C2004/6066, Transcript of Proceedings [2004] AIRCTrans 5003 (21 December 2004)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

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TRANSCRIPT OF PROCEEDINGS


O/N 9400
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

JUSTICE GIUDICE
VICE PRESIDENT ROSS
COMMISSIONER GAY

C2004/6066
C2004/6076

APPEAL UNDER SECTION 45 OF THE ACT
BY KELLOGG BROWN AND ROOT PTY LTD
AGAINST THE DECISION OF COMMISSIONER
WHELAN AT MELBOURNE ON 7 SEPTEMBER 2004 IN AG2004/1812, AG2004/1813 AND AG2004/1814

APPEAL UNDER SECTION 45 OF THE ACT
BY ESSO AUSTRALIA PTY LTD AGAINST THE
DECISION (PR951725) OF COMMISSIONER
WHELAN AT MELBOURNE ON 7 SEPTEMBER 2004
IN AG2004/1812, AG2004/1813 AND AG2004/1814

MELBOURNE

10.05 AM, THURSDAY, 9 DECEMBER 2004

PN1

MR F. PARRY SC: I seek leave to appear for the appellants with MR R. DALTON.

PN2

DR C. JESSUP SC: I seek leave to appear with my learned friend MR C. O'GRADY, on behalf of Esso Australia Proprietary Limited. We seek leave to intervene in the appeal lodged by my learned friend's client.

PN3

MR S. WOOD: I seek leave to appear for the Australian Mines and Metal Association and the Australian Mines and Metals Association seeks leave to intervene in both appeals.

PN4

MR M. BROMBERG SC: I seek leave to appear for the AWU and also the CEPU who are respondents to both appeals.

PN5

JUSTICE GIUDICE: Any objections to the applications for leave to intervene or to appear?

PN6

MR BROMBERG: I do not seek to raise an objection to my learned friend Dr Jessup's application for leave to intervene in the appeal brought by the contractors but I do object to the leave sought by my learned friend Mr Wood, on behalf of the Australian Mines and Metals Association.

PN7

JUSTICE GIUDICE: Mr Wood?

PN8

MR WOOD: Your Honour, we sent a letter to your associate on 6 December which we hope you have got a copy of, which sets out that the Australian Mines and Metals Association intended to seek leave to intervene in both appeals and sets out the basis for seeking to intervene. The Association has, as you may be aware, is the national employer association representing workplace and human resource management interests of the resources sector. It has many members, about 280.

PN9

It says that it should be granted leave to intervene for reasons that because it represents industrial relations and employer interests of companies engaged in the Australian resources sector and those member ordinarily operate their production and processing activities as continuous 24 hour a day, 360 days a year operation. Those employees working those operations ordinarily work continuous shift rosters requiring the working of a combination of day and night shifts of duration between 8 and 12 hours per shift.

PN10

Many mining operations are conducted on a similar basis, operated by rosters, that the rosters that are normally worked in the resources sector, that is the oil and gas production area and the mining sector, are, as Mr Flood said in his evidence before Commissioner Whelan, at least 14/14 and often greater. The AMMA is concerned about the tenure of the decision which is under appeal. That is it is concerned about the vibrancy of the resources sector may be affected if the reasoning that is contained in the decision under appeal gains any wide currency and the 14/14 rosters or greater length rosters that are currently standard in the resources sector are challenged.

PN11

That is why we say that AMMA should have leave to intervene. Our submissions would be very short to that effect that we think and would say the resources sector is a $60 million industry. The rostering arrangements, as I have described, are standard. We are concerned or AMMA is concerned, on behalf of its members, about any threat to the economic security of that sector by reason of the reasons contained in the decision under appeal.

PN12

JUSTICE GIUDICE: Yes, thank you.

PN13

MR BROMBERG: My learned friend, Mr Wood, has told the Commission why his client has an interest. I do not seek to deny the fact that his client may have an interest as a whole range of employers, employees and others would likely have an interest in this decision and probably every other decision that the Full Bench hands down from time to time. What my learned friend has not indicated and we say he needs to show this is what the purpose of the intervention would be.

PN14

Does he seek to introduce new material. His letter suggests that he does by referring to making assertions about various arrangements within the mining industry. That would be impermissible, if that was the purpose of the intervention. Insofar as the purpose of the intervention is to make submissions on the question of law, or other questions that are raised in the appeal, there are four counsel arraigned opposed to the position of the unions. Is my learned friend intending to say anything different? What can he add to the appeal? It is an appeal that is likely to take the best part of the 2 days allocated and in circumstances where my learned friend's client has not pointed to a purpose for intervention and in our respectful submission, there is not a legitimate purpose for that intervention. Leave to intervene should be declined.

PN15

VICE PRESIDENT ROSS: Mr Bromberg, just in relation to the interest point, you say, no doubt correctly there will be a number of people interested, individual employees, employers, etcetera, is not Mr Wood's client in a slightly different position in that they are representing an association, representing the interests of a number of employers in the resource sector?

PN16

MR BROMBERG: I don't seek to deny, your Honour, that Mr Wood's client represents a number of employers, nor do I seek to deny that many of those employers might arrange the work in their businesses by way of rosters, not dissimilar to the rosters that are sought to be introduced by the contractors and Esso in the matter that this proceeding relates to. That just goes, your Honour, to the issue of interest.

PN17

VICE PRESIDENT ROSS: I appreciate that.

PN18

MR BROMBERG: I do not seek to deny that, as I said before, my learned friend's client nor perhaps many other associations or many other individual employers have an interest. What is the purpose of the intervention? If it is to tell us what goes on in the mining industry, Mr Flood gave evidence in the proceedings below. He is a representative of the AMMA. Insofar as material was sought to be introduced relevant to that industry, there was an opportunity to do that. Mr Flood dealt extensively with arrangements in the resource sector. There was no intervention sought by the AMMA below. It can't be the case that my learned friend can now be permitted to introduce any further evidence from the bar table. What is he going to tell us in submissions that is different to what is already likely to come from those arraigned at the bar table?

PN19

JUSTICE GIUDICE: We do not need to hear from you again, Mr Wood. We are of the opinion that your client should be heard and we grant the application. We want to make it clear, however, that any question of fresh evidence would be a matter we would need to consider separately.

PN20

MR WOOD: I thank the Commission.

PN21

JUSTICE GIUDICE: The other application also granted. You first, Mr Parry or perhaps Dr Jessup.

PN22

MR PARRY: I have proposed seniority but I think juniority gets today. I am first, if the Commission pleases. As the Commission is aware, this is an application for leave to appeal and to appeal from a decision of Commissioner Whelan. The Commission will note that this was a major case and indeed the hearing of evidence and submissions covered some 12 days. It as expensive and time consuming for all concerned. It involved expert evidence from overseas. It involved other overseas witness. Various occupational health and safety experts and those with opinions on occupational health and safety and those with opinions on family life and so forth.

PN23

It was very much in the nature of and took the form of an arbitrated case on 14/14 rosters and it was a full-blooded arbitration in that context, like the old days of full-blooded paid rates arbitration where new conditions were to be imposed on people that opposed those conditions. As a consequence of that sort of approach, the decision looked at great depth a the 14/14 rosters and their impact and how far they go around the world. We went to Norway, we went to the North Sea, both north and south aspects of it, we went to the Gulf of Mexico and we ended up in New Zealand, so we covered the globe on 14/14 rosters.

PN24

We even, on occasions, got to look at Bass Strait and the experience of 14/14 rosters down there. So certainly the 14 or so days covered a lot of ground and a lot of evidence. It also looked, in great detail, at the commercial entrails of Esso and the contractors and the relationships between them.

PN25

JUSTICE GIUDICE: 14 days, Mr Parry?

PN26

MR PARRY: Perhaps 12 days - I will use "14" quite a lot, I am sure. Looked at great detail at the commercial and contractual arrangements between the contractors that operate on the offshore Esso facilities and Esso. At great detail at the arrangements between them, the money that flowed between them and so forth. In our submission, this was a proceeding that got way out of control. It was a proceeding that was commenced as a 170MH application in February 2004 and to see how the case developed it is probably apposite for the Full Bench to note an early direction decision of the Commission.

PN27

Now, we have prepared a folder of authorities in accordance with the directions of the Commission. The Commission will note a number of old favourites there, hopefully I do not have to take the Commission to them and they can add them to the set of old favourites in their respective offices. However, one that wasn't a favourite is at tab 18 and this is one of the early directions hearings that was given in this particular matter. This was a decision of Commissioner Whelan. The Commission will see in paragraph 1 - well, above paragraph 1, it is to do with summonses, directions, section 170NA proceedings and future programming.

PN28

The Commission will note from paragraph 1 that it followed the context of the applicants having lodged their application under section 170MH, seeking the termination of agreements and the Commission will note in that paragraph what happened. That is the applicants had filed and served written submissions and two witness statements. It as anticipated, at the preliminary directions hearing and in respect of directions, this was going to be a fairly short case, 2 or 3 days.

PN29

There were directions about filing and serving submissions and witness statements and the applicants did that. Then the respondents, being the CEPU and the AWU issued summons which were directed to the contractors and Esso going to a very large range of matters and also the CEPU and AWU, as the Commission will note from paragraph 3, lodged applications for orders pursuant to 170NA. Now, 170NA applications are described a bit further down in paragraph 7 and 8 and they were to - part of them, as the Commission will see from paragraph 8, seeking some sort of direction that a demand for 14/14 was not a demand that could properly be made because it was not a provision that could be contained in a certified agreement. The argument advanced by those two unions was that the NA application should be heard with the MH application.

PN30

Then there was a very large debate about the summonses. Again there was debate about the summonses directed to the contractors and Esso and also the directions, various directions that were sought in paragraph 45. Now, the conclusions of the Commissioner commence at paragraph 52 and I will not take the Commission through the conclusions with regard to summonses but the Commissioner made some observations about section 170MH and they commence around paragraph 59 where she says:

PN31

Section 170MH raises issues concerning matters of public interest.

PN32

She indicated she was going to follow an approach in Geelong Woolcombing, a matter that the Commissioner had decided some time before. She formed the view, without hearing evidence or full argument, to rule at this stage certain matters are irrelevant to the public interest and she expressed the view, in paragraph 61:

PN33

The whole of the circumstances in a particular matter must be weight in order to determine where the public interest lies.

PN34

In paragraph 64 she - it was argued the relationship between Esso and the contractors was irrelevant. She indicated, paragraph 64, that it was premature to make that ruling and there is clearly a close relationship between Esso and the contractors and a strong interest by Esso in the outcome of the bargaining process. Now, these were preliminary determinations as to the scope of the matter.

PN35

The Commission will note that these sorts of observations made clear the Commissioner saw this as being a pretty broad-ranging exercise. Ultimately she gave directions in paragraph 82. She made the decision not the hear the 170NA at the same time as the MH. She did indicate that she was prepared and considered it appropriate to allow the parties to rely on the evidence adduce in 170MH hearing in the hearing and determination of section 170NA. She amended the directions and set the matter down for hearing on 3, 4, 5 and 6 May, dates which became woefully inadequate as the matter proceeded.

PN36

Now, in response to the material that had been filed by the applicants, the respondents put in, in line with the sort of matters they had indicated to her in these proceedings, very large amounts of material. That included a survey conducted by Dr Yossi Berger of the AWU of the employees and their families, full details of the negotiations and involvement of Esso, much evidence on 14/14 rosters, OH practitioners, a statement from Ms Kathryn Hepler of the CFMEU who gave evidence about the impact of roster change and much material that was derived from and consistent with what this particular Full Bench heard, as part of another Full Bench in the reasonable hours test case. Much of the same material.

PN37

Also were various employee statements giving their reaction to a 14/14 roster, how they wanted to stay on a 7/7 rosters, details of their domestic arrangements, their wives and children and grandfathers and also criticising the accommodation and the sleeping arrangements on the rigs. So it was instantly a very large amount of material covering very broad country. Now, in reply, the applicants put in material in response and that covered in detail the negotiations that had taken place between the parties, what was to happen after the termination of the agreements and that is a matter to which I will return.

PN38

Various statements with regard to occupational health and safety issues. Esso witnesses as to the state of accommodation on the rigs. Mr Flood of AMMA who went into the details on the North West Shelf and also Mr Food went into details about the 14/14 and 21/21 and even 28/28 rosters and also Bass Strait platform drillers. There was a Mr Beath who came from New Zealand that was put in in reply and Dr Parkes, who I will return to, but was, on any fair reading, a world expert on offshore rosters if not the world expert. There was also Mr Simpson, a sleep expert, who studied sleep and the affect on rosters.

PN39

Clearly the material before the Commission, at that time, gave every indication, as I indicated, a full blown arbitration on the introduction of a 14/14 roster or roster change in general. In this context, it is not surprising, we submit, that the Commissioner became seriously distracted from her role. The terms of section 170MH were lost in all these highly contested and contentious issues. The ogre of a 14/14 roster became the main issue. The fact that Esso strongly supported, encouraged and wanted the contractors to have a 14/14 roster made it an ogre too. The case proceeded on that basis.

PN40

All the matters that I have referred to that were in the union material and the applicant's material, in effect, became relevant because that magic phrase "public interest" appears in section 170MH. Now, we contend this decision contains a number of serious errors and perhaps to make that more simple I have prepared an outline of submissions which I propose taking the Commission through, which hopefully details those errors as we see them. If I could hand to the Commission three copies of the appellant's submission.

PN41

JUSTICE GIUDICE: That would be helpful, thank you, Mr Parry. Could I just ask a question while we are in this phase of submissions, there was a consideration by a Full Bench of working conditions offshore some years ago. In particular there was an examination of the - I think a claim for what was referred to as the Norwegian roster, which I think might have been 14 on and 14 off. Did that decision receive any attention in the case?

PN42

MR PARRY: No.

PN43

JUSTICE GIUDICE: Well, perhaps somebody should have a look at it.

