C2003/2514, Transcript of Proceedings [2004] AIRCTrans 481 (5 February 2004)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

O/N 8932

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

JUSTICE GIUDICE, PRESIDENT
SENIOR DEPUTY PRESIDENT DUNCAN
COMMISSIONER LARKIN

C2003/2514

APPEAL UNDER SECTION 45 OF THE ACT
BY ROTARY OFFSET PRESS PTY LIMITED and ANOTHER
AGAINST THE DECISION OF COMMISSIONER CARGILL
AT SYDNEY ISSUED ON 8 DECEMBER 2003 IN C2003/3869
(PR941483) RE CASUAL EMPLOYMENT

SYDNEY

11.05 AM, TUESDAY, 27 JANUARY 2004

PN1

JUSTICE GIUDICE: May I have the appearances please?

PN2

MR J. TAMPLIN: I appear for the Printing Industries Association and member company Rotary Offset Press Pty Limited, your Honour.

PN3

JUSTICE GIUDICE: Thank you, Mr Tamplin.

PN4

MR A. NEILSON: If it pleases I appear on behalf of the AMWU, the respondent in this matter.

PN5

JUSTICE GIUDICE: Thank you, Mr Neilson. Mr Tamplin?

PN6

MR TAMPLIN: Thank you, your Honour, and members of the bench. I was remiss in the application I put before you in that I did not include the original documentation submitted to Commissioner Cargill. I have that there if that would assist the bench.

PN7

SENIOR DEPUTY PRESIDENT DUNCAN: The written submissions, for example?

PN8

MR TAMPLIN: Yes.

PN9

JUSTICE GIUDICE: Well, if you think we need to see those you can certainly hand them up.

PN10

MR TAMPLIN: I have spoken with my friend. Unless he has changed his mind in the immediate period of time he doesn't appear to object to that process.

PN11

MR NEILSON: There is no objection.

PN12

JUSTICE GIUDICE: Thanks, Mr Tamplin.

PN13

MR TAMPLIN: Your Honour, I don't intend to go to a great deal of analysis today; that is subject to your position, of course, but we have brought an appeal against a decision by Commissioner Cargill subject to section 45 on the basis that the Commission has interpreted the wording of an agreement that we believe it is in the public interest to be so brought before this Commission in that the agreement does not conform with what we say is the terms of the Acts Interpretation Act or the general principles to interpret.

PN14

I should also raise the point; my friend and I had a discussion on Friday and we won't be pursuing a stay order. In the Acts Interpretation Act which is attached to our submissions at tab 8, in particular section 15AA, the regard to be had to the purpose or the objects of an Act, and it states in 15AA(1):

PN15

If the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act whether that purpose or object is expressly stated in the Act or not ...(reads)... or object.

PN16

It then goes in 15AB to the use of extrinsic material and it states in 15AB(3):

PN17

In determining whether consideration should be given to any material in accordance with (1) -

PN18

which I have just gone to:

PN19

- or in considering the weight to be given to any such material regard shall be had in addition to any other relevant matters to (a) the desirability of ...(reads)... underlying the Act.

PN20

The issue between the parties has been an interpretation brought before the Commission subject to section 170LW for the consideration of Commissioner Cargill. The agreement itself which is at tab 6 of our submissions, and this is one of the areas that's in contention, is at point 3 of that agreement which states:

PN21

This agreement is to be read and interpreted wholly in conjunction with the Federal Graphic Arts Award (Graphic Arts General Interim Award) 1995 and the Federal Graphic Arts (Long Service Leave) Award 1977 ...(reads)... shall take precedence.

PN22

I take it that the Commission has read the documentation and I don't wish to labour the point if the Commission - - -

PN23

JUSTICE GIUDICE: No, we've read most of the material. You can assume we've got a fairly good grasp of the issue.

PN24

MR TAMPLIN: Your Honour, what it comes down to in our submission is if one applies the literal test, and we set this out in our outline, in our submission the wording has to be taken in a complementary approach in that the parties knew what they were agreeing and the objects of the Act make it clear at section 4 that the parties, to facilitate the parties reaching an agreement between them, can actually rely upon the terms and enforce those terms in section 3B:

PN25

...providing a framework of rights and responsibilities for employers and employees in their organisation which supports fair and effective agreement making and ensures that they abide by awards and agreements applying to them.

PN26

Now, the agreement has been in place for a significant number of years. It was certified by the Commission, passed the test by the Commission, nobody has complained about it and about the effects of the clause. It then comes back to whether there is a need to interpret the clause in one fashion or whether the two clauses can exist together, that is the clause of the Graphic Arts General Interim Award relating to casuals and the clause 11.9 of the agreement. Our submissions set out our reasons and our understanding of why those two can exist together.

