AG2004/5635, Transcript of Proceedings [2004] AIRCTrans 4527 (23 November 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N 2485
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2004/5635

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LS of the Act
by the Australian Nursing Federation-South
Australian Branch and Another for certification
of the Rural City of Murray Bridge Nursing
Employees, ANF (Aged Care) - Enterprise Agreement
2004

ADELAIDE

3.56 PM, THURSDAY, 11 NOVEMBER 2004

PN1

MS K. EDWARDS: I appear on behalf of the Australian Nursing Federation.

PN2

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Edwards. I note that the Rural City of Murray Bridge is not represented today. I've called this matter on because having issued a decision in this matter on 29 October, I then received correspondence from the ANF on 5 November seeking that the matter be relisted in order to allow the parties to put submissions in support of reopening the proceedings. The parties have provided on that date some further submissions which I understand were intended to be forwarded within the prescribed time frame but were not so forwarded.

PN3

So that I've listed this matter today fundamentally to determine or to hear you, Ms Edwards, on whether or not I've got the capacity to reopen the matter. I must say I have done a little reading on that question myself and it is not altogether clear to me that I do have that capacity but I thought I should give you the opportunity to tell me why it is that you think I have that capacity and then, if I do have that capacity, why I should use it. Yes?

PN4

MS EDWARDS: Thank you, sir. Obviously the parties contend that the matter should be reopened as we believe that the Commission has the legislative capacity to do this for the following reasons. The Commission is a statutory Tribunal and accordingly the current circumstances are not akin to a special circumstances applying to reopen the following entry and perfection of a judgment of the Court in a legal issue in any dispute that binds opposing parties together.

PN5

We believe that it is clear from the Act, and in particular we refer to section 111(1)(f) which states the Commission may set aside, provoke, or vary an order direction to termination or other decision. Also section 111(1)(t) that states generally given such directions and do all such things as are necessary or expedient for the speedy and just hearing in determination of an industrial dispute. We believe that the issue before the Commission rests on questions of jurisdictional fact and characterisation informed by the circumstances.

PN6

As such, there is an impediment to the Commission in appropriate circumstances to reopen the matter. The Commission has routinely exercised the power to reopen. The issue is not so much a question of power but whether, as a matter of discretion, the Commission should reopen. In relation to the matter of discretion, we make the following points. From the employers point of view, through no fault of its own, it has not been heard in respect of critical matters which would have been subject to the Commission's decision including the original dispute finding.

PN7

The alterations in terms of the dispute identified in the final part of the written submission in relation to packaging and the operation of the salary sacrifice scheme which was the subject raised by the Commission. It was the party's intention to make further submissions and to seek to be heard as is clear from the written submission of 22 October 2004. They had an understanding that the Commission had asked for further submission in respect to the matter in that hearing convened by the Commission.

PN8

The written submissions were finalised by the ANF solicitors and forwarded to the ANF. Those submissions were then forwarded by the ANF to the employer for its further comment and approval. Following the employers satisfaction, the ANF inadvertently admitted to filing with the Commission. Both parties operated on a basis that the further submission had been filed in the Commission, only upon consideration of paragraph 8 of the Commission's decision of 29 October 2004 did it become apparent that the Commission had not, in fact, received further submissions.

PN9

In that, the parties have then sought to reopen the matter. We believe that the reopening of the matter would permit the parties to the agreement to be heard in relation to the matters dealt with of the decision about why they had given expressed consideration and also that section 170L and 170LA indicate a statutory intention for the Commission to exercise its powers, including a discretion such as that presently under consideration to facilitate the making and certification of agreement.

PN10

We therefore seek that the matter be reopened so that the Commission can consider that written submission but also so that the Commission can allow the parties to put additional material before the Commission. that was foreshadowed in that submission which provide additional material in relation to the scope of the 1990 dispute finding. We acknowledge that it was erroneous error in that the statement wasn't provided and we would be happy to make witness statements to that matter. Thank you.

PN11

THE SENIOR DEPUTY PRESIDENT: I don't require witness statements in that regard, Ms Edwards. The history of consideration of reopening of matters in the Commission is to a fairly significant extent based on reopening of award matters. Insofar as I can determine, relative to agreements, it primarily relates to reopening a decision to certify an agreement as distinct from a decision not to certify an agreement. Now, the first issue I'm going to raise with you is whether or not you would say there is any difference in that respect.