PN44

MR PARRY: Yes.

PN45

JUSTICE GIUDICE: My memory may be imperfect about the claim but there was certainly a decision of the Full Bench on offshore rosters in Bass Strait.

PN46

MR PARRY: About 20 years ago.

PN47

JUSTICE GIUDICE: I don't know, Mr Parry, it couldn't be that long.

PN48

DR JESSUP: Just the other day.

PN49

VICE PRESIDENT ROSS: Yes, a bit cruel, Mr Parry.

PN50

JUSTICE GIUDICE: Is there nobody else in the room that remembered?

PN51

MR PARRY: Well, we will certainly find that and make reference to it, your Honour.

PN52

JUSTICE GIUDICE: Yes, yes.

PN53

MR PARRY: Now, I've handed up an outline of our submissions. Now, the decision itself is, if I could just go on assuming the Full Bench has read it. I will just take the Commission through the sort of general structure of it. Leaving aside the formal parts early the Commissioner started off in paragraph 11 looking at provisions of section 170MH and she formed a conclusion - she started with findings in paragraph 25 where she formed her view on the construction of the section and there was argument about where the views stood of employees under 170MH.

PN54

She formed a view in paragraph 27 she was going to follow the previous views in Geelong Woolcombing which is a decision we've included in the folder. She formed a view in paragraph 30 that she found it difficult to conceive of circumstances where the interests of the parties could be so totally divorced from the interests of the community. She in paragraph 32 formed a view, or seemed to form a negative view that she failed to see how the mutual interests of the parties and the termination of an agreement can relieve the Commission of some extent of the statutory obligation to consider if it is not contrary to the public interest to terminate it.

PN55

Yet the strong opposition to termination by one party and the reasons for such opposition incite no public interest considerations. It seems to be a view that the strength of the opposition is a matter that is part of the public interest considerations and she then, in paragraph 33, sets out an extract of Geelong Woolcombing, making various statements about 170MH. In particular, in VI that the interests of the relevant employees and of the employer are relevant to determining the public interest. She then looked at the public interest.

PN56

She looked at the effect of termination. The various arguments, and as to the finding of wages and conditions she makes those findings in paragraph 48 and it appears that she didn't see the removal of the wages and conditions as a matter that was of itself sufficient to excite the public interest. She then looked at the effect of the termination on bargaining and she forms the conclusion in paragraph 58 that the use of section 170MH in and of itself does not amount to unfair bargaining conduct. She then deals with: fail to genuinely bargain the role of Esso and she concludes in paragraph 91:

PN57

It is not in the public interest that the freedom of the parties to negotiate and reach agreement is nullified by the involvement of the party which stands outside the process. Esso is something I will return to.

PN58

She then dealt with occupational health and safety considerations and after a fairly detailed look at this she concludes in paragraph 146 that: she couldn't say that working up for 14 days straight poses an unacceptable risk to their health and safety. She also - it doesn't draw the other conclusion either. She then deals with family responsibilities and she comes to a conclusion after extensive consideration, again, another matter that I will turn to in paragraph 201 and I quote:

PN59

I am satisfied that it would be contrary to the public interest to terminate agreements for the sole ...(reads)... to which I will return.

PN60

She then deals with threat to gas supplies and in paragraph 212 forms the view that whatever risk there was, wasn't public interest matter. She looked at the impact on the community and forms views at paragraph 226 and 227 that it is not possible to assess the potential impact on the communities and that the potential does raise public interest concerns and should be properly investigated and considered - whatever that means. There is then findings regarding the futility and prematurity of the application dealt with at paragraphs 242 and 243.

PN61

Again, not a public interest matter. Improper purpose. Conclusion at 251 and 252. Again, not a public interest matter, and then the positive public benefits, which the applicant said were in terms of the viability of the Esso Bass Strait Gas Fields and the contractors businesses and the Commissioner, with due respect, gives this evidence pretty short - shrift, and discounts it by saying there is a public interest in the provision of energy from the Esso - this is 264, and she says:

PN62

The decisions are hardly likely to be made based solely on marginal reductions in labour costs for helicopter utilisation.

PN63

Now, having dealt with all these issues that have been raised and making, in some occasions, observations and in other occasions findings, she then deals with the section and its requirements in a section headed: Conclusions. The conclusions commence in 267, with the view, in the final sense the Commission after setting out 170MH:

PN64

The Commission must therefore have regard to the matters advances which may activate the public interest and form a view as to whether termination of the agreements would be opposite to that interest.

PN65

So she then looks at those matters which may activate the public interest, and in 271 says:

PN66

It would be industrially naive, however, to ignore the fact that the sole purpose of these applications is to facilitate the achievement of such a result.

PN67

The result is referred to earlier in the introduction of the 14/14 roster:

PN68

While the Commission cannot assume that this will be achieved, it could hardly fail to consider the purpose of the applications and the ...(reads)... contrary to the public interest.

PN69

She sets out some factors then, and then deals in 276 with public interest issues. In substance, the first one she deals with from 278 on is the Esso issue and this goes from 278 through to 283, and in 282 she is satisfied that the level of control exercised by Esso in this case:

PN70

Has served to prevent the contractors from freely bargaining with there employees and their representatives ...(reads)... public interest to facilitate it.

PN71

She then deals with a family responsibilities matter, and she forms a conclusion that in 287:

PN72

The need to support and sustain families are matters of public interest. I cannot therefore conclude that working conditions ...(reads)... to facilitate such an outcome.

PN73

It is two matters that she has focused on. The free-bargaining, as she says, and the effect of the outcome of a 14/14 roster effect. Now, as to all the other matters on which she made observations she says in 289:

PN74

There are a number of other matters raised which give cause for concern about the process of negotiations. There are also other issues ...(reads)... favour termination on public interest grounds.

PN75

She was not satisfied that, "any of those matter incite the public interest to such an extent as to be determinative." She declined the application, and it is that declining of application from which we seek leave to appeal. Now, our outline of submissions that I've handed up commences with the issues that we say she gave weight to, and we say they were in error. We say the necessary questions were: what is the effect of the termination of the agreements. Firstly, secondly, is that contrary to the public interest. With that public interest being considered in the context of 170MH and part VIB, and the orders we seek are set out in paragraph 3 of the outline.

PN76

Now, I'm not going to take this Full Bench through the principals on leave to appeal, the nature of appeal. I have hopefully set out there the principals on which the application for leave and the appeal is being pursued, and the authorities are contained within our outline. Now, in paragraph 9 of the outline I refer to there being a detailed chronology in appendix D to the applicant's final submissions. This was amended by the AWU, and those amendments were commented on in the written reply of the applicants. So if the Commission feels the need to review a chronology there is one there.

PN77

As a general background, of course, there had been negotiations for new certified agreements. The negotiations covered a range of matters. It seems to have been lost a little bit in the proceeding that 14/14 wasn't the only roster pattern that was being raised in the negotiations. Indeed, in the outline I've referred to paragraph 50. In paragraph 50 of the outline there is reference to at least two documents that were in evidence in October and November that went to other possible options that could be the subject of negotiation, and the Commission can see that if it goes to those exhibits, which I don't seek that the Commission does at this stage, but if in time the Commission does, it will see that the contractors were seeking to discuss different forms of roster flexibility.

PN78

Indeed, that document raises the options of 14 on, 14 off, 10 on, 10 off, 7 on, 7 off, and combinations thereof. Also is raised an option of 13 offshore and 15 onshore. These are the sort of options the contractors were seeking to negotiate. Similarly, the letter to organisers referred to in paragraph 50 again raises 14/14, it raises volunteers, it raises the use of casuals, and other matters. So there's a range of matters that were being sought to be negotiated. Now, those negotiations were unsuccessful. They had gone on for some 10 months. There had been proceedings in the Commission on occasions. There had been compulsory conferences.

PN79

Indeed, ironically, as I will take the Commission to the Commissioner herself had actually summonsed Esso to a compulsory conference in December. Now, those negotiations had been unsuccessful. There was an application made to terminate the agreements, and the Commission has heard about the length of those proceedings. In the outline the Commission will note that all parties put in extensive submissions and there are long detailed written submissions that are in evidence which deal with the matters that were raised. Now, the issue, of course, that was of some importance, at least as the applicants saw it, was what would be the position of the employees if the agreements were terminated?

PN80

Now, the Commission will note that these agreements had offshore and onshore components. The offshore components provided for a roster pattern which was 7 and 7. That was the way that hours had to be worked. The hours were based on clocking on 30 minutes prior to the scheduled flight out. One would fly out, work for 7 days, and fly back. It is clauses 32 and 35 of the agreement which deal in detail with hours of work. Now, if those agreements were terminated, what would happen would be that two awards would apply to this set of employees. One being, I will use the jargon, the MECA Award, and the other being the NECA Award.

PN81

Both Awards and their predecessors had underpinned terms and conditions of employees on the platforms for many, many years. These were the awards that were used for the no disadvantage test in respect of certification. They were the appropriate awards. Now, each of them contained fairly detailed provision with regard to hours. I am sure the Commission is well familiar with those. Indeed, we have in our book of authorities at the very end contained clause 11 of the MECA Award, which is the hours of work. I think tab 19 has the NECA Award first, which has clauses 20, and the MECA Award is further on. I think it is page 50. It has a page 50 at the bottom.

PN82

JUSTICE GIUDICE: Which is which?

PN83

MR PARRY: I'm just working that out, your Honour.

PN84

JUSTICE GIUDICE: Alphabetical order?

PN85

MR PARRY: If only. NECA is first.

PN86

JUSTICE GIUDICE: That is N for Nelly?

PN87

MR PARRY: N for Nelly, yes, your Honour.

PN88

JUSTICE GIUDICE: Yes.

PN89

MR PARRY: That has 64A at the bottom.

PN90

JUSTICE GIUDICE: Yes.

PN91

MR PARRY: That runs through on the bottom, your Honour will note page 77?

PN92

JUSTICE GIUDICE: Yes.

PN93

MR PARRY: Then commences the MECA extracts, and they run through the other clauses. Now, they are the hours of shift-work extracts. I do indicate that the MECA Award, for example, has an overtime provision, which is clause 11, and that was the MECA overtime clauses were, indeed, one of the clauses that were before the reasonable hours test case. The Commission will recall in that there were a number of awards put forward by the ACTU. One of those was MECA and, indeed, I will return to that case at some stage. That case dealt in part with AMMA evidence 14/14 and so forth.

PN94

So you have clause 11, which I don't think is immaterial, which has the reasonable overtime provision, and also has the test case provision inserted from the reasonable hours test case, and also I don't think in the extracts there is clause 21 in MECA, which is a distant construction work. That is provisions for distance. One is that it is not reasonable to travel home, and also you will find in the distant construction work where sites can only be accessed by aeroplane, and the employer is required to bring employees home once every 3 months.

PN95

Then we have the hours of work in clause 24 of MECA and you have the shift work clauses. Similarly for NECA. Now, with regard to the MECA provisions on hours of work the Commission will note from the extracts that we've put forward the ordinary hours are set out as being able to be worked in a cycle set out in 24.1. If there is to be ordinary hours set above those, then there needs to be agreement and, indeed, the shift patterns. In 29 there are to be shift rosters set and they can be varied. This is 29.4.1, by agreement, or the by the majority of employees.

PN96

So, in substance, any change from the 7/7 under the MECA Award, and the NECA, we would say, would require agreement, unless, of course, there was change back from a Monday to Friday shift between 6.30 and 6.00, and subject to the working of reasonable overtime, but I don't think anyone is proposing to go back to Monday to Friday.

PN97

JUSTICE GIUDICE: Well, Mr Parry, just to try and summarise the effect of these provisions are you submitting that if the agreement were terminated the existing roster couldn't be operated in the absence of agreement?

PN98

MR PARRY: No, we say the existing roster is the existing roster and that has been agreed to and it would continue on. It can be worked?

PN99

VICE PRESIDENT ROSS: It can't be varied without agreement?

PN100

MR PARRY: That is right.

PN101

JUSTICE GIUDICE: Yes.

PN102

MR PARRY: The flip side of that is we can't impose or require roster change.

PN103

JUSTICE GIUDICE: Well, did the Commissioner find such?

PN104

MR PARRY: No, well, the Commissioner didn't really deal with this argument. This was a substantive, fairly substantial matter dealt with below. Indeed, as we've said in our outline, this position about not being able to change without agreement, the employers gave that evidence. They said they recognised that was the position, as we've said in paragraph - and we've given the extracts in 12.10 where Mr Joyce said that.

PN105

JUSTICE GIUDICE: I'm sorry, in where?

PN106

MR PARRY: In our outline, I'm sorry. 12 - - -

PN107

JUSTICE GIUDICE: (d)?

PN108

MR PARRY: 10(d), yes.

PN109

JUSTICE GIUDICE: 12(d)?

PN110

MR PARRY: 12(d), yes.

PN111

JUSTICE GIUDICE: Yes.

PN112

VICE PRESIDENT ROSS: The evidence can't really go to the interpretation. Was it put in terms in submissions that was what the award meant, and that would be the consequence?

PN113

MR PARRY: That is so. We put that submission. The reason we called evidence of what the contractors said they thought was the position was to negate any suggestion that the contractors were going to go ahead and do something that was inconsistent with the award, notwithstanding what was in the award.

PN114

VICE PRESIDENT ROSS: I see.

PN115

MR PARRY: Now, this wasn't inconsistent. Again, the Commission is correct, it does not matter what people say is the position, but this was the position about 14/14 not being worked without agreement, that was also the position of the unions - the AWU and the CEPU, their interpretation was the same. So we agree. Now, one of the issues that had been raised was the rates of pay and conditions that were to be provided to employees, and it was said that these employees received a rate far in excess of the award rates, and that is true. These are certainly in Gippsland terms, but also in general terms, employees that are very well paid, and there was an argument advanced that employers would seek to - there would be such a big drop that it would have significant repercussions.