PN27

Unless there is some other point that the Commission wishes to take me to we would rely upon what we've put to date and attempted to reduce it down to the fine points. Unless there is some clarifying issue?

PN28

COMMISSIONER LARKIN: Mr Tamplin, it's not argued that the Commissioner had jurisdiction?

PN29

MR TAMPLIN: That's not an argument. The wording of the disputes clause is quite clear. We didn't argue that and we went to that in transcript, Commissioner.

PN30

COMMISSIONER LARKIN: So the argument goes to the actual decision made not the fact that the Commissioner had jurisdiction to make the decision?

PN31

MR TAMPLIN: In one way it is the decision that is made but in our submission if you apply the working of the Acts Interpretation Act and precedent as decided by not only the Federal Court and the High Court then the interpretation must be a literal one unless it invokes the golden rule test and if you apply a literal interpretation the words have got their ordinary meaning and unless there is an absurdity or a patent anomaly then the Commission should not interfere with those words because in our submission the parties making the agreement knew what they were getting into.

PN32

Even if there is lack of clarity between the words that does not invoke a situation, in our submission, for the Commission to move away from the literal test in that the words can be given their ordinary meaning and their ordinary meaning stands and whether we like it or not I have to abide by it the same as my friend's organisation and that's the situation. If the Commission pleases.

PN33

JUSTICE GIUDICE: Mr Tamplin, clause 11.9 of the agreement which is the casual provision in question why was that provision necessary in the agreement?

PN34

MR TAMPLIN: I'd have to say for the purpose of casuals working for six months. I accept - - -

PN35

JUSTICE GIUDICE: Why would it be necessary to have a provision that said that casuals could work for six months - - -

PN36

MR TAMPLIN: Ordinary hours.

PN37

JUSTICE GIUDICE: Ordinary hours.

PN38

MR TAMPLIN: That is the same as a permanent employee which is why I think the Commissioner has taken the view that she has in the originating decision. She sees that as being in conflict with the terms of the award that says a casual employee is continuously employed when they have worked the same as a permanent employee for two weeks and then at the end of that two weeks by default they become a permanent employee. Our submission is those two clauses can be read side by side in that this clause does not have a default provision. It does not say at the end of it - - -

PN39

JUSTICE GIUDICE: Which clause?

PN40

MR TAMPLIN: Clause 11.9, and it's probably unfortunate that it doesn't and it may be fortunate that it does to the employer, but if it said at the end of it, then the employee will become a permanent employee, it would be in direct conflict to, but it doesn't say that.

PN41

JUSTICE GIUDICE: If that's right, wouldn't all the casual employees who had worked for two weeks continuously become weeklies?

PN42

MR TAMPLIN: After that six month provision, yes.

PN43

JUSTICE GIUDICE: No, I'm not quite following you. 4.1.5B of the 95 award which is the other provision we're concerned with - - -

PN44

MR TAMPLIN: Contrasting with, yes.

PN45

JUSTICE GIUDICE: Yes. Quote:

PN46

A casual employee after two weeks of continuous employment as a casual employee shall become a weekly time worker.

PN47

Has that provision been applied to casual employees under the agreement?

PN48

MR TAMPLIN: During the six month period, no.

PN49

JUSTICE GIUDICE: No, so 11.9 of the agreement has been treated as relieving the employer of the obligation to make or to treat a casual employee as a weekly time worker after two weeks.

PN50

MR TAMPLIN: After two weeks, but at the end of that six month period that clause of the award is invoked.

PN51

JUSTICE GIUDICE: After six months hasn't clause 11.9 done its work?

PN52

MR TAMPLIN: That may be so, your Honour, but it doesn't say at the end of that period the employee will become permanent.

PN53

COMMISSIONER LARKIN: What does the words "altering the casual status" mean?

PN54

MR TAMPLIN: I understand that position to mean without altering their casual status. It doesn't mean, in our submission, that at the end of it their status automatically reverts to being a permanent employee. If it did, we suggest that it would say it.

PN55

JUSTICE GIUDICE: Does that mean that for ever and a day a casual remains a casual?

PN56

MR TAMPLIN: Unless they work two full weeks the same as a permanent employee.

PN57

JUSTICE GIUDICE: So they would become a weekly worker after six months and two weeks?

PN58

MR TAMPLIN: If they worked as a full timer, yeah.

PN59

JUSTICE GIUDICE: Well, it doesn't say as a full timer, does it, it says after two weeks of continuous employment.

PN60

MR TAMPLIN: But it says underneath it in 4.1.5C:

PN61

A casual employee has been ..... when he or she has worked the same hours and days as a weekly worker.

PN62

So we've taken that, even when the existence of that clause was in place in the award, as being a weekly time worker, that is 37.5 hours or 38, but the agreement also refers to the ordinary hours of work being 12 hours a day in clause 11.1, 37.5, five x 7.5 hour shifts, 36 hours, three x 12 hour shifts, or 36 hours, four x 9 hour shifts. Those would be the ordinary hours and if they worked those for two weeks they would automatically become, by default, a weekly worker.

