 113(4), failed to conciliate as required by section 102 and then proceeded to arbitration without first completing the conciliation proceeding as required by section 104.

PN427

That is in relation to the conciliation grounds of appeal. Now, in relation to the natural justice argument, the point that has been made repeatedly was that this was somehow a strategic decision of the appellant, that my friend said the appellant chose not to call a meeting. Now, it is said again that the appellant is able to call a special meeting. Well, we say that rule 23(3) of the appellant's rules, to which we took you before, requires that even special meetings have at least 7 days notice. But my friend's submission is that the appellant chose not to call a meeting, chose not to put submissions to the Commission, attended the Commission and sought an adjournment and then when that was denied, chose not to make any further submission, chose not to make a application to the President to have the matter referred etcetera.

PN428

The simple reason for all of that, it is not a question of voice. The appellant was not able to make those choices because its executive had not been able to meet. The fact that the appellant did not make those submissions - and my friend even went so far as to agree with that at one point when she said: well, look, they couldn't have been a request for conciliation because he had no instructions. Well, that just further emphasises the unfairness of the matter, that the appellant was before the Commission completely disabled, in a position where it could not, in accordance with its own rules, have any position to put to the Commission.

PN429

That was as a consequence of the matter having been called on in contravention of the Commission's own listing rules. My friend says: well, if the listing rules had been raised at the time, the AWU could have sought a waiver. Well, it wasn't for the AWU to seek a waiver. The obligation not to list the matter until 10 clear days notice of hearing have been able to be provided fell upon the Commission. There was nothing for the AWU to seek a waiver about. There is also the suggestion my friend has made that the appeal seeks to raise matters that were not ventilated before the Commissioner, that the appellant sat silent and seeks to raise these matters for the first time on appeal.

PN430

We say that is clearly wrong and the question of an application for an adjournment, the need to have an adjournment, was squarely before the Commissioner. The appellant stated before the Commissioner that it had not been able to obtain those instructions. Now it said again as well, there was no reference to the rules of the appellant in the proceedings. That is true but what happened was that at paragraphs 20 to 23, which we've been to several times, Mr Brunner has stated repeatedly that he has not had the opportunity to take the matter to the executive or to gain instructions.

PN431

At paragraphs 25 to 27 the AWU then responds to that argument. It doesn't seek to challenge the proposition that is put, which is that the appellant had no opportunity to gain instructions. Its argument is only that at paragraph 25, the bottom line of this particular matter, Commissioner, is that it represents a test case position. At paragraph 26 the arguments with regard to the test case have been run. At paragraph 27:

PN432

We've reached agreement with the National Farmers Federation. There is only one employer that we can't seek agreement with and we ask you to give - to order in accordance with the agreement reached with the majority.

PN433

So there was nothing from the AWU to challenge the statements made by Mr Brunner that it had not been possible to obtain instructions from the executive. Now, perhaps had Mr Baird taken issue with that point, then the rules may well have been brought into the argument but nobody denied the proposition that the appellant could not proceed with the matter until it obtained instructions and had not had time to obtain instructions. That point seemed to be - it was simply not challenged. And certainly the argument as to conciliation was raised and in any event, it is a jurisdictional precondition.

PN434

Even had the question of conciliation not been raised at all in first instance, jurisdictional matters are able to be raised on appeal. That has always been the case but in this case it was squarely raised before the Commissioner on two occasions, firstly when the appellant pointed out to the Commissioner that the Act required there to be discussions. And that couldn't mean anything other than conciliation. There is no other requirement in the Act for discussions. And secondly, when the appellant specifically referred the Commissioner to the sections of the Act 100 and 113(4), of course the Commissioner said: Well, that is only in relation to industrial disputes.

PN435

So these matters were squarely before the Commissioner. It is not a case of the appellant sitting silent, your Honours. Thank you.

PN436

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

SHORT ADJOURNMENT [12.20pm]

RESUMED [12.30pm]

PN437

SENIOR DEPUTY PRESIDENT MARSH: Thank you for waiting during that adjournment. Can we indicate to the parties that we will adjourn our decision in this matter. The Commission stands adjourned.

ADJOURNED INDEFINITELY [12.30pm]