PN116

VICE PRESIDENT ROSS: So the pattern of hours couldn't change without agreement, but the wage rates might be reduced to the minimum levels provided for in the award?

PN117

MR PARRY: That is right. What was proposed by the employers was there was offshore platform agreements which were probably back in the days that his Honour, the President, was referring to. There was an offshore platform agreement, and that is an exhibit to the supplementary statement of Mr Joyce. Mr Joyce gave evidence for the applicants, and that is exhibit A13. Now, perhaps if I could take the Commission to exhibit A13. It is in volume 8 in the Appeal Book. It is tab 13. Now, in paragraph 65 of this statement this is what terms and conditions all the ABB were to offer in the event the certified agreements are terminated.

PN118

I indicate that both KBR and Corke adopted and said they were going to do the same thing. It conducted a review, and worked out existing rates which is an attachment. At paragraph 67: maintaining existing roster patterns and having discussions.

PN119

VICE PRESIDENT ROSS: You referred to that offshore agreement, are the rates proposed, based on that offshore agreement, updated for CPI?

PN120

MR PARRY: That is so.

PN121

VICE PRESIDENT ROSS: Is that the essence of it?

PN122

MR PARRY: That is so. The OPAs is attached, and the OPA contained the 7/7 roster and what the proposal - what the employers tended to do post termination was to consult. It was to pay that rate which was about - I can't give - - -

PN123

VICE PRESIDENT ROSS: Is that the 10 per cent that you referred to in the - - -

PN124

MR PARRY: Something around that.

PN125

VICE PRESIDENT ROSS: Yes.

PN126

MR PARRY: Around 10 per cent less. The earnings of the employees would drop about 10 per cent.

PN127

JUSTICE GIUDICE: That is an earnings figure?

PN128

MR PARRY: Yes.

PN129

JUSTICE GIUDICE: Yes.

PN130

MR PARRY: That is not instantly. That was after a month. It was proposed that there would be a month after termination where everything would stay the same. It was proposed by Mr Joyce that there would be discussions in that time about roster change, and so forth, and at the end of that month period the rates would come in - the rates would drop to be around 10 per cent, and the 7/7 roster would continue, and as he makes clear the employers would continue to discuss and consult with the aim and intention of getting roster change, and indicating there might be some volunteers that agreed, and so they might introduce a 7/7 for them, and there might be incentives not determined as yet. As he acknowledged in evidence, you can't introduce these things without agreement.

PN131

VICE PRESIDENT ROSS: I understand the updating of the offer rates. Was it proposed there be prospective adjustment based on CPI also?

PN132

MR PARRY: I don't think we dealt with that detail - - -

PN133

VICE PRESIDENT ROSS: Okay.

PN134

MR PARRY: - - - your Honour. We don't indicate material. If it is a matter of importance to the Commission I could find out what the intention of, but that would be not something that was before the Commission.

PN135

JUSTICE GIUDICE: Mr Parry, I don't want to detain you too long on the detail of this, but I'm looking at paragraph 69 which talks about what happens after the initial month. Where does the evidence actually set out this 90 per cent figure - 10 per cent reduction figure? Is there a calculation attached?

PN136

MR PARRY: Yes, there's an attachment. It is LJ32.

PN137

JUSTICE GIUDICE: Yes, well, there's no need to go to the detail of that if it is there.

PN138

MR PARRY: Yes, the LJ32 goes through the roster, how the calculation is conducted.

PN139

JUSTICE GIUDICE: Yes.

PN140

MR PARRY: The assumptions - there's footnotes, assumptions which compare with NECA and MECA.

PN141

JUSTICE GIUDICE: Yes, yes, thank you.

PN142

VICE PRESIDENT ROSS: Is all that common ground in a sense that the calculations weren't challenged, or anything of that nature? There might have been submissions about the effect of it, but - - -

PN143

MR PARRY: I don't recall those calculations being challenged. I don't recall it being. The issue more turned on, well, they say they are going to do that but they might revert at any time. There's no obligation on them to do it.

PN144

JUSTICE GIUDICE: Your client's volunteered to undertake in that respect.

PN145

MR PARRY: He volunteered an undertaking and during the proceedings we volunteered a deed, and we also in correspondence volunteered a la Emwest a certified agreement, which would prescribe the conditions that we proposed.

PN146

VICE PRESIDENT ROSS: So the debate was really about those issues, rather than about the detail of whether the calculations were right, whether it was 10 per cent, or more or less than 10 per cent, to your recollection?

PN147

MR PARRY: To my recollection that wasn't a matter that was ever debated, in my submission. I recall that my learned friend says 10 to 15 per cent. I recall it being 9 to 12 per cent, but I will find that out and get back to the Commission. So that was what the employers said they would do in the event of termination, and as I said, they gave evidence that they could not introduce roster change without agreement. The unions said the same thing, and the unions also said that they didn't want - the employees also said they didn't want to change from 7 to 7 either. Now, in this context, we say the matter came before the Commission, and we've set out general submissions in our outline with regard to section 170MH.

PN148

JUSTICE GIUDICE: We don't need that exhibit any more?

PN149

MR PARRY: No, no.

PN150

JUSTICE GIUDICE: Not for the moment.

PN151

MR PARRY: Now, to return to the outline, I've made general observations about section 170MH, and we submit as per paragraph 17 that there's no presumption in favour of maintaining the ongoing operation of the certified agreement beyond its nominal expiry date. Then to turn to the issue of the views of the persons bound. The Commission dealt with this in paragraphs 30 to 33, and as I've taken the Commission to already in paragraphs 32 to 33, the Commissioner seemed to in paragraph 32 take the view that strong opposition did excite public interest considerations and expressly found in 33 that the interests of relevant employees are relevant to determining the public interest.

PN152

JUSTICE GIUDICE: 32 was really a comment on the Joy decision, wasn't it?

PN153

MR PARRY: Well, yes it is. It is a comment on the Joy decision, but it seems to have expressed the view therein that strong opposition means something. Now, we submit that this approach that looking at the interests, giving what we say significant weight to the interests of the employees, led the Commission apparently to specifically look at the attitudes of employees to the 14/14 roster and roster change, and we contend that this was an erroneous approach.

PN154

We contend that the inquiry in 170MH is about whether the agreement should be terminated, not what will be the effect of termination, or what the employee's views about the termination are, but whether the agreement should be terminated. We say that this requires that those bound by the agreement are made aware of the application for termination and are able, if they want, to bring forward public interest matters.

PN155

VICE PRESIDENT ROSS: I'm not sure I follow how you separate whether it should be terminated from what the effects of termination would be.

PN156

MR PARRY: Well, if one is asked whether something is going to happen or not, one answers yes or no. One does not say: well, my views on whether it should happen or not are as follows. The language does not say the employee's views as to the effects of termination, or about the termination. It would have been a fairly easy legislative exercise to say: forget the views of employees about the termination, but the parliamentary drafts people have put in the views about whether it should be terminated. Now, one can assume that that language has been used fairly deliberately.

PN157

VICE PRESIDENT ROSS: Would you say it flows from that that the Commission can't consider the consequences in dealing with the public interest issue?

PN158

MR PARRY: If there are public interest matters, aspects that are raised then, of course, the Commission can deal with those, but the views of the employees are not necessarily part of that public interest.

PN159

VICE PRESIDENT ROSS: Yes, I see, I'm sorry. Yes, the views of the employees about the consequences aren't relevant matters.

PN160

MR PARRY: No.

PN161

VICE PRESIDENT ROSS: The consequences may be relevant matters if they attract the public interest considerations.

PN162

MR PARRY: They attract contrariness to the public interest considerations.

PN163

VICE PRESIDENT ROSS: No, certainly, yes.

PN164

MR PARRY: Yes.

PN165

VICE PRESIDENT ROSS: Yes, I see.

PN166

MR PARRY: The Commissioner adopted the view that the interests that the views, we submit - and if one reads Geelong Woolcombing one moves from views to interests in her decision and we, as we submitted to her, that approach was in error.

PN167

JUSTICE GIUDICE: Well, can you take us to what the High Court says about the public interest? I think you are going to do that in a few minutes, are you?

PN168

MR PARRY: Well, yes. I think I've got reference to the QEC decision. I'm not sure which tab it is in. That is the usual starting point. Tab 8. It is not a full extract, but what is contained commences at the top of page 239. That is a reference to the conciliation power at the top of the page. We, of course, have relied on the quote of his Honour Isaacs J in the Merchant Service Guild case which follows. That is what the High Court says in that case, and for our purposes we also say that you don't automatically assume that the concept of public interest is the same wherever it appears in the Act.

PN169

So that concept takes its flavour in part from where in the Act it appears, and that is the Media Entertainment and Arts Alliance case, which is at tab 7. If the Commission has that it is on page 390. It starts at the bottom of the left-hand column on section 111(1)(g)(iii) which deals with the expression to refrain from hearing, and the Commission will recall that section 115 was a section put in the 1988 Act which had a provision in respect of public interest, and I'm sure this Full Bench is well familiar with section 115, but it was in a section which dealt with making of certified agreements. So there is some parallels with the present set of circumstances. We simply note that the High Court said there at the top of the right-hand column:

PN170

The public interest in the question whether further proceedings of an arbitral kind are not necessary or desirable. It is not necessarily ...(reads)... certified under section 115.

PN171

JUSTICE GIUDICE: Does that mean anything other than that the kinds of issues which are likely to affect the public might differ depending upon the nature of the proceeding?

PN172

MR PARRY: No it probably does not mean a lot more than that.

PN173

JUSTICE GIUDICE: It is just a question of ascertaining where the public interest lies?

PN174

MR PARRY: Yes, that is so.

PN175

JUSTICE GIUDICE: It is not a different public interest. Put it that way. It is simply a question of what the factors or issues are which attract the public interest in that particular case.

PN176

MR PARRY: I'm not precisely sure that I go along with that totally, your Honour. The only submission I would put thought is that when one is dealing with 170MH, 170MH falls within a section about bargaining. Indeed, 170MH falls into Division 7, in particular, which is about agreements continuing on, or not agreeing and continuing on. Now, I would submit that public interest in that case should be taken to be really the interests and welfare of the community consistent with the Merchant Service Guild case and not take into account the interests of the immediate parties.

PN177

JUSTICE GIUDICE: Except to the extent they might affect the public interest also.

PN178

MR PARRY: Except to the extent that they might affect the public interest, that is so.

PN179

VICE PRESIDENT ROSS: Do the objects of that part of the Act also cover the factors that might be relevant in the public interest?

PN180

MR PARRY: They do. Yes, they do. So that is really what the High Court says about the public interest. I'm not aware of other cases that really contribute to the debate. We do note that this contrariness of the public interest approach also occurs in various other sections of the Act in regard to terminating industrial instruments or agreements. Now, it is impossible to hypothesise where a termination may be contrary to the public interest, but there are some fairly obvious possibilities. There might be an award in existence at all. There might be an underlying industrial dispute not resolved.

PN181

The agreement might have resolved that industrial dispute. The termination of that agreement might bring back to life that unresolved industrial dispute. Secondly, there might have been a significant demarcation dispute that had been settled by the agreement that again comes back into existence in a real sense by the termination of the agreement. It might be that the underpinning award does not allow for the continued delivery of public services. There are any range of hypothetical examples, but we say relevantly for this case hypothetical future agreements or arrangements and past conduct are not aspects of the public interest.

PN182

If it was to be the case that the public interest was to be judged in that very broad all embracing sense, again, the parliamentary draftsmen could have said so quite easily. The section could say: contrary to the public interest in all the circumstances or something in that sort of manner. However, the draftsman has views that the words are contrariness to the public interest in contrast as against the termination of the agreement. We say that is the touch stone in effect of the subsection. Now, if I could then turn to the specific reasons why the Commissioner saw matters as contrary to the public interest?

PN183

Firstly, is bargaining conduct, and this commences at paragraph 27 of our outline. We contend that the way negotiations have been conducted is of little or no relevance in assessing the essential issue of the affect of terminating the certified agreements and whether such effect is contrary to the public interest. We say that section 170MH or its context does not support the notion that there should be a review of bargaining conduct to assess whether an agreement should be terminated. On that basis the involvement of Esso and the purposes and intents of the contractors are an irrelevant consideration.

PN184

JUSTICE GIUDICE: I know that you are putting these submissions in its particular context, but just to test that broader proposition if, for example, the applicant had been taking unprotected industrial action - that is removed from this case, but the applicant determination had been taking unprotected industrial action, and it was raised by the other party to the agreement as being a factor or reason why, in the public interest, the agreement should not be terminated. Would that be a kind of conduct which might touch the public interest?

PN185

MR PARRY: It had been the taking of unprotected action?

PN186

JUSTICE GIUDICE: Yes, let us assume that lengthy and economically damaging episode.

PN187

MR PARRY: Well, as I understand your Honour's example, it concerns during the negotiating there had been unprotected industrial action taken.

PN188

JUSTICE GIUDICE: No, during the life of the agreement.

PN189

MR PARRY: Yes, well, we submit that that would be an irrelevant consideration. It would have to touch on the termination of the agreement. Section 170MH is not about punishing or warning parties for their industrial conduct during the period of negotiation.

PN190

VICE PRESIDENT ROSS: To extend the President's analogy, what if a party behaves in a manner which is inconsistent or in breach with a term of an agreement, and it might be argued on that basis that they are at a mincing of a tension not to be bound by it. Why would the other party not be able to rely on that conduct in support of an application to terminate the agreement, because as it were one party is not upholding their side of the bargain?

PN191

MR PARRY: Because, we would submit, that you don't have to rely on anything. You should be able to come along and say: we want to terminate the agreement. Unless you can show us how the termination of the agreement is going to be contrary to the public interest. That, in that case, one would anticipate, your Honour, that one would come along and simply make the application.