PN12

The second issue that I have for you is that in November 2002, Deputy President McCarthy reopened an unfair dismissal matter where a certificate had been issued. The history of that matter related to - for want of a better word - perhaps confusion over when a jurisdictional concern was to be identified. Deputy President McCarthy's decision was the subject of an appeal and in that appeal decision, which can be found at PR929 400, the Full Commission considered the doctrine of functus officio.

PN13

It drew upon a substantial number of other decision and concluded that there were a number of factors that needed to be taken into account. In paragraph 30 of that decision, the Full Commission noted that the act of reopening a case is an exceptional step. Whether or not a decision of administrative tribunal means that the power to make a decision is spent would depend on the legislation under which the decision-maker is acting. A Tribunal cannot revisit its own decision because it has changed its mind and recognises that it has made an error within jurisdiction or because there has been a change of circumstances.

PN14

The print of the functus officio should not be strictly applied if the Tribunal has failed to discharge its statutory obligation. The jurisdiction to reopen after judgment is discretionary and is to be exercised, having regard to the public interests in maintaining the finality of litigation. Finality is a powerful consideration. Misapprehension of the facts or the law cannot be attributed solely to the applicant's neglect or default. It might be best if I stopped there but there were a number of other factors.

PN15

That decision itself was the subject of an appeal in the Federal Court. The Full Court determined in May this year that Deputy President McCarthy had no jurisdiction to revoke his orders under section 170CF or to otherwise deal with the applications. It continued to say:

PN16

In its submissions before us, Spotless -

PN17

which was the employer at the heart of the matter -

PN18

contended that the jurisdiction of the Commission is always alive.

PN19

The Full Federal Court rejected that proposition as inconsistent with the scheme of the Act set out in subdivision (b) of division 3 of Part VIA. that leaves me in a position where I would take away the information you have given me but I wondered whether you might want to comment on any of the other particular criteria that the Full Bench, which considered Deputy President McCarthy's decision, remarked those. Those are the criteria that I've read out.

PN20

The other matter that is of some concern to me in this regard is the inherent uncertainty about some of the issues that were the subject of the decision that I issued on 29 October. That uncertainty arises from the High Court decision in Electrolux and I am conscious of the extent to which some parties, for better or for worse, have already been looking at that decision and making their own decisions about what they will or will not include in an agreement on the basis of it which raises a question of equity in terms of other parties too.

PN21

So that I am very open to hearing from you on this and I invite you to consider what it is that you think I should do. I don't know.

PN22

MS EDWARDS: I will need to get that case and study that fully, I suspect, to be able to give you a full and proper answer. I guess our concern is really that by our error, we have disadvantaged the employer on being appropriately heard, and given that it is a dispute which is between us and the employer, it would seem unreasonable for that matter not to proceed.

PN23

THE SENIOR DEPUTY PRESIDENT: What do you say to me about they said to each other parties, looking at that decision that was issued on 29 October may have made decisions or reached conclusions that might then be called into question?

PN24

MS EDWARDS: I think that there are many decisions out there at the moment that seem, in some instances, to be conflicting. I guess it would - I'm not wanting to deny anyone of equity of course, but I would suspect that they would be looking at all decisions, not just that decision. Perhaps that may assist them if they are looking at all because it seems that some of the cases that are coming out at the moment seem to be different and confusing in some instances.

PN25

THE SENIOR DEPUTY PRESIDENT: Yes.

PN26

MS EDWARDS: I guess I'm saying I doubt whether any party would be relying on just one decision. They would be looking at all of the decisions that would be coming out at the moment.

PN27

THE SENIOR DEPUTY PRESIDENT: All right. Do you want to take the opportunity to look at that decision further and give me anything in writing or do you want me simply to rely on the information you have provided to me so far?

PN28

MS EDWARDS: I would like the opportunity to look at that decision and provide something to you in writing.

PN29

THE SENIOR DEPUTY PRESIDENT: Would a week be an appropriate time frame? I can extent it if you need me to.

PN30

MS EDWARDS: No, a week should be fine, thank you.

PN31

THE SENIOR DEPUTY PRESIDENT: If you are unsure about the authorities that I have referenced, talk to my associate after the hearing. I'm sure she will list them out for you together with a few that I have also pulled out but haven't particularly referred to. I will adjourn the matter on that basis.

ADJOURNED INDEFINITELY [4.14pm]