PN63

COMMISSIONER LARKIN: In other words the argument is you apply the terms of the agreement and then you apply the terms of the award.

PN64

MR TAMPLIN: That's correct. In the normal parlance of the term "precedence" within the agreement, it doesn't mean clarity to the outcome because "precedence" is defined as priority to and that's in clause 3 again where it states:

PN65

Provided that there is any inconsistency, this enterprise agreement will take precedence.

PN66

It doesn't, in our view, assist because it means that the term of the agreement will be read first and take precedence above the term of the award. In normal parlance I would have thought that "precedence" may have meant it nullifies the term of the award, but on a literal meaning that's probably a bad choice of word.

PN67

JUSTICE GIUDICE: Is this all about the two weeks?

PN68

MR TAMPLIN: Yes, your Honour.

PN69

JUSTICE GIUDICE: That's the only issue?

PN70

MR TAMPLIN: That's the issue, yes, but it's not the effect of the two weeks. That's one aspect. The other aspect is we submit the Commission should not move away from the principles of interpretation. To do so would potentially start a whole range of other views of interpretation that may in some part be inconsistent with what we've always understood were the precedence and the principles of interpretation, and that is the literal rule, unless it invokes the golden rule, application to remove an absurdity. It's our submission there is no absurdity between the two. They can be read in conjunction with each other.

PN71

COMMISSIONER LARKIN: The other side of the coin with 11.9, it says ordinary hours of work for a period of up to six months without altering the casual status, so if you work for a period spot on six months then your casual status is altered.

PN72

MR TAMPLIN: But at the same time you can reach an agreement with the employer to work for a period of two weeks without altering your casual status.

PN73

COMMISSIONER LARKIN: That's not been put to us, an agreement to work longer than the six months. I don't think that's in any of the period.

PN74

MR TAMPLIN: No, we're not saying longer. It can be shorter because it says "up to".

PN75

COMMISSIONER LARKIN: Yes, so it can be up to six months without altering the casual status, but if you get to up to the six months and you're on the six months, then you alter your casual status and you become weekly, do you not?

PN76

MR TAMPLIN: Well, we don't accept that because this clause does not hold a default provision that says at the end of that six months you will become permanent, whereas the clause in the award is specific. It does.

PN77

COMMISSIONER LARKIN: But what's altering your casual status if you don't become weekly? Altering your casual status if you don't become weekly, then is it termination?

PN78

MR TAMPLIN: But it doesn't, at the end of that six months, automatically change you into a permanent employee, otherwise it would say that, and that's the problem or the issue that we're putting before this Commission along with one or two others, that if it was meant to do that, the parties would have put that into place and then they relied upon the provision of the award. It says "up to", it says "without altering their casual status", but it does not say at the end of that six month period, you by default automatically become a permanent employee, whereas the award sets a provision that says if you work two weeks, and we say beyond that six months, the same as a permanent employee given the latitude of hours in the previous section, then you do become a permanent employee automatically, with or without the right or objection of the employer. It is automatic.

PN79

JUSTICE GIUDICE: Could I just ask one other question, Mr Tamplin, looking at the award clause 4.1.5C which explains what "continuously employed" means. Comparing that with clause 11.9 of the agreement which talks about full time ordinary hours, are those two expressions meant to be equivalent, in your submission?

PN80

MR TAMPLIN: Has been continuously employed when he or she has worked the same days and hours as a weekly worker?

PN81

JUSTICE GIUDICE: Yes.

PN82

MR TAMPLIN: We would say that would occur if, after the six months, they were - - -

PN83

JUSTICE GIUDICE: No, but I'm just asking you about the words themselves. You see there's a concept in 4.1.5C of working the same days and hours as a weekly worker?

PN84

MR TAMPLIN: Yes.

PN85

JUSTICE GIUDICE: The concept that's referred to in clause 11.9 is full time ordinary hours of work. Are they the same things? They seem to be.

PN86

MR TAMPLIN: They seem to be on the face of them, yes. It would be difficult to submit that they're not.

PN87

JUSTICE GIUDICE: So there would be no question that an employee who had worked for six months as a casual but full time ordinary hours - - -

PN88

MR TAMPLIN: Without that six month provision, after two weeks they would have become a full time employee, irrespective of any objection of the employer, or any exception.

PN89

JUSTICE GIUDICE: Yes, thanks, Mr Tamplin.

PN90

MR NEILSON: I was faxed some submissions from Mr Tamplin on Thursday morning and given the time frame involved I was only able to reply yesterday. I've provided Mr Tamplin with a copy and I arranged for a copy to be faxed to the Commission yesterday. I have clean copies of those submissions with the relevant cases attached which I will seek leave to tender. Mr Tamplin I understand has no objection to that.