PN192

VICE PRESIDENT ROSS: I'm not suggesting that you would need to put an affirmative - it would only be in those circumstances, or you'd need to put that affirmative case. If it is put against you that there are some public interest considerations which weigh against the termination, why couldn't you in answer - bearing in mind that often there will be competing interests in an assessment of public interest. Why couldn't you raise that sort of conduct?

PN193

MR PARRY: That is conduct that had been inconsistent with the agreement that a party had been acting inconsistently with the agreement.

PN194

VICE PRESIDENT ROSS: Yes.

PN195

MR PARRY: Well, your Honour, I'm again not sure that that is public interest consideration. If one is acting inconsistent with a certified agreement no doubt there are a number of remedies under the Act in other parts to address that. I'm not certain that the party acting inconsistently with a certified agreement is necessarily a public interest matter. As we submit in our outline, there are a number of ways of dealing with bargaining conduct.

PN196

The Act provides for a number of ways and, indeed, similarly with conduct inconsistent with the Act. Indeed, as we say in our outline, bargaining is not compulsory or obligatory under the Act in any event unless the parties want to avail themselves of other rights such as lock outs or terminating agreements or taking industrial action.

PN197

The effect - to bring the bargaining into play there would have to, as we submit, be some link between the bargaining and the effect of terminating a certified agreement and that would require findings with that link and the Commissioner made no such findings of such link. Indeed, we contend that any such findings would have been pure conjecture in any case and Boulton J made some observations with regard to such conjecture in the second Mount Thorley operations case which is in tab 10. In particular, at paragraph 26 on page 64, his Honour said there:

PN198

In the result there is little prospect of agreement being reached upon a replacement ...(reads)... an agreement on the company's terms...

PN199

And so forth. I do not read the whole thing for the Commission. We say that any such findings, similarly, would have been conjecture. As we again outline in our submissions, the various powers the Commission has to deal with bargaining and to facilitate matters and, indeed, the Commission might also note, on top of those sections referred to, there is section 119 which allows for the calling of compulsory conferences which was, indeed, availed of by the Commission in these particular set of negotiations.

PN200

Now, that then leads to the secondary or third position that you assume bargaining conduct is relevant. You then make an assessment of whether the Commissioner was correct in finding there couldn't be genuine bargaining when one of the negotiating parties couldn't reach agreement without the concurrence of a non party to the negotiations. The Commission made a fairly significant finding in paragraph 281 to the effect that in her conclusion section, the effect - she said:

PN201

The fact that these contractors are prepared to acquiesce in that process and pursue such an ...(reads)... significantly different.

PN202

Well, we say it does. It does make the situation significantly different. Indeed, we submit that there was no doubt, on the evidence, that the contractors themselves wanted to reach agreements which contained changed rostering. Indeed, it was found by her Honour that the idea of 14/14 rosters was the contractors idea and, indeed, there was evidence given to that effect by the contractors and by Esso.

PN203

The Commission found that, as was the evidence at paragraph 79. So the contractors came up with this idea for bargaining and Esso strongly supported it. Now, the Commissioner regarded it as contrary to the public interest to facilitate a situation where Esso was exercising a level of control over the negotiations that were serving to prevent free bargaining. We contend that the notion that if parties, in a bargaining context, are constrained by outside influences, is simply a reflection of the modern commercial world.

PN204

People are constrained by any number of outside influences in their bargaining, be they banks, council or Government. They may be head offices, they may be Ministers they may be ever shareholders and those outside influences can be overriding ones at times. One, the test is really whether the negotiating party is being compelled to do something against its own best interests, against their wishes. We submit that the Commissioner's approach to the effect that the level of control can make bargaining inconsistent with the Act is an unrealistic conception.

PN205

Can we say here, and we have set out the evidence that the contractors wanted to reach agreement and that they did want to pursue roster change. We have set out their statements to that effect. The Commissioner made a finding that Esso was a stranger to the agreement. Whether she meant a stranger to the agreement or a stranger to the bargaining matters little. It is, with respect, an absurd proposition to say that Esso was a stranger to either.

PN206

The construction workers on Esso facilities, the title of each of these agreements is, I am paraphrasing, Kellogg Brown and Root Bass Strait Esso onshore/offshore facilities, ..... ABB Bass Strait onshore/offshore facilities. These are agreements manifestly designed for the purpose of contractors working on Esso facilities. The terms of the agreements themselves make reference to Esso facilities in any number of places. They refer to Esso policies. The rates of pay that appear in the appendices to each are dependent on meeting Esso's qualifications and minimum training requirements.

PN207

There are comprehensive contracts between Esso and these contractors. They included a clause 31 - I think the contracts are in evidence in exhibit AWU21 and AWU22 - they included a clause 31 which required Esso's review and approval over the introduction of change by the contractors. I have, in paragraph 38, referred to the evidence of Mr Lane. Mr Lane said, at paragraph 11312 and 11313 as follows - I took Mr Lane of Esso, to clause 31 and I said, in re-examination:

PN208

You said it was prudent to have such a provision, why so prudent?

PN209

He said:

PN210

Well, prudent in terms of there is significant potential to impact on our operations or ...(reads)... of our safety case.

PN211

I then asked him:

PN212

Is there such provisions in other contractors you have with the contractors?

PN213

He said:

PN214

It is a fairly common clause, yes.

PN215

Now, it is a "fairly common clause" and it is a "fairly sensible clause" and it indicates that Esso can review and approve matters that are to be changed by the contractors. Now, this role of Esso - I should say further, with regard to the contracts, as is obvious from them, Esso pays the labour costs. They are on-costed to contractors.

PN216

Now, this role of Esso and their involvement wasn't any secret to anybody. It wasn't any secret to the union organisers. They, indeed, put in their own statements, great reams of their great knowledge of Esso's involvement in all past negotiations. They were used to this. That is Mr Lee, and I have included the reference there. In this round of negotiations, it is not as though Esso and the unions were content just to talk to the contractors.

PN217

When they wanted to talk directly with Esso, they did so. The ACTU and the unions organised a meeting with Esso on 15 October and, indeed, as I submitted earlier, the Commissioner herself had recognised the involvement of Esso. She had summonsed Esso representatives to attend a compulsory conference in respect of the bargaining round and they so attended. So with respect, as we submit, it is a bit rich to say that Esso is a stranger to either the agreement or the bargaining process here.

PN218

We contend further that the level of control by Esso did not prevent bargaining that was consistent with the Act. If the test is is it fair bargaining, we say it is fair bargaining. Who is it not fair to? The Unions, well, they knew the involvement of Esso. The interrelationship. Is it fair to the contractors? Well, they weren't complaining. They had contracts with Esso. They were performing services under those contracts. They wanted to reach an agreement with what their principal, Esso, wanted. Indeed, their best interests were consistent with what Esso's best interests were.

PN219

Now, the Commission, in this respect, made a number of findings which we contend were overstated. We have prepared, in our outline of submission an appendix which deals with the position with regard to family responsibilities. I understand that my learned friend, Dr Jessup, is going to make submissions about various factual matters and has a detailed attachment with regard to that. I indicate that I adopt that document attached to the Esso outline.

PN220

We have got some parts of it here. We simply submit some of the footnotes do not support some of the more extreme propositions that have been advanced by her Honour and, indeed, some of the observations, particularly some of the more colourful ones, like the hand pulling strings, which we refer to on the top of page 11, does, we submit, appear gratuitous when it is in the context of a matter the Commissioner said she does not need to reach any final conclusions.

PN221

The finding in paragraph 281 is a particularly relevant one, as I have submitted. In that context though, the Commission makes reference to public concerns expressed in other industries. As we submit, if the contractors, as commercial men, make decisions that what is in their own principal's interest is in their own interests, that is a decision made every day by business men and women. Now, in that contest we simply posit the most extreme case against ourselves. That is that there is a contract out there with a head contractor. That head contractor or that contract contains provision that the subcontractor is to take direction in industrial matters and requires approval of any certified agreement with its employees.

PN222

Now, the Commission might note that such a contract is not beyond the realms of possibility and, indeed, is rather likely to occur in a number of building and construction sites. Now, let us assume the direction and approval is given. We submit that the bargaining in that context is not against the public interest. Surely any agreement struck is certifiable. If such bargaining takes place, does that preclude an existing agreement being terminated? If the answers to those propositions are yes, then the industrial section 170MH will become unworkable, in our submission. In our submission the answers to those propositions is clearly no, and those propositions do not have any part, in our submission, in 170MH.

PN223

Now, our final proposition is even assuming the bargaining was inconsistent with a statutory scheme, then the real issue is how this related to termination of the agreements and we say that the Commissioner made no findings that linked the two in any event and in the absence of those there can be no finding of contrariness to the public interest under 170MH.

PN224

Now, if I could then turn to family responsibilities and discrimination. Now, the Commissioner dealt with this concept. I think her conclusions, in respect of family responsibilities, cover quite a number of pages. They commence at paragraph 172. There is discussion of 14/14 and 7/7. There is reference to the survey of Dr Berger. There is, in paragraph 181, a very cursory reference - sorry, paragraph 178, there is a reference to Dr Parkes as to partings and reunions.

PN225

There is then reference to Ms Hepler. There is then reference, in 181, to Mr Simpson and Dr Parkes and at 182, notwithstanding what Mr Simpson and Dr Parkes and Mr Beath said, it was said to fly in the face of views expressed by employees in their evidence and in the survey material before the Commission. That was survey material which asked 7/7 workers and their families whether they wanted to change to 14/14 and that was asked, I think, in September or October in the middle of very detailed and heated negotiations and industrial action taking place with regard to this issue.

PN226

The evidence was that the survey showed employees were generally but not universally, opposed to any shift change. In a way that is what the Commissioner saw. After dealing with some more on this, she deals with Dr Berger and the Family Law Act gets a run. Shrimpton and Storey gets a quote in paragraph 187. Now, the ironic thing about Shrimpton and Storey article is if one goes through it, on just about every page the propositions that are relied on for just about every proposition that Shrimpton and Storey advance, is research by Dr Parkes. I think, if one looks at any research in the area of the effect of offshore rosters, both on the employees themselves and their families, Dr Parkes is referred to.

PN227

So one quote is taken out of Shrimpton and Storey which generally, I should indicate, as we have put in our material and attached, says: on the whole people adjust to roster change. At paragraph 190, the Commissioner says:

PN228

While there are actions which can be taken to ameliorate the effects the absence ...(reads)... already have the optimal roster.

PN229

Now, rather than continuing with this decision, and it goes on and I will return to it shortly, we should, rather than getting into this interesting area of 14/14 rosters and the American experience and the Norwegian experience and everywhere else in the planet, we should ask exactly why are we looking at all this material.

PN230

Why are we actually looking at a 14/14 roster? The Commissioner linked this to section 170MN in her finding at 201, that it was contrary to the public interest to terminate agreements where the sole purpose of such termination is to facilitate the introduction of rosters. Now, our crime was to have a purpose. Now, it is where the legislative scheme requires purpose to be assessed and judged against industrial standards or some other criteria, the Act says so.

PN231

Section 170ML(2), section 170MN has the word "purpose" in there. Section 170MH(3) does not have the word "purpose". Again, we can assume the Parliamentary draftsman didn't find that "purpose" was a relevant part of this. So our problem was we had a purpose. As I have taken the Commission to, the actual introduction of the 14/14 roster was highly speculative at best. I have taken the Commission to the earlier evidence about what the employers proposed to do and their acknowledgment that they couldn't do it without agreement and the union's position. I repeat those in paragraph 46.

PN232

So we submit that the detailed consideration based on an assumption of the introduction of 14/14 roster was an irrelevancy. The parties were not being asked - she was not being asked to facilitate the outcome of a 14/14 roster. She made no findings to the effect that that outcome would be facilitated. The problem that she saw was that we had that purpose. This was why she saw it activating public interest here. This is what she repeats in paragraph 271 in her conclusions where she said:

PN233

It would be industrially naive to ignore the fact the sole purpose of these applications is ...(reads)... contrary to the public interest.

PN234

We submit that the conclusions are based on the purpose and that is an irrelevancy. In effect, what happened was the Commissioner became an arbitrator on 14/14 rosters and roster change. She has followed that course and in paragraph 198 she - the error is manifest when one looks at paragraph 198:

PN235

Given the material before the Commission and in particular the survey material ...(reads)... family responsibilities.

PN236

As I submitted earlier, the agreements provided for 7/7 shifts. The awards came into existence and they provided for the safety net provisions and the 7/7 roster only being changed by agreement.

PN237

Now, we do note here that those awards, both NECA and MECA contain the test case variations from the working hours test case. I do not think I have got the full set - yes, I do. Now, as we submit in paragraph 50, the conclusions of the Commissioner assume the introduction of a 14/14 roster. We have already made submissions that that wasn't the only one in any event. Now, let us move on from that error to assuming 14/14 was an option that was to be introduced.

PN238

We contend, rather than assuming that that 14/14 roster was to be assessed against agreement it should be assume the 14/14 roster could only be introduced by agreement and there might have been a number of permutations and combinations. It was impossible for the Commission to make any assessment at that stage of how the 14/14 roster or roster change would be introduced but let us go on an assume that it was to be a 14/14 roster.

PN239

That was to be the only roster that was to be introduced. That was to be introduced against employees wishes. Again, assumptions on which there is no evidence. Firstly, 14/14 roster is a pattern worked all over the world offshore. It is worked in the United States, it is worked in the North Sea, it is worked in New Zealand, it is - in Norway there was some evidence that there was a 14/28 roster but somehow that wouldn't address the family problems because you would still have 14 days at work.

PN240

As far as the Australian experience went, there was significant evidence given by Mr Flood as to 14/14 being the norm on offshore facilities in the North West Shelf and, indeed, there was evidence of 21/21 being worked and there was one case, I think in the Timor Sea, where 28/28 was the pattern that was worked. These were patterns that were worked under agreements certified by this Commission.

PN241

JUSTICE GIUDICE: With a public interest test?

PN242

MR PARRY: Yes. There are AWAs. There are some that work under AWAs.

PN243

JUSTICE GIUDICE: I was just referring to the fact that under the previous - prior to '93, I think, there was a public interest test in relation to agreements which only applies now where there is an issue about no disadvantage test. Certification of agreements generally does not depend upon the Commission's satisfaction that it is in the public interest to certify the agreement.

PN244

MR PARRY: No. These are long - there was a longstanding pattern in the North West Shelf.

PN245

JUSTICE GIUDICE: They would predate '93.

PN246

MR PARRY: They predate '93, yes. But there are AWAs as well in the Timor Sea, in particular, I think. Mr Llewellyn, formerly of the AWU, came along and gave evidence as to those circumstances and thee was general - I do not think there was any dispute about these patterns being worked but just the conditions that applied therein. In our outline, in paragraph 52(a), we have referred to this pattern also being worked in Bass Strait and there are a number of agreements, particularly concerning drillers, where 14/14 pattern is worked and has been worked in Bass Strait, worked under LJ agreements with the AMWU and the AWU. We submit, on that basis, that it absurd to, in our submission, reach a conclusion asking for a 14/14 roster in Bass Strait is against the public interest.

PN247

Now, this bench, as constituted, sat through the working hours test case along with other members of the Commission and heard large amounts of evidence about the effect of long hours, work life balance, families, reading to children, I don't know. Very detailed case about a lot of matters. That was in the context - I think what is in the book here is only an extract but there is the full working hours test case and I have three copies of it.

PN248

JUSTICE GIUDICE: I will add it to our collection.

PN249

MR PARRY: My learned friend I do not think has brought them along and so would the Commission mind if I handed up two.

PN250

COMMISSIONER GAY: You can have mine, Mr Parry.

PN251

MR PARRY: I wasn't going to suggest who was going to allocate it, Commissioner.

PN252

JUSTICE GIUDICE: Would you like three.

PN253

MR PARRY: I will hand up mine when I have finished to add to the collection.

PN254

JUSTICE GIUDICE: We are only making those comments because we are pretty familiar with the contents of it, as you would imagine.

PN255

MR PARRY: Yes, I understand that and I don't want to take you through chapter and verse. The Commission will recall the ACTU claim, conditioned on extreme hours. Extreme hours was an average of 60 hours per week over a 4 week period. Here, over a 4 week period, a 14/14 roster, results in an average of 42 hours per week. So it is not even within the extreme range of what the ACTU considered.

PN256

The Commission will recall in that case Ms Hepler giving evidence, Ms Pocock giving evidence. Again, in large part the proceedings before Commissioner Whelan re-ran, with respect, many of the arguments this Commission heard in this case. Now, the Commission - I think it's in paragraph - recognised, of course, that long working hours impacts on family responsibilities and I think that conclusion is in paragraph 169. The commission recognised that financial considerations can sometime ameliorate that. There was arguments in paragraph - it might be noted and I think as the Full Bench noted in paragraph 220 the ACT didn't make any claim for maximum hours or maximum hours of overtime or reduction in standard hours.

PN257

They had a claim which, in effect, allowed for in the event of extreme hours which our pattern wouldn't fit into lesser - days off. Now, the decision, paragraph 247 said as is logical that reasonable overtime isn't one way, you have to look at reasonable overtime in a full context. But then in dealing with the ACT's claim at paragraph 261 the commission looked at whether it created test case standard and, indeed, made reference to fly-in fly-out, paragraph 272, MIAS evidence about consecutive rosters, long periods of time off duty - this is in paragraph 272 - fly-in, fly- out and hydrocarbons and mining industries particularly in remote areas.

PN258

It's not as though the fly-in, fly-out long-term rosters wasn't a live issue that the ACT agitated in that case. And finally the commission came to a view that it was appropriate to include a test case provision in award about working reasonable overtime and that is set out in 278, that is a provision that now appears in the underpinning awards in this case. And we say those underpinning awards clearly are now designed to and can comprehend the working of longer patterns by agreement and we say that's consistent with what the Full Bench decided in the working hours test case. Now, the - - -

PN259

JUSTICE GIUDICE: What's the structure of the current roster as between ordinary hours and overtime?

PN260

MR PARRY: That's a fairly complicated calculation I should - - -

PN261

JUSTICE GIUDICE: Yes. Well, it may not matter.

PN262

MR PARRY: I think there's a calculation method set out in the certified agreements and that's why Mr Joyce has calculated when going back to the MECA has to be the calculations he's included in LJ32 which is the attachment to his supplementary statement. So - - -

PN263

JUSTICE GIUDICE: Yes.

PN264

MR PARRY: Obviously the 42 hours, given it's Tuesday - Tuesday at present incorporates Saturday, Sunday work and so forth. So there has to be assumptions that that's overtime work - well, doesn't have to be but there is certain assumptions made. I thin there's - to be fair, I think there's a couple of ways - or a few ways one could approach it consistently with the award.

PN265

JUSTICE GIUDICE: And the 14 on 14 off roster might presumably take a number of forms also as to the calculation of what's ordinary hours and what's overtime?

PN266

MR PARRY: That's so. Now, the - we do say in respect of 14/14 that in some ways the commissioner placed excessive reliance on international conventions and recommendations and we did draw her attention that, in this country, at best the working of a 14/14 could at the very highest - we don't agree with it - constitute indirect discrimination. And the Sex Discrimination Act doesn't prohibit indirect discrimination based on family responsibilities in any event.

PN267

In substance the real concern of the employees wasn't so much the 14/14 but the change. And we say that focus on the individual employees wasn't a public interest matter. We say in this context that - I've mentioned Dr Parkes on a couple of occasions and Dr Parkes was and is a Reader in Applied Psychology at the University of Oxford. She is qualified in ergonomics, clinical psychology, a doctorate in applied psychology, Fellow of the British Psychological Society and she has pages of publications in the area of working on offshore platforms.

PN268

She has produced a number of papers and they are in evidence many of them. They are on - and they're titled, one is exhibit AWU28 Psycho Social Aspects of Work and Health in the North Sea Oil and Gas Industry. There is exhibit - these are all referred to a statement which is exhibit A17. She comments on Dr Berger's report in that. She comments on Dr - I'm sorry, on Kathryn Hepler's report in exhibit A18. Also tendered were Psycho Social Aspects of Work and Health in the North Sea Oil and Gas Industry and rather relevantly exhibit 41 which is in volume 9, Living Two Lives, Perceptions, Attitudes and Experiences of Spouses of UK Offshore Workers by Parkes, Karnel and Farmer, a published paper subject to peer review on the experiences of spouses of UK offshore oil workers working 14/14.

PN269

One couldn't - highly relevant, highly important, persuasive material. Also in evidence was exhibit A43, Survey of Psycho Social Factors of Work and Health in the North Sea Oil and Gas Industry Offshore Environment mid-1990s. She is, in our submission - and we submitted this to the commission by - manifestly the world expert in this area. When one's reference - one is taken to Shrimpton and Storey, as I submitted, it is simply riddled with reliance and dependence on the views of Dr Kathryn Parkes.

PN270

Now, it's fairly - we submit that as against this material, academic expert material, practical of the highest level, against that was weighted a sort of stream of consciousness survey by Dr Berger chatting to a few people in the middle of an industrial dispute. And that stream of consciousness material is preferred, quoted extensively as against the world expert. And we say the commissioner does not give any cogent reason for rejecting the views and opinion of Dr Parkes.

PN271

And we submit that that was a fundamental error in the way the commissioner approached this issue of family life balance in any event. Now, we also contend that some of the factual findings that the commissioner made in her decision were not reasonably open to her. And, for example - and it's replete but the finding in 195 that extending the time periods for which fathers are forced to be away from their families run counter to these propositions. Or couldn't we say, firstly, we're not going to force them, we can't force them but, in any event, let's assume we could force them - all right, they might be away for 14 days but they're at home for 14 days.

PN272

It seems to have been sort of lost in this that as the quid pro quo for 14 days off come 14 days on and, further to that, perhaps it also hasn't come through is that these employees are given - there's a six week break as well in this shift roster cycle which incorporates their annual leave.

PN273

JUSTICE GIUDICE: It's 20 weeks work, is it?

PN274

MR PARRY: 20 weeks work a year. I mean - well, it can be said that's a full week, that's a full week, that's 7 days. But one - looking at it over a year - cannot say it's onerous and unfair and there are significant periods of time, some 32 weeks, when dad can be at home with his son or his daughter. So in all the excitement in this and the passion that comes through in the decision we say that 14 - us having a purpose of wanting a 14/14 cannot be against the public interest. And to suggest that the imposition of a 14/14 is against the public interest, in any event, is a grave over statement.

PN275

Now, we do attach an appendix A and that appendix A deals with various findings regarding family responsibilities. And for example I've put in - the first one there is paragraph 172. Paragraph 172 starts with - this the heading, Family Responsibilities - Findings Family Responsibilities. Under this the main evidence before the commissioner in relation to this issue arose from the statements made by employees concerning their own circumstances and the outcomes of the surveys conducted by Dr Berger and Ms Lester.

PN276

I should indicate Ms Lester being the union's solicitors conducted another survey during this period of calling, handing out forms via organisers which basically said generally that they didn't want to change their 7 by 7 roster. Can we say that wasn't the main evidence. Again, Dr Parkes seems to have disappeared off the screen. Mr Simpson, the sleep expert and the Australian - an Australian that has been involved in 14/14 - - -

PN277

JUSTICE GIUDICE: Wasn't Dawson the sleep expert?

PN278

MR PARRY: I'll just - - -

PN279

JUSTICE GIUDICE: I'm wrong about that, am I?

PN280

MR PARRY: No, Dawson was a sleep expert that gave evidence to the reasonable hours test case.

PN281

JUSTICE GIUDICE: Yes, but I thought he gave evidence in this case. I'm wrong about that, am I?

PN282

MR PARRY: No, we didn't have the - all the usual suspects in this case, just some of them. Indeed, we found in the reasonable hours test case - I'm sure your Honours and the Commissioner will remember it - evidence given by Professor Dawson about 14/14 rosters and about them being able to be worked and him not having a particular problem with them. That transcript is probably in all this evidence somewhere being put to Ms Hepler - - -

PN283

JUSTICE GIUDICE: Yes, I'm sure it's referred to.

PN284

MR PARRY: Yes.

PN285

JUSTICE GIUDICE: In any event Mr Simpson was a - - -

PN286

MR PARRY: He was a sleep expert or he was - in this case, who knew a bit about the north-west shelf and the 14/14 there. But the commissioner chose, for whatever her reasons, not to look at the evidence called by the applicants of Parkes, Beath and Simpson. And indeed - as I'm reminded, the commission will see Mr Chris Beath referred to in paragraph 1 of that attachment. Mr Chris Beath was the manager of STOS which was the operator of the Maui A Platform in New Zealand.

PN287

And that was a platform that in the early nineties, around 93 had changed from a 7/7 roster to a 14/14 roster. And Dr Beath - I'm sorry, he's not a doctor, he was the manager. Mr Beath gave evidence as to that change, how it went ahead and the acceptance of the change and he gave fairly cogent and detailed evidence as to how that change went ahead. He lives in the area, still knows the people, he daughter worked on the platform, he was on the platform and that evidence, which we submit was fairly relevant cogent, again got very short shrift in the decision of the commission.

PN288

And what was given particular weight to was the Berger survey material and we've set out in detail our criticisms of that. We do indicate that - and it appears in paragraph 12 of 113 of the outline - of the attachment that Dr Parkes was critical of Dr Berger's report. And again I'm not going to take the commission through each and every criticism of the findings but they are set out in a fair bit of detail in the attachment. So we say the commissioner was in error in her approach to the 14/14 and we say the purpose of the introduction of it - and even the introduction of it was not a matter that was contrary to the public interest.

PN289

Now, your Honour, as I submitted earlier, there were other observations made regarding other matters in the decision which the commissioner in paragraph 289 considered did not excite the public interests. Now, we don't necessarily agree with some of her observations and findings and, indeed, our appeal grounds maintain our criticisms of those. However, they do not appear to be bases upon which the commissioner would have been satisfied that termination of the agreements would have been contrary to the public interest.

PN290

So we contend that when the role of Esso is taken out of the equation as it properly should be and when the advent of a 14/14 shift is taken out of the equation then there would have been no reason - and we say they were both in error taken into account - there would have been no reason why the agreements would not have been terminated. And on that basis we say when those errors are corrected as we submit they should be by this Full Bench, then this Full Bench can confidently form the view that the agreements should be terminated and we seek that the leave to appeal be granted, that the appeal be upheld and, as a consequence of that re-hearing, we would seek an order that the agreements be terminated. If the commission pleases, those are our submissions.

PN291

JUSTICE GIUDICE: Thanks, Mr Parry.

PN292

DR JESSUP: If the commission pleases, we have prepared an outline and I'll ask for that to be made available to the commission. In paragraph 3 of the outline we have dealt with the question of standing but I have reason to believe that that won't be controversial and so I won't dwell on it further at this point. In paragraph 4 we have referred to the original applications and might we say parenthetically at this point - and it might be taking something of a liberty on my part not having been involved below but something which, in our submission, needs to be said and it picks up on something my learned friend, Mr Parry, said.

PN293

It isn't a very satisfactory state of affairs in our respectful submission when a relatively simple application made in February this year still hasn't been - well, it was resolved by the commissioner in her decision, but it took much longer than it should have and the length and the size and the cost and the inconvenience of the application and the fact that the parties are held out from the benefit of the termination order, if one is to be ultimately made, all because of the rulings which the commissioner made about the scope of relevant issues under section 170MH.