PN91

JUSTICE GIUDICE: Mr Neilson, what is the dimension of this problem?

PN92

MR NEILSON: The problem seems to be associated with the company has been employing casuals for a lengthy period over the six month period that is provided for in the agreement and anecdotally the site has been a site that the union has been trying to recruit new members for some period of time. There are some Australian Workplace Agreements in operation at the site. But the crux of the problem came down to the fact that we were getting reports and members were coming forth with issues that they had been casual employees of Rotary Offset for periods up to 18 months to two years at a time.

PN93

We addressed that with a whole raft of issues and Mr Tamplin makes reference to them in his submissions that the union and the company have been in dispute for some time, but the reason the dispute was brought to the Commission initially was so as to enable those employees who had been engaged for periods in excess of six months to convert to permanency as there'd been requests made to the company on various occasions. That had been the source and the crux of the dispute and Mr Tamplin and the company had advocated that they weren't eligible to become full time employees under the terms of the agreement and the matter was of course brought to the Commission for resolution.

PN94

JUSTICE GIUDICE: Are there many of these people?

PN95

MR NEILSON: My instructions are there's approximately seven to ten at the moment and all of those seven to ten have been made permanent subsequent to Commissioner Cargill's decision, hence the need for the revocation of the stay order from Mr Tamplin.

PN96

JUSTICE GIUDICE: Yes, well what are the outstanding issues?

PN97

MR NEILSON: There are some issues in relation to underpayment of wages.

PN98

JUSTICE GIUDICE: No, I just mean in relation to a casual question.

PN99

MR NEILSON: To the casual question, my understanding is that issue has been resolved by the decision of Commissioner Cargill from the union's point of view. It's been complied with by the company. We don't have any issue with its compliance.

PN100

JUSTICE GIUDICE: Well, obviously, they're still challenging it, but if the challenge is successful, what will the material difference be?

PN101

MR NEILSON: Well, you'll have the situation where casual employees will, of course, be required to work for six months and then if you accept the company's argument they'll be required to work the extra two weeks. The fear, of course, is that you're going to get a situation and it could well happen with the six month period where they'll be laid off after the completion of the six months so that they don't complete the two week period or there's cases where, of course, that the Commission would be aware of, situations where employees are sent home a couple of hours early so they don't meet the test required by the weekly time work hours as required by the 1995 award.

PN102

JUSTICE GIUDICE: Well, I don't like to impute bad faith to people, Mr Neilson, generally. But if one were going to, presumably that sort of behaviour could be used to avoid the award provision anyway.

PN103

MR NEILSON: That's correct.

PN104

JUSTICE GIUDICE: All right, thank you.

PN105

MR NEILSON: Yes, well your Honours I don't know if you've had the opportunity to read the submissions that I've put forward into the Commission this morning.

PN106

JUSTICE GIUDICE: I must say that I've had only limited opportunity. My colleagues have had a better one.

PN107

MR NEILSON: Yes, I might just go through it briefly if that would be sufficient. The first outline of submissions in relation to the background of the dispute, I think that's been sufficiently dealt with by Mr Tamplin's submissions. The key comments of the Commissioner at first instance are located at paragraph 35 and 36 of the decision and that's where the Commissioner details that she doesn't accept the argument that the clause as a whole requires an employee to satisfy the award requirements after or satisfying the provisions of the agreement.

PN108

I've dealt with clause 13 and 14, the dispute clause. In relation to our first submission we note that Mr Tamplin has relied and it's located at tab 2 of his appeal book and the particulars of appeal. He's relied upon section 45(1)(a) of the Workplace Relations Act in establishing that he has, if you like, a right of appeal to the Full Bench and 45(1)(a) as the Commission would be aware states that:

PN109

Subject to this Act, an appeal lodged to a Full Bench ...(reads)... or alleged industrial dispute.

PN110

Now, further to the question from the Commissioner to Mr Tamplin earlier, he doesn't take any recourse with the Commission's jurisdiction at first instance to deal with this matter and we don't make any substantive submissions on that point, but we do note of course the case is commonly referred to as the private arbitration case which was the CFMEU and the Australian Industrial Relations Commission which I've annexed a copy of to the table of cases where of course the High Court dealt with a number of issues relating to dispute settlement provisions in certified agreements.

PN111

Now, relevantly at paragraph 31 and 32 and I'll highlight the relevant clauses for your Honours, is that the court held there that:

PN112

Where parties agree to submit their differences for a decision by a third party, the decision maker does not exercise judicial power, but power of private arbitration.