PN294

And we make the same submission that my learned friend made in that regard that the bulk of the time, energy, heat and light which was being shed since February has been on the question of whether it would be contrary to the public interest for the parties to make a particular agreement in the future rather than whether it was for the contrary to public interest for the parties - or for the parties present agreement to be terminated. So in paragraph 5 we set out the simple steps that the commissioner was required to take and then in paragraph 6 and following we've attempted to explain how the commissioner approached her task.

PN295

She did deal very substantially with the public interest. And in paragraph 8 those are the matters upon which she held that a contrariety would not arise if the agreement were terminated. So those are the matters which, in effect, the contractors didn't have to worry about. They won on those points as it were. Then in paragraph 9 there were a number of things that were either irrelevant, neutral or equivocal to which the commissioner referred and, in essence, those weren't the bases upon which she acted either.

PN296

So we come to paragraph 10 of our outline and that's the gravamen of Commissioner Whelan's decision, namely, that it would be contrary to the public interest to terminate the agreements on two bases and two bases only. One was the impact of the involvement of Esso upon the free bargaining process and the other was the impact on the family responsibilities of the employees of the removal of rostering arrangements in the current agreement when the contractor sought the introduction of rosters with longer cycles.

PN297

Now, both of those considerations relate to issues other than the termination of the existing agreements. The first consideration relates to the process of bargaining for a new agreement and the second consideration relates to the content of a new agreement. And we then say in paragraph 11 that the commissioner looked at other considerations in the concluding paragraphs of her decision and my learned friend, Mr Parry, has taken you to that. And she said that the two particular considerations to which we've referred in paragraph 10 were sufficiently weighty to overbear any considerations the other way.

PN298

Now, we wish to deal with the two matters or the two points upon which Commissioner Whelan held that it would be contrary to the public interest and then we want to say something about two other matters which arise in the context of her decision. The first is the content of the notion of the public interest under section 170MH and the second is sub-section (2) of the section where the commission is obliged to find out what other views of the persons bound by the agreement.

PN299

May we commence then, if the commission pleases, with the critical treatment which the commissioner gave to the impact of Esso upon the bargaining of the contractors in relation to a new agreement. Her decision was that the freedom of the contractors to negotiate with the unions was being nullified and she said that at paragraph 91:

PN300

And that genuine bargaining -

PN301

a term she used at paragraph 89 -

PN302

was in effect being frustrated as a result of that.

PN303

We say that recourse to this consideration, whether she was right or wrong about that, recourse to it was erroneous in two principle respects. First we say that the role of Esso in the bargaining process related not to the termination of the agreements, but to the process of negotiation for new agreements and was not relevant under 170MH.

PN304

Secondly we say that the concept of public interest under 170MH must necessarily be informed by the objects and scheme of the Act and that broad proposition appears to be common ground between ourselves and the commissioner. Now, by way of elaboration of that second point, if the two parties made an agreement or make an agreement and seek to have it certified, it will be no disqualification of them - of that certification process, that one of them had negotiated under the direction of a third party or had reached agreement only after obtaining the approval of a third party.

PN305

So long as there was agreement in fact the commissioner would be required to apply the specific criteria in division 4 and certify the agreement so - - -

PN306

JUSTICE GIUDICE: The same principle would apply - - -

PN307

DR JESSUP: Exactly the same principle, yes. Yes, well, we come to them later.

PN308

JUSTICE GIUDICE: If for example- - -

PN309

DR JESSUP: Yes, it's - with the greatest respect to the commissioner, to anyone with a modicum of understanding of part VIB of the Act that is how it works. In fact, this was one of the big changes that goes back to probably to 1992 and everyone was saying at the time the commission was saying at it National Wage decisions: good heavens, they've taken the public interest out of certification.

PN310

And ever since that time it simply hasn't been a defence to an application or a response to an application for certification that the certification of the agreement would be contrary to the public interest. So the commissioner couldn't say to the parties - if they were coming together and wanted an agreement certified, the commissioner couldn't say to them: I've got reason to believe that one of you has only reached this agreement because you've got either a principle or a client or a contract or the government or whatever directing you what to do. That wouldn't be a ground for refusing certification.

PN311

Now, in addition to that there is no statutory obligation to bargain in good faith and the Full Bench so held in the Sensis case to which we've referred in paragraph 16. What the commissioner has done is to impose, as it were, a side door obligation to bargain genuinely and she had defined the content of that obligation by reference to criteria which don't appear in the statute and she has held that to the disadvantage of a party who is entitled to have their agreement terminated subject only to contrary factors apropos the public interest.

PN312

We say you can't use the public interest to introduce limitations, detriments and considerations and things in through the side door which run counter to the scheme of the Act itself. So that takes me through to the end of paragraph 17 and all paragraph 18 does is to say, well, as a result of that she failed to exercise the jurisdiction and your Honours will be well familiar, as will your Mr Commissioner, with ex parte Hepburn and Quade's case in which - if a tribunal is governed by irrelevant circumstances in exercising a statutory function or role then, of course, it fails to exercise the jurisdiction which is given to it.

PN313

So all of that, with respect, is we would submit somewhat obvious and the way in which the commissioner went off the rails in that regard is equally so. Now, may we turn to the - what we have called for want of a better word, the merit aspects of Esso's role in all of this. If you actually - and the commissioner never set it out as we have in paragraph 19, but if you conceptually separate the steps in her approach it involves three propositions.

PN314

First, that Esso in fact exercised such a degree of control over the negotiating positions of the contractors as to nullify their ability to bargain with the unions in their own best interests as employers. Second, that Esso was a stranger to the negotiations with no legitimate interest in the outcomes. And, thirdly, that in those circumstances when you have both A and B, that situation was so contrary to the assumptions of free bargaining underlining part VIB as to be contrary to public interest.

PN315

Now, in our submission, each of those propositions is flawed. The contract between the contractors and Esso were in evidence. The closest they came to investing Esso with the degree of control found by the commissioner was in clause 31 which is in appendix 1 and if you have a look at clause 31 which is on page 17 of the outline, you will see that it gives Esso a degree of negative control. That is if the contractor proposes to make any change, the contractor has to go via Esso and obtain Esso's approval of the change.

PN316

It does not empower Esso to direct a change. That is to say it doesn't have an operation in a positive direction. The contracts do not have the kind of clause that you find in some contracts under which the client is able to direct or manipulate all matters of industrial relations within the employ of a contractor under a cost-plus or rise-and-fall type contract. So what the Commissioner had to do in the absence of any specific contractual provision for control was to look for less clear indications and to work by a process of inference. Now, if you go to the Commissioner's decision, she deals with this in paragraphs 80 or thereabouts and following and the first one we want to deal with is paragraph 82 and let me explain how this has been done.

PN317

You will see that paragraph 82 ends with a footnote 32 and that footnote 32 is a series of transcript references. What we have done in an appendix to this outline, appendix 2, is to set out what all of those paragraphs are. You will see if you read that, and we won't labour the Commission through them at this point, but the Commission will see that the actual findings in paragraph 82 involve a considerable stretching of the evidence as it was given in those paragraphs, a considerable stretching.

PN318

There is no justification for the Commissioner concluding, for example, that no decisions were made without obtaining Esso's approval. The Commissioner has introduced this concept of vetting - it may be only pedantic but at every point the Commissioner does seem, with respect, to have been concerned to put the most negative spin upon the evidence. Now, in appendix 2 the course we have followed was to set out the paragraphs upon which the Commissioner relied in the transcript but where we have introduced new paragraphs, and that has happened on one occasion, we have underlined it.

PN319

The point of that is to show that there are paragraphs within the general flow of the evidence to which she referred that did not count in the direction of her findings but which ought to have been equally referred to to give balance. For example, on page 19 we have underlined one in the middle of the page, paragraph 10,350. The evidence for the contracts was: we are not going to put other things, we will - not going to do absolutely everything to keep happy. If we don't believe in something we will let them know.

PN320

Now, in another case in which we were - out only ground of appeal was that the Commissioner had reached the wrong findings of fact, that may be one thing, but this is a case in which we say initially the Commissioner failed to exercise her discretion. "Discretion" may not be the right word - failed to exercise the proper statutory function with which she was entrusted. So her findings, we say, effectively don't count.

PN321

Now, if the Full Bench in approaching the question of whether there should be termination or not considers that it might be influenced by her conclusions in point of fact, that is the point at which we come in and say: no, you shouldn't. Her conclusions do not represent a fair or balanced summary of what the evidence actually was in this respect. Similarly paragraph 84 of the decision that all the benefits to be derived from a 14/14 roster would be gained by Esso, that is what the Commissioner said. We say that that is a much more categorical statement than the evidence will admit. We have set the evidence out in appendix 3. We have followed the same convention, that is to say the paragraph numbers to which the Commissioner referred in footnote 35 are set out and others that she should have taken into account are set out there and underlined in appendix 3.

PN322

Besides, we ask rhetorically, what would it matter that all the benefits to be derived from a 14/14 roster would be gained by Esso? How does that relate to control? It only relates to control if you can infer from that that Esso might have had a good reason to control the contractors. Well, that may be accepted. It might have had that reason, but of course that would always be the case if there interests were in the same direction. It does not mean that there was evidence from which you could conclude that control in the pejorative sense existed.

PN323

Now, there was apparently a suggestion at one point that the matter should be referred to the Commission for consent arbitration. The Commissioner said it was something on which she did not need to reach a final conclusion. If so, in our submission, it was no place for her to observe, as she apparently did in a pejorative way apropos Esso and the contractors, that Esso was the hand pulling the strings and that is what she said in paragraph 88.

PN324

If we can take you back to appendix 2 the material in that demonstrates that counsel for the unions, my learned friend Mr Bromberg, was attempting to have the contractor's witnesses in effect accept that an adverse outcome from a consent arbitration for them would have solved all their problems and the unions' problems. The unions would have got what they wanted and the contractors would have been able to turn their palms upwards and say to Esso: well, there you are; it is not our fault, we went to an independent arbitrator.

PN325

It is that line of evidence to which the Commissioner seems to be referring when she said Esso was the hand pulling the strings. As it happens, the evidence went on to say that the contractors did not agree to a consent arbitration because they doubted they would succeed. I skipped paragraph 23. If I could just take the Commission back to that. We have dealt with paragraph 85 of the Commission's decision in appendix 4 in the same way that we dealt with the other sections to which I have referred.

PN326

So it is clear that Esso influenced the contractors in their negotiations. We say there is nothing at all improper or unacceptable about that. There's not a thing in the Act which would run counter to such an operation. The Commissioner put it higher than that, however, and we say it is to that extent not properly based in the evidence. She said that there was such a degree of control as to nullify any attempt by the contractors in their own self interest - to act in their own self interest. We submit that the evidence didn't go that far. Now, I'm at the top of page 7 of the outline. Is the Commission proposing to take a break at 12.45?

PN327

JUSTICE GIUDICE: Yes, we have reached a unanimous view on that. We will resume at 2.15.

LUNCHEON ADJOURNMENT [12.45pm]

RESUMED [2.16pm]

PN328

JUSTICE GIUDICE: Dr Jessup?

PN329

DR JESSUP: If the Commission would kindly turn back to paragraph 19 of our outline, we were seeking to contest the validity of each of the propositions which was implicit in the Commissioner's reasoning on this aspect of the case, that is to say the merit aspect of the role of Esso, and down to and including paragraph 25 immediately before lunch we had got to the point of having completed our treatment of the first one, namely that the exercise of control which Esso in fact had was to such a degree as to nullify the ability of the contractors to bargain in their own best interests.

PN330

We submitted before lunch that the evidence didn't sustain that proposition on any fair and balanced reading of it. We now go to the second one in paragraph 19, namely that Esso was a stranger to the negotiations with no legitimate interest in the outcomes, and we deal with that at paragraph 26 of the outline. We submit that the proposition that bargaining between (b) and (c) when (a) must meet the cost of (b)s concessions can only be genuine if freer to negotiate without any direction or influence from (a) is far from obvious. In fact, we would say it is wrong.

PN331

So too is the validity of the bald assertion in paragraph 280 of the decision of the Commissioner that the Esso contractors axis was not relevantly analogist to an axis which existed between, for example, a Government and its departments, or for that matter a number of other relationships of the kind to which my learned friend, Mr Parry, referred. An employer such as the contractors in this case must negotiate in the real commercial, financial and industrial situation in which it actually operates.

PN332

You can't say: how would these contractors have conducted fair negotiations if they weren't under the influence of Esso, if they weren't under contract to Esso and if Esso didn't have an interest in the outcome of a commercial kind. Any attempt to conceive what the employer what would really want or would really be prepared to accept if the realities were not as they were would be artificial and would not have a part in the scheme of Part VIB. We give another example of the employer which has been placed on a short leash by its bank and we say that that employer is genuinely bargaining even when it does, as it must do, regard itself as governed by the limitations imposed by the bank, the bargaining is based on reality and is genuine.

PN333

Now, as the operator of the off-shore platforms concerned in these proceedings, and I take it that the Commission understands that although the companies and their employees in this case are construction entities, they are working on platforms which are operating platforms. So these are Esso's platforms producing resources from the sea bed and these third party contractors come in to do specific capital works as required from time to time. So in those circumstances, and my learned friend Mr Parry made this point very strongly, Esso has an obvious interest in the outcomes of negotiations. Esso's interest is as legitimate as it was obvious.

PN334

Indeed, in other sections of the Commission's decision Commissioner Whelan relies upon Esso's undeniable interest to bolster the inference that Esso did have control. Commissioner Whelan says, for example, Esso would be the only one to benefit from the introduction of a 14/14 roster. If that were the case, why then, we ask, can it not be said that Esso's interest in such a roster was a real and legitimate one? So if Esso did have a control over the contractors, however absolute that control was, in the actual real commercial situation in which the parties found themselves that control would have been entirely illicit.

PN335

We turn then to sub-paragraph (c) of paragraph 19, namely that if you did get a degree of control exercised by Esso which was sufficient to nullify the contractors' ability to bargain in their own best interests and if you had that, with Esso being a true stranger with no legitimate interest, then in those circumstances, according to the Commissioner, that would be contrary to the scheme and assumptions of Part VIB of the Act assuming a free bargaining process as they do.

PN336

Well, even that third proposition, we say, is flawed and we say that because you don't actually find anywhere in Part VIB the proposition that bargaining must be free and autonomous. Rather, Part VIB deals with particular aspects of the bargaining process and it can't be pushed beyond the way in which it addresses those aspects. For example, in section 170MM of the Act it says that if you take industrial action in concert with someone who is not a negotiating party then it is not protected industrial action.

PN337

It is significant what it does not say and nothing in Part VIB says that if you negotiate in concert with another party that in some sense that is not real, not proper, not genuine, not wholesome negotiation, you are entitled to negotiate in concert with another party. Specifically apropos the question of influence exercised by one party over one of the negotiating parties, that is to say influence by a non party over a negotiating party, to the extent that the Act treats that as proscribed behaviour, it does so in section 170NC.

PN338

That section is very carefully crafted to refer only to coercion in its technical sense. If you have conduct on the part of a third party exerting influence over a negotiating party which is short of coercion, so that an action for breach of 170NC would fail, what warrant does the Commission have to construe the public interest in such a way as effectively expands the role of 170NC - in such a way as introduces new norms of conduct under Part VIB which simply are not there. So we say that the whole scheme of the Commissioner's reasoning in this section of her judgment was quite seriously flawed.

PN339

Now, can we turn then to the second major strand of reasoning upon which the contractors were unsuccessful in this application and that was the Commissioner's finding that the facilitation of the contractors to move away from the present limitation of 7 plus 7 rosters would be contrary to the public interest by reason of its impact upon the ability of the employees of the contractors to discharge their family responsibilities or at least to do so in a way which is consistent with balancing their employment responsibilities.

PN340

In this respect it may be important, we submit, to note what the Commissioner actually said about this. She dealt with it between paragraphs 172 and paragraph 212 of her decision. If you go to paragraph 172 you will see that she commences with what she describes as her findings on family responsibilities and in paragraph 176 she says:

PN341

Those who advocate the 14/14 roster...

PN342

And in paragraph 179 she deals with the 14/14 roster by comparison with 7/7 and 28/28. In paragraph 181 she refers to the New Zealand experience of a move from 7/7 to 14/14. In many respects the whole of this section is proceeding as though the comparator, if you like, that is the point to which the parties would move if they were allowed to move from their present 7 by 7 situation, would be 14/14. If you actually look at the concluding paragraphs of this section the Commissioner no longer speaks of 14/14 as though it would be the inevitable outcome but she speaks of a movement away from the status quo. For example, in paragraph 198 she said:

PN343

I am satisfied that a removal of the current restriction on shifts in excess of 7 days would not assist these employees...

PN344

Etcetera. In paragraph 201:

PN345

I am satisfied it would be contrary to public interest to terminate the agreements where the sole ...(reads)... to be absent from their families for significantly longer periods of time.

PN346

So she is allowing the possibility, it seems to us in those paragraphs, that a removal of the current agreement would open up the opportunity for the introduction of longer work cycles without necessarily saying that it would invariably or inevitably be a 14 plus 14 pattern. This seems to have flowed out of what she says in paragraph 197 that there was some type of concession by the contractors that rosters of variable lengths up to 14 days might be possible.

PN347

However that aspect of it is viewed, and really we simply draw attention to that as a sort of a caveat at the outset, however that aspect is viewed, if you look at the Commissioner's approach as a whole in this section of her reasons, what she was really doing was operating like an arbitrator under Part VI of the Act who has been asked to introduce a longer roster cycle over employee and union opposition. She said that the express purpose or the sole purpose of the application before her was to lengthen roster cycles. It was as thought she was being asked to bring about such an outcome.

PN348

Now, the contrast is made more explicit if you look at paragraph 202. The Commissioner makes what, in our submission, is an extraordinary observation, to say: well, the parties could agree to it. My decision isn't stopping the parties agreeing to it. Of course they would have to comply with section 170LU(5) but that almost stands in contrast to what she was being asked to do which was as though it was to introduce it. But no one was asking the Commissioner to introduce anything and nothing she did could bring about the 14 by 14 roster and we submit that the approach which she took was not open to her under section 170MH.

PN349

She ought to have considered and considered only the public interest impact of terminating the existing agreements and that did not raise for consideration the question of what might have happened thereafter. Now, there will always be a question of whether termination of an agreement facilitates bargaining. We accept that. There have been many cases in which someone who would prefer not to be bargaining from the basis of the existing agreement says: well, if you remove the agreement that will make the other people come closer to our position. Whereas the other people will say: well, if you leave the agreement in place, that will make this chap come closer to our position.

PN350

The Act in a sense resolves that by saying that up until the nominal expiry date, you can't touch the agreement except under very limited circumstances, but after the nominal expiry date, prima facie you set the agreement aside if someone wants it set aside, unless there is a public interest operating to the contrary. So insofar as the time after a nominal expiry date is concerned the scheme of the Act must be as it were to attract a public interest in reverting to safety net conditions or to conditions other than those specified in the agreement as the environment within which bargaining should take place and we believe that the Commissioner did recognise this towards the end of her decision when she was looking at the contra indicators in paragraph 265.

PN351

So we would submit that far from the contractors taking any step which would prevent free and effective bargaining, the Commission has trespassed upon the parties freedom to pursue their own interests towards making agreements under this Act. Because she has, with respect to her, trespassed into the area of the content of the industrial regulation that should obtain in the future and in a sense she has says to these contractors as far as the Commission is concerned the 14/14 roster, or for that matter anything which is further on that spectrum than the existing 7/7, anything like that is out of the question as far as the Commission is concerned and without any doubt, if this decision stands unreversed on appeal, then these contractors simply won't be able to exercise their freedom to seek longer roster cycles which they are entitled to under the legislation.

PN352

The Commission will in effect have put that out of bounds. Now, these are all the more weighty considerations, we submit, when it is realised that in the case of a single business agreement the Commission has no discretion to refuse certification in the public interest, and this is something that your Honour the President commented upon before lunch. If the parties had, contrary to all present indications as far as the unions are concerned, if they had decided to come up with the 14/14 roster, if the contractors for example had thrown a great deal of money in a certain direction and eventually they said: well, all right, we'll sign up to 14/14, and it came before Commissioner Whelan to certify, she would have to certify it.

PN353

Now, how can it be, we submit, in any way consistent with the objects of the Act that when all a party wants to do is to negotiate towards an outcome which would have to be certified if agreed to, how can it be against the objects of the Act for a party to want that? We submit that in so holding the Commissioner trespassed into an area which is outside the realm of section 170MH. As we've said in paragraph 38, what she has done is to introduce through the back door a consideration which would never have gained entry through the front. Now, notwithstanding what she said about the 14/14 roster, it is possible that the Commissioner was measuring the status quo not against a new agreement that might be certified but against the period between agreements that might come into existence when only the safety net award would apply.

PN354

Now, there was some discussion about this when my learned friend Mr Parry was on his feet this morning as to what the safety net awards would provide if the agreement was terminated. It is really soluble in a very simple way. Either the safety net awards would have permitted an extended cycle, or they wouldn't. If they would not have permitted an extended cycle, then that is the end of the matter. Terminating the existing agreements isn't going to be contrary to public interest because the awards will play their part.

PN355

On the other hand, if the awards would have permitted an extended cycle, the question that arises, assuming the existence of a sufficient contractual basis for the working of a particular roster, could it be said the employment of persons in compliance with awards of the Commission and with other statutory norms applying such as State laws regarding health and safety, etcetera, is against the public interest? Can it ever be said that to employ someone and comply with an award of the Commission is contrary to the public interest, particularly when, as you must assume, the employer would be complying with other relevant legislation which deals with employment and workplace matters?

PN356

The awards themselves were made against the objects of the Act and against the operation of section 90. At least prima facie they set up an employment regime which is consistent with the public interest. In fact we should say more than prima facie, which we would certainly hope that that would be conclusively assumed to be so, because the Commission was obliged to apply the public interest when making those awards. So it couldn't be said that merely to terminate the existing agreements if that produced the result that people would then slot back on to the awards would be contrary to the public interest.

PN357

Now, there is some suggestion that my learned friend Mr Bromberg in the proceedings below said: well, these awards never assume this kind of employment. What Mr Parry has said this morning and from other things, of course they assumed this kind of employment. They assumed employment in remote areas. They assumed employment where people would have to be taken away and later brought back home. But in any event, that is not the question, that is not the industrial question as to whether they will be at home or away from home or whatever. Whatever hours they work under those awards, the awards either allow it or they prohibit it.

PN358

If they allow it, you simply by the calculations you work out how much is overtime, how much is ordinary time and so forth. The answer to those detailed inquiries really don't bear upon the point we are now making. The point simply is that it couldn't be said to be contrary to the public interest. Now, if the unions do have a point that somehow, notwithstanding that they are awards made by this Commission, notwithstanding that they do have some contemplation in them about the work, that somehow they haven't properly anticipated the kind of application that they would have in a Bass Strait type situation. Well, that is all right. There's a solution to that, again provided for in the Act.

PN359

The unions could come back to the Commission under section 113 and run a case which deals with hours or penalty rates or overtime or anything and section 98A is more than fulsome enough to cope with the kind of concerns they might have. And then the Commission would hear a variation case to the award, it would be done on a safety net basis, it would have to apply the public interest. So none of this is rocket science but the one thing which you can't do, we submit, is to say that all of these sorts of considerations get bundled up into section 170MH of the Act. That is the one place where they did not have a proper operation in our submission.

PN360

Now, turning to what might be called the merit aspects of the family responsibility side of it, the first thing we want to say is this, if the Commission pleases. You can't really say that having people work for 14 days away from home and then be home for 14 days and be away from home for another 14 days and so on continuously either is necessarily or isn't necessarily in the public interest of itself. All would depend on the circumstances and a huge amount would depend on whether the actual people had agreed to it. So that if someone was seeking an award which would require people to work that pattern against their consent, one might understand a persuasive public interest argument being made that people shouldn't be required to do this.

PN361

But that wasn't this case. If on the other hand you have a union and an employer coming to the Commission and saying: we have agreed, these people have agreed, they've weighed up all their own circumstances and they've signed on the dotted line. They want to be away for 14 days and home for 14 days. Then the public interest issues would present very differently, we submit. So that is what we say is by way of a general rider to any attempt to, as the Commissioner made, to say that 14 plus 14 would necessarily be against the public interest.

PN362

Now, if the Full Bench accepts the submissions which we've made and the contractors have made about errors which the Commissioner made, we submit that the Full Bench should not attach any weight to the Commissioner's findings on individual aspects of her broad conclusion regarding family responsibilities. We submit they were not based on a fair, balanced or complete treatment of the evidence before her and we wish to associate ourselves with the contractor's submissions, particularly those contained in appendix A or attachment A of their written outline.

PN363

In paragraph 47 of our outline, we simply wish to give emphasis to some particular aspects of the way the Commissioner below formed those conclusions. She obviously placed considerable store by the so called surveys of Dr Berger and Ms Lester and these were, however, little more than systematic collections of the views, desires and discomforts of a person who had vested interest in a particular outcome expressed in a temporal setting in which the proceedings were already on foot. She gave disproportionate fact to the employees and their families would prefer not to move away from the 7/7 roster. We will say something a little bit more about that presently.

PN364

Mr Parry has already said, and we wish to reiterate that she provided no satisfactory basis for sweeping away the evidence of the world expert on the impact of offshore roster arrangements, Dr Parkes. He was a true academic in both senses of the word. Her interest in this case was purely academic and she was an academic, both with a capital A and a small a. There really isn't any basis for her material having been swept away and my learned friend Mr Parry said this morning paragraph 172 of the Commissioner's decision is really quite breathtaking when she said the main evidence before the Commission in relation to this issue arose from the statements made by employees concerning their own circumstances.

PN365

The Commissioner with respect almost completely failed to come to grips with the fact that employees working a 14/14 roster would have at least as much extra time at home with their families as they would spend working offshore. The whole emphasis of this section of her decision was whether the employees should be permitted to be away from their families for a longer period of time. She gave no attention to the benefits that would accrue from them being with their families for longer periods of time.

PN366

Some of the Commissioner's findings, we are bound to submit with respect to her, were purely intuitive or had the look of a forensic argument about it. For example, she spoke about the role of fathers going beyond the odd footy match and an occasional camping trip. The inference being that something which the were here proposing to do would in some way impair fathers from giving anything more than those cursory amounts of attention to their families. Again it is implicit that it would not be for the public good for a father who was already away at work for 7 days at a time to increase that period up to 14 days, even if balanced by a corresponding increase in the amount of time spent at home.

PN367

She treats a number of the positions which the contractors adopted in a pejorative way. She speaks of the fact that the submissions that the contractors put about adjustment, she puts that pejoratively at paragraph 181: it was somehow incumbent on the families to adjust. And she says people can adjust to imprisonment. These aren't the words of someone who is dispassionately looking at all of this. These are almost the words of an advocate. Mr Bromberg couldn't really do better than to read some of the Commissioner's paragraphs in defence of his own case.

PN368

You will recall in paragraph 179 there is - or if I go back to paragraph 178, there is a treatment of this question of whether stress arises from the mere fact of partings and reunions, that is quite apart from the length of time spent away. Every time there's a parting and every time there's a reunion there is a question whether that involves stress, and this is something which is I understand dealt with in various ways in the literature but my point is not to get into that debate but rather in the italicised portion at the top of page 30 of the decision that is Dr Parkes' evidence referring to that learning. In paragraph 179 the Commissioner says:

PN369

Ms Hepler on the other hand thought that the evidence of reduced stress associated with reduced ...(reads)... better still?