PN113

Then, continuing on in paragraph 32:

PN114

Procedures for the resolution of disputes over the application of an agreement made by parties between the industrial situation -

PN115

And we highlight "industrial situation":

PN116

To prevent that situation from developing into an industrial dispute ...(reads)... maintained in that agreement.

PN117

Now, various Full Benches in dealing with section 170LW applications further to that matter have cited that case and held that in dealing with previous cases dealing with the question of section 170LW, those cases that were decided before the CFMEU decision should be treated with caution and a recent decision of this Commission in Telstra Corporation v CEPU which is PR940569 which is also attached made those comments.

PN118

Now, whilst we submit that the decision of the Commission at first instance was within jurisdiction, and we note that Mr Tamplin takes no issue there, we believe that section 45(1)(a) and section 45 generally establishes matters that can be appealed to this Full Bench. It is our submission that this is not a matter which can be appealed to this Bench at this stage. We make that submission on the basis of the court's comments in CFMEU where they've held that "procedures for the resolution of disputes over the application of an agreement made by parties to an industrial situation" and we've highlighted the particular comments at paragraph 30 in my submissions, "to prevent that situation", there's that word again, "situation", "from developing into an industrial dispute". Clearly procedures for maintaining that agreement.

PN119

Now, the words of the High Court in describing a dispute over the application of an industrial instrument as being an industrial situation, we submit is of relevance to this particular appeal and is of relevance to whether Mr Tamplin has jurisdiction to bring this particular appeal today. Now, of course, the Commission would be aware that the purpose of dispute settlement procedures is to enable the parties and in some cases the Commission to ultimately resolve matters before they turn into disputes and on some occasions after they turn into disputes.

PN120

But we would submit the proceedings below could be characterised and correctly characterised as arising from an industrial situation, not necessarily an industrial dispute. The decision of the Commission was no doubt aimed at preventing an industrial dispute from happening, but no formal industrial dispute for the purposes of the Act was found by the Commissioner and no formal findings were recorded as is required by the Act.

PN121

Now, Rotary of course rely on section 45(1)(a) to establish that they have leave or jurisdiction to come to the Bench with this question that they propose to be dealt with. But it's our primary submission that the Commissioner in the proceedings below and the decision effected by Commissioner Cargill does not make a finding in relation to an industrial dispute or an alleged industrial dispute and for the purposes of the Act section 4(1) which is headed the definition section defines an industrial dispute as being - it's at paragraph 37 of my submissions:

PN122

Industrial dispute excepting part XA means an industrial dispute including a threatened, impending or probable industrial dispute and one extending beyond the limits of any one State and that is without matters pertaining to a relationship between employers and employees.

PN123

Now, the key part of that definition, we say, is that it is about matters extending beyond the limits of any one State. We would submit that this is not a matter that extends beyond the limits of any one State, it is solely confined to New South Wales and we would submit that on the definition provided by the Act of an industrial dispute there has been no industrial dispute recorded or found and I've dealt with the relevant clause in the agreement in paragraph 38 of my submissions.

PN124

JUSTICE GIUDICE: It doesn't appear to be put on that basis. I mean I know that 45(1)(a) is invoked but there doesn't seem to be any material to support that submission.

PN125

MR NEILSON: Yes and that's a particular concern and I've dealt with that later in my submissions as to whether the appellant has made any submissions as to why leave should be granted in this particular matter. They need to demonstrate that of course leave should be granted on the basis of the public interest and we would say that the appellant has failed in making those submissions and has not made any substantive admissions apart from its submissions in respect to the correctness if you like of the Commissioner's decision in the first instance. We would say that they are obliged to make specific submissions as to why the public interest is served by the granting of leave to appeal on this particular matter. So far they have failed to do that.

PN126

Of course in identifying any particular appeal to a Full Bench we would of course say that it is an obligation upon the appellant to identify which particular provision of section 45(1) it relies upon to establish that this Bench has jurisdiction to deal with the matter. Whilst Mr Tamplin makes no submissions and your Honour is right in observing that, we would say that reference to section 45(1)(a) behind tab 2 in his appeal book is, we would say, his submission as to what ground he has to bring this particular appeal.

PN127

It is certainly our submission that there has been no formal finding of an industrial dispute. No application was made in the proceedings below by the appellant for a finding of an industrial dispute and we would say that they are not allowed by the provisions of the Act to rely upon section 45(1)(a) in establishing that this appeal comes within the jurisdiction of this Full Bench to deal with. We would say that the matters below dealt with by Commissioner Cargill have been correctly identified by various Full Benches and by the High Court in the private arbitration case as being exactly that, a private arbitration.

PN128

We would say that unless the requisite matters identified in section 45 are dealt with by the decision of the Commissioner at the first instance then we would say no matter arises which can be appealed to this Full Bench. I've dealt with that your Honours and Commissioner at 19 through to 42 in my submissions. I won't make any further submissions on that particular point as I believe they have been sufficiently dealt with in my written submissions.

PN129

In relation to the second question which is dealt with by section 45(2) that is that leave shall be granted to an appellant if the Full Bench is satisfied that the matter is of such importance that the public interest leave should be granted. Noting from the submissions and the outline of submissions and the grounds of appeal we would submit that Rotary has made no submissions as to why leave should be granted by the Full Bench. We would submit that it is a fundamental requirement for the appellant to demonstrate why leave should be granted. This is so as we submit that the Appeal Bench should prima facie take that the decision under appeal has been incorrectly made and that has been an observation of various Full Benches throughout the years and I've made reference to the Ship Painters and Dockers Appeal which is located at [1960] CthArbRp 182; 94 CAR 579 611 and I've dealt with that at paragraph 47 of my submission.

PN130

It has also been confirmed by the Full Bench in Westend Pallets Pty Limited (Ross VP, Williams DP and McDonald C) where the Full Bench held that:

PN131

In our view leave to appeal should not be granted unless the appellant ...(reads)... the decision under appeal.

PN132

We would submit that Rotary has not demonstrated the requisite factors for the grant of leave in a particular case. It has not demonstrated, we say, on a sufficient basis how the Commissioner at first instance made a mistake or gave weight to irrelevant matters and we would submit that the Full Bench should not grant leave to Rotary in this particular matter. Of course the Full Bench would be aware that if the requirement that the public interest test in appeals be applied vigorously so that access to an Appeal Bench is not diminished by unwarranted and automatic appeals and we would say that this particular case does not demonstrate sufficient public interest for an appeal to be granted or leave to be granted and I've referred to the comments at paragraph 51 of the Safries Pty Limited appeal where it is said that:

PN133

Leave to appeal is not a mere formality and a substantive submission is required if leave is to be granted.

PN134

We would say that neither Mr Tamplin nor Rotary in this matter has made any substantive submissions as to why leave should be granted and we would say on that basis that leave should not be granted.

PN135

Turning to the decision of the Commissioner at first instance the decision of the Commissioner can quite clearly be divided into two parts. The first part is of course the decision as to the relevant award. Issue was taken in the proceedings below as to whether as a result of the award certification process the 1995 award had been rescinded for the purposes of underpinning the subject agreement. The Commissioner found that the 1995 award continued to apply despite it being rescinded by the award certification process. That matter is not under appeal but I think it is pertinent to the Bench to be aware of that matter.

PN136

The second issue and of course your Honours and Commissioner would be aware could be characterised as the Commissioner's determination with respect to the meaning of the disputed clause. We would of course submit that the decision and conclusion reached by the Commissioner was freely available to the Commission and that the submissions advanced by Rotary if accepted by this Commission would have had the effect of requiring casual employees to satisfy two tests before being able to be made permanent.

PN137

We would say that that was clearly not been the intention of the parties. The clause we say and I think Mr Tamplin is confusing himself and everyone else at times when he says that at times the clause was designed to oust the award and at other times it wasn't meant to oust the award. The Commissioner, we would say, found that the clause was designed to oust the award so that casual employees could not be made permanent after working full time ordinary hours for two weeks. They could be made permanent after working six months. We would say to reach a conclusion that to oust the award for six months but then the award applies at the conclusion of those six months we would say is not a fair situation and we would say that it is not the right conclusion and certainly submit that the decision of Commissioner Cargill at first instance was the correct one and certainly available on the facts as presented.

PN138

Commissioner Cargill concluded, I referred to it at paragraph 61 of my submissions, that:

PN139

I do not accept the argument that the clause in the agreement as a whole requires an employee to then satisfy the award requirements after already satisfying the provisions in the agreement which have replaced those of the award.

PN140

We would certainly say that that is a sound conclusion.

PN141

In relation to Mr Tamplin's arguments about ambiguity and absurdity as being the only basis for the Commission to interpret agreements - I'm a little bit confused by that submission but I make this submission on the basis that I presume what Mr Tamplin is getting at is the issue of an ambiguity arising, or an absurdity arising in the agreement which warrants a variation pursuant to section 170MD. Certainly no application has been made for a variation to the agreement, no application has been made by either the appellant or the respondent and certainly we would say the Commissioner's decision at first instance does not vary the agreement in any way whatsoever. So we would say that that submission should be dismissed.

PN142

The other thing that should be kept in mind, we say, is that Mr Tamplin and of course the respondent, the union, came to the proceedings before Commissioner Cargill on a consent basis. Both parties knew exactly what the question was to be arbitrated and both parties freely entered into proceedings seeking a determination from the Commission as to what the true meaning of the disputed clause was. The effect of Mr Tamplin's submission now is that he is now saying that the Commission should not have interpreted the agreement when in fact both parties went into the proceedings before Commissioner Cargill asking for her to interpret that agreement.