PN370

Now, can I just say that if you look at paragraph number 7646 which is footnote 78, that has got nothing whatsoever to do with that subject matter. Probably that is a misprint for paragraph 7656 but even that, although it does say something about 2828, that provides no foundation for paragraph 179. It seems that what the Commissioner has done, although it is not attributed, is to pick up paragraph 198 from Ms Hepler's witness statement, which is exhibit AWU23, but she has done it in a way which is nothing more than in our respectful submission a cheap trivialisation of a legitimate concern which Dr Parkes was expressing.

PN371

What position is the Commissioner in, we ask rhetorically, and after all the Commissioner is a lay person apropos the area of expertise we are here talking about, to trivialise it in that way, to say that there is an absurdity in suggesting that longer periods of absence with fewer partings and reunions might in some way be beneficial in that way. So we make those general submissions about the Commissioner's decision in that area but we believe that the detailed treatment of the family responsibilities aspect in attachment A of the contractor's written outline is a comprehensive treatment of the subject and we wish to align ourselves with it.

PN372

THE PRESIDENT: Dr Jessup, paragraph 179, the second sentence, do you suggest that that was the Commissioner's comment or that she was setting out what Dr Hepler had implied?

PN373

DR JESSUP: Well, because it is expressed in the past, we read that as being a recitation of what Ms Hepler had said, flowing on from the first sentence.

PN374

THE PRESIDENT: Yes.

PN375

DR JESSUP: Although Ms Hepler was giving evidence at paragraph 7646, she didn't - - -

PN376

THE PRESIDENT: Yes, I understood that. I just missed the paragraph reference to her statement.

PN377

DR JESSUP: Yes, paragraph 198 of exhibit AWU23. My learned friend Mr Bromberg has assisted me with it. Now, Ms Hepler said the following in paragraph 198 - I will need to read paragraph 197 as well:

PN378

Interestingly however, Shrimpton and Storey in the context of looking at the pros and cons of the trend towards shorter rotations in some areas ...(reads)... fatigue.

PN379

And then in the next paragraph:

PN380

I would also qualify this claim. The logic of the claim made by the applicants is that the fewer the partings and reunions, the less stressful it is. ...(reads)... than a 14/14?

PN381

I think it should then be:

PN382

(if 14/14 is less stressful than 7/7). As Shrimpton and Storey observe, we do not really know what the right balance is and it may be that the handful ...(reads)... delivered.

PN383

So that is where it came from, your Honour, not from the - - -

PN384

THE PRESIDENT: Yes. Well, isn't what is in the second sentence a reasonable paraphrase of that, or at least part of it?

PN385

DR JESSUP: Well, it is, it is but yes, unquestionably, but what we say, your Honour, is that Ms Hepler said that that is a matter of logic. She was simply putting it argumentatively rather than based on any empirical research or anything of that kind. We said whether it is Ms Hepler or whether it is Commissioner Whelan, we say that it is really trivialising the point. No one was suggesting that we go to 28/28 and if the issue itself is problematic, how on earth can anyone say whether the continuum of increasing benefits from few partings and reunions is a linear one? It might be that 14/14 is the ideal.

PN386

No one knows. It can't simply be dismissed in this intuitive way, we submit, and we say that as much with respect to Ms Hyler as we do to the Commissioner below. So that is as much as we wish to say about the family responsibilities aspect of it. With respect to the content of the public interest, your Honour this morning said to my learned friend Mr Parry at one point, your Honour the President said to Mr Parry: well, it is not that the public interest means something different in different parts of the Act. It is just depending on the context, it may consist of different facts.

PN387

Now, there's all sorts of things that may be part of the public interest but of course it has got to be read within the relevant statutory context. We would submit that the public interest has one access of variation which relates to the concept of an interest. Does it refer to a material interest of someone? When appeals are brought, perhaps not so much these days but certainly traditionally when appeals were brought, when the Commission used to make awards covering single industries and single businesses even, or even single departments in a business, now often respondents to the appeal would say: well, this isn't in the public interest, the award only covers 14 people, or it only covers 50 people, or something.

PN388

So in one sense you can look at the material interest of people but if the material interests are big enough, then of course it becomes the interests of a section of the community considered more broadly and therefore the public interest. So what we've said here is if you actually have a large number of people whose employment is threatened or maybe whose wage increases are under threat, then there is a public interest involved, even though we are only talking about dollars and cents. On the other hand there might be an ethical or cultural interest which wouldn't matter how many people you are talking about, and I've given the example, a fairly Dickensian one perhaps but the employment of a person, an under-age person in a coal mine.

PN389

If there was an award which related to the allowability or the permissibility or for that matter the regulation of that, it wouldn't be an answer to say: it only concerns one child, because the subject matter itself is a matter of community concern. So it is for these sorts of reasons that we accept that you can never exhaustively define the public interest. The other axis of variation relates to the purpose of the particular statutory provision.

PN390

So the reason we would ask for leave to appeal in this case are the same reasons that Mr Parry asked for leave to appeal and the reason that the public interest in having appeals in the Commission and having the Full Bench with a jurisdiction is to make sure that the Commission has a consistency of jurisdiction, a consistency of the delivery of industrial justice and that errors are identified and corrected if necessary. But those sorts of things would be completely different to section 170MH. That does not entitle the Commissioner to throw up all the cards and say: well, it can't be exhaustively defined, it is a broad concept, a discretionary concept.

PN391

I think my learned friend Mr Bromberg will say an evaluative concept, a judgment concept and so therefore I'm really given free rein. There is a necessity to come to grips with what 170MH meant when it referred to the public interest. Now, in appendix 5, we have set out not the terms of the legislation but we have set out an explanation of what all the certified agreement provisions in the legislation have said about the public interest since before the 1998 Act. We have started off with the 1904 immediately before it was repealed.

PN392

GIUDICE J: Did you know there are only 25 pages in the 1904 Act, Dr Jessup?

PN393

DR JESSUP: That is not immediately before it was repealed, your Honour, unfortunately.

PN394

GIUDICE J: No, it was when it was first passed, it is 100 years ago today.

PN395

DR JESSUP: It is a bit chilling to think that our outline is longer than the original legislation.

PN396

GIUDICE J: It is even more frightening for us.

PN397

DR JESSUP: Yes, but in the context of certified agreements whether you are looking at the old section 28, or the 1998 legislation or the changes introduced in '92, or the Reform Act in '93, the public interest has always been there in some function in relation to certifying agreements or terminating certified agreements, or rescinding them as one used to do when they were treated as awards.

PN398

The public interest has always been juxtaposed to the interest of the parties. The interest of the parties and interest derivative of them such as their families' interest and all that sort of thing, they are assumed to be carried through in to the agreement itself. So if public interest in 170MH means nothing else, it means that it excludes the interests of the parties, or those derivative of them and that is exactly the view which Munro J talked in the Joy Manufacturing case and it is a view which we would respectfully urge upon the Commission are presently constituted.

PN399

Commissioner Whelan, with respect to her, never really came to grips with that. Instead, what she said was: I will follow the approach I took in the Geelong Wool Combing case - that was another decision of hers. I think paragraph 33 of her decision she sets out what she did in Geelong Wool. Now, there is, with respect, a temptation to which the Commissioner fell prey in that case, to categorise and to enumerate lists of factors that are relevant to some discretion, or some judgment that must be made under the Act.

PN400

The moment you do that you immediately forget about the legislation on all future occasions to go back to your list and that is what has happened here. Let us have a look at that list. We would take you to item 4 on the list. There is no exhausted definition of what constitutes the public interest. Now, the sub-text for that is: anything goes. Item 5, in particular case the whole of the circumstances need to be considered in competing public interest balance. Well, there it is, "anything goes" is a nice way of saying what the Commissioner has said, or perhaps a critical way of saying what the Commissioner has said in more acceptable language in item 5.

PN401

GIUDICE J: Isn't that what the High Court said about - - -

PN402

DR JESSUP: I'm coming to the High Court, your Honour. Your Honour, is thinking of ex parte ETU, we will come to that in a second. Then Item 6: the interests of the relevant employees and the employer are relevant to determining the public interest. So well they must be because everything is there, if it is broad, if it is balancing why aren't they there? Now, the moment you concede that, the moment you admit that the interests of the competing parties are part of the public interest then, bang, they are on to it like a crab because they are the ones with the acute interest in the hearing.

PN403

You are immediately in an adversarially contest in the Commission and, of course, not only will they be relevant, but they will immediately take centre stage and that is exactly what happened here. It happened here in this way. The Commissioner admitted in to evidence and indeed was influenced by it, to the extent she said they were the main factor of the evidence. The surveys of Dr Berger and Ms Lister and what were they surveys of? They were surveys of what the employees wanted and their families and why they wanted and how they felt out them from their own interests. So immediately you have the interest of the immediate parties taking centre stage.

PN404

GIUDICE J: Dr Jessup, why couldn't the views of the employees shed light on the public interest?

PN405

DR JESSUP: Why couldn't - no, I'm not say that they are not the public interest, I'm saying that their interests are not the public interests. They are views about the public interest.

PN406

GIUDICE J: That might be so.

PN407

DR JESSUP: Yes, but in the way these surveys were conducted, your Honour, it was their interests which took centre stage. The very concept of how it would be difficult to manage, you know, the things at home and the things at work and everything. They were all the interests of the employees. Now, can I take your Honour to the - I'm going to come to the High Court in a moment - but at paragraph 52 we have set out at the top: the guidance with Munro J gave in Joy Manufacturing and the short scrip which Commissioner Whelan delivered to that approach in Geelong Wool Combing and in the present case, Commissioner Whelan followed her own lead in Geelong Wool Combing and again, declined to take the guidance of Munro J.

PN408

Now, it is true that in Geelong Wool Combing, Commissioner Whelan had the advantage of being able to rely upon what the High Court said in re QEC which is [1987] HCA 27; (1987) 72 ALR 1.

PN409

GIUDICE J: I think it is set out - at least part of it in the submission.

PN410

DR JESSUP: Yes, I did, in paragraph 53 and at page 5 and that is the part of it from which this "anything goes" type proposition derives, but the High Court in QEC was not concerned - first of ally, they weren't concerned with certified agreements or with 170MH or any earlier equivalent, they were concerned with 41(1)(d). The other thing is, they weren't concerned to identify content of the public interest. They had an argument before them by counsel for the ETU that the Commissioner, or the Commission as it was in that case, hadn't taken in to account, or been guided by a significant public interest criterion which was the need to settle industrial disputes where they arose.

PN411

All the High Court was saying there was: well, of course, that is a public interest factor, but there are also things which cut the other way. So you have a balancing exercise and a broad judgment but it does not tell you what is on the scales. Undoubtedly, in a 41(1)(d) case the need to settle industrial disputes is squarely on one side of the scales. There may be things on the other side too but it does not give you content to what is on the scales universally throughout the Act. It simply is not a sufficient explanation of the public interest in all other statutory context to say: ascertainment in any particular case where the public interest lies will often depend on the balancing of interests, including competing public interest and the very much a question of fact and degree.

PN412

In this case the Commission was called -

PN413

they continue -

PN414

was called upon to weigh in the balance two competing public interests ...(reads)... despite the limitations on its jurisdiction, etcetera.

PN415

So they had the considerations there and their point wasn't to say that these will always be public interest considerations, or they won't be, but rather given that they were, on any view, relevant had the methodology of the Commission, had its adjudicative exercises been properly carried - and the High Court point was: well, they had to balance, and they did balance. That is all they are saying there. They are not saying well, we are going to tell you what the public interest is and they are certainly not saying that the public interest is, in effect, the same thing as a broad, open-ended discretion to be exercised consistently with the objets of the Act.

PN416

Now, the distinction is clear in section 170MH, the Commission must decide if termination would be contrary to the public interest and if it does not decide that then it has to terminate the agreement. It is quite different from section 111(1)(g) which says that the Commission may, if it considers that further proceedings are not necessary in the public interest, adjourn a matter, because it is got a discretion wrapped up in its application for public interest and the content, as I say, will be quite different.

PN417

So we would say that the Commissioner's approach was, in effect, to arrogate to herself a discretionary function of deciding whether the agreement should be set aside or not. Her ill-defined concept of public interest, her broad flim-flamy concept of public interest, in effect, made it as though section 170MH was expressed simply as though the Commission may terminate an agreement on application made by of one of the parties, as though it was a broad decision to be made in the general discretion of the Commission.

PN418

So that takes me down to the end of paragraph 55, if the Commission pleases and the only other short matter upon which we wish to address is subsection (2). We may be a little bit different in our emphasis from Mr Parry in this respect, but what we submit is this. The purpose of subsection (2) is to ensure that all those who are bound by the agreement will get the opportunity to - will have their views known by the Commission. Now, it might be that would be what natural justice would require in any event, but it might not. It might be that someone would say: well, natural justice only requires you to give the other party to the agreement the opportunity to be heard. What about the employees who are covered by the agreement, but not parties to it?

PN419

Normally, in normal Commission proceedings traditionally with awards or with old type certified agreements which was treated as awards, if someone applied to have it set aside you would notify the other parties. That is what you would do, and that would be regarded as sufficient compliance with the implicit rules of natural justice. But this says that you have got to go further than that, you have got to notify and find out the views of all the persons who are bound by the agreement.

PN420

And because of the particular way in which section 170MB operates - to give you another example - you might find one agreement has different employers bound it because different employers may have succeeded to different parts of the business and you might have an agreement following part of the business down to one employer, and part of the business off to the other employer and yet only the original employer may be named in the agreement.

PN421

So with all these things it is hard to predict all the possibilities that might arise, of course, but the Act simply says: well, before you set aside an agreement you have got to find out the views of those who are bound by it because they might not want it set aside. Now, when you do find out those views, what views do you look at? Well, you look at the public interest views.

PN422

It does not, we submit, change the content of the single criterion against which the decision under 170MH must be made. All it does is to enable you to find out the views of persons that wouldn't otherwise, or not necessarily