PN143

What Mr Tamplin is essentially saying now is that the Commissioner should not have interpreted the agreement because there was not an absurdity and we would say that that submission is not necessarily correct. In relation to Mr Tamplin's paragraphs 21 and 22 of his outline of submissions where he's made reference to some disputes the union and the company have been having we would submit that they have no relevance to these proceedings. They don't necessarily assist the Commission in determining this particular matter.

PN144

Unless the bench has some further questions, I'll summarise my arguments as this. Our first one is of course that the appellant has no standing pursuant to section 45(1)(a) to bring the appeal. The second one is that the appellant has not demonstrated any grounds to warrant the granting of leave pursuant to section 45(2). The third one is that the public interest will not be served by the granting of leave to appeal in this particular matter and we would say finally that the decision of Commissioner Cargill is correct and when the Commission considers on any appeal that a decision at first instance was correctly made we would say that that presumption is in favour of the respondent to this particular appeal and the decision of Commissioner Cargill should not be overturned. I'll leave my submissions at that, your Honours, and Commissioner, unless you have any further questions.

PN145

JUSTICE GIUDICE: Thanks, Mr Neilson. Mr Tamplin, do you have anything else to submit?

PN146

MR TAMPLIN: Thank you, your Honour. Section 170LW of the Act proposes procedures for preventing and settling disputes and refers to:

PN147

If there are procedures in a certified agreement ...(reads)... or appoint a board of reference.

PN148

The Commission has its powers therefore under that Act provided there is a dispute settling procedure that empowers the Commission to do so, to arbitrate those matters. Consequently it is a dispute pursuant to the application brought by the union under section 170LW and we say that dispute as to the application of the Act falls within section 145 in our application. That's our understanding of the Act.

PN149

As far as the employees go this matter has been brought before the company for some period of time. The company has reviewed its records. Any employee who worked two weeks beyond the six month period was automatically made a permanent employee and that's how the agreement has been applied. In actual fact there are other employees who have worked a range of hours over a period of time that do not conform with the permanent employees who have also been offered flexibility of working hours under Australian workplace agreements.

PN150

The Commissioner states in the transcript that she is interpreting the matter and she does so at paragraph 106. She then refers to an indication of the gain at paragraph 114 and then we also refer to - the Commissioner states at 122:

PN151

Yes, and presumably this is what I now have to take up with you about the issue of the powers under the dispute settling provision but do I take it by your presence here that your view ...(reads)... would then comply with that view of what the agreement - - -

PN152

We did not attend that meeting or that hearing on the basis of a consent to what the Commissioner decided. It was not a joint application endorsed by us that it was section 170LW.

PN153

COMMISSIONER LARKIN: Mr Tamplin, the transcript at paragraph number 162 towards the end, about the fifth line from the bottom, you clearly state to the Commissioner:

PN154

I think it comes down to can they be read together and we say the clauses can be read together in that the six months prevails and then at the end of the six months the clause regarding the two weeks of the award automatically - in a term relating to award automatically prevails and comes into places.

PN155

Then at paragraph number 167, and I think this may have been in relation to whether you were looking at the 1995 award or the simplified 2000 award, but nonetheless at paragraph number 167 the submissions on behalf of the appellant in these proceedings say:

PN156

The issue is for us narrow. Does the '95 provision form part of the agreement or does it not?

PN157

That is what was put to the Commissioner. Isn't that what Commissioner determined?

PN158

MR TAMPLIN: Yes, the Commissioner determined whether the '95 award formed part of the agreement. What the Commissioner also determined was that the term "without altering your casual status" at the end of it means your casual status is automatically altered. Where we say it is not automatically altered if it doesn't say it and if it doesn't say it then that two week provision comes into play. The issue as I said earlier is the term "this agreement shall take precedence" which is in clause, I think, 3 of the agreement.

PN159

If it had said it will cover the field or it will replace all other agreements or all other terms then that is beyond doubt but it doesn't and because it doesn't we say the agreement and the award have to be read on their ordinary meaning and their ordinary meaning state what it states and that is one provision is a default provision that makes a person a permanent employee where the six month provision makes no reference to it.

PN160

COMMISSIONER LARKIN: Well, that's going further now. I mean what I was trying to get down to, I think you made a submission to the Full Bench that your client did not consent to the Commissioner approaching the matter as she did. I think that's what was put to us. That's why I raised them with you. That's what was put to the Commissioner and is that not what the Commissioner did? Why was there not consent for the Commissioner to resolve the issue between the parties in relation to whether the clause in the agreement was to be read in conjunction with the award? Wasn't that what was clearly put to her? Didn't you agree that she determine that matter?

PN161

MR TAMPLIN: We didn't dispute her determining that matter. There was no recognition between us and the union that we accepted on the basis of a joint application that the Commissioner decide the matter.

PN162

COMMISSIONER LARKIN: I'm sorry, I didn't know the submission was that there was a joint application. There was an application lodged but then didn't the parties come to Commissioner jointly and say this is the issue in dispute and this is what we want resolved.

PN163

MR TAMPLIN: This is the issue to be resolved, yes, and that's what she did.

PN164

COMMISSIONER LARKIN: So both parties said that, did they not? They had different arguments about how it should be resolved but both parties did say dispute settling provision, there's power for the Commission to settle this dispute. This is our argument. That's their argument. We want you to determine it.

PN165

MR TAMPLIN: Yes.

PN166

COMMISSIONER LARKIN: Thank you Mr Tamplin. No, thank you.

PN167

JUSTICE GIUDICE: Mr Tamplin, I'm not quite sure why this is an argument over the application of the agreement. I can see that if there was a concern about what had occurred during a period of employment of less than six months it might be a question of what 11.9 of the agreement meant but after six months it is almost a question of interpretation of the award isn't it?

PN168

MR TAMPLIN: Well it is both your Honour, in our - - -

PN169

JUSTICE GIUDICE: I suppose it is both, but I am just looking at it from the point of view of enforcement. Let's say somebody said, "Well, we want to take an action on the basis that - - -

PN170

MR TAMPLIN: That is precisely the problem - or the situation we are in. We have the AMWU prosecuting us for other issues and potentially this one before the Chief Industrial Magistrate and the decision given by the Commissioner isn't as clear as we would like - one aspect, and two, we think she has come to the wrong conclusion based upon an attempt to resolve an industrial dispute rather than looking at it as an interpretation which she has within her powers as she indicates and has been put before other members of this bench that she erred in not applying the literal rule.

PN171

Now, if we come to the situation where after the six months it has been altered, there is the issue of retrospectivity in that, when it becomes effective from the date of the decision of the Commissioner or whether there is a pursuit of retrospectivity. So we say it should be read on the fact of it and the words given their ordinary meaning and that is, it is what it says.

PN172

SENIOR DEPUTY PRESIDENT DUNCAN: The whole dispute is whether or not the two weeks required by the Award is necessary.

PN173

MR TAMPLIN: That is correct your Honour.

PN174

JUSTICE GIUDICE: Is it six months or six months plus two weeks?

PN175

MR TAMPLIN: That is correct your Honour and that is the issue. Now, there is no disputing that if they work the two weeks they become by default permanent. There is no argument with that aspect. It is whether that can be read jointly or whether one nullifies the other. Our primary submission in the first instance was, it is not a "cover the field" test or issue. It was can they be read in their ordinary meaning? Thank you your Honour.

PN176

JUSTICE GIUDICE: Yes, we intend to consider what has been put and we will attempt to give a decision at 20 past 12 but of course whether we do will depend upon our discussions, so we'll adjourn until 12.20.

PN177

MR TAMPLIN: Thank you your Honour.

SHORT ADJOURNMENT [12.00pm]

RESUMED [12.25pm]

PN178

JUSTICE GIUDICE: This is an appeal for which leave is required by Rotary Offset Press Pty Limited against the decision made by Commissioner Cargill on 8 December 2003. In her decision, the Commissioner dealt with an application by the AMWU under section 170LW of the Workplace Relations Act 1996 concerning the application of clauses 3 and 11.9 of the Rotary Offset Press Pty Limited Production Enterprise Agreement 1998. The decision was made pursuant to the dispute resolution provision in the Agreement clause 9. The matter principally in contention concerned the relationship between provisions of the Graphic Arts General Interim Award 1995 governing the circumstances in which the employment of employees engaged on a casual basis are to become full time employees and clause 11.9 of the Agreement.

PN179

The issues, the award provisions and the party submissions are set out in the Commissioner's decision and there is no need to repeat them. The AMWU submitted on the hearing of the appeal that the appeal is incompetent being brought in reliance on section 45(1)(a) of the Act. Section 45(1)(a) provides that an appeal lies to a Full Bench with the leave of the Full Bench against a decision of a member of the Commission by way of a finding in relation to an industrial dispute or alleged industrial dispute. The AMWUs submission was that the decision made by the Commissioner was neither a decision by way of a finding in relation to an industrial dispute or an alleged industrial dispute.

PN180

We think that submission is correct but even assuming that there is a covenant appeal before us, we do not think this is a case in which leave should be granted to appeal. We are not persuaded that there is a sufficiently arguable case that the Commissioner made an appealable error. Furthermore, we are not of the opinion that the matter is of such importance that in the public interest leave to appeal should be granted. In those circumstances we decline to grant leave and will now adjourn. Thank you for your submissions.

ADJOURNED INDEFINITELY [12.30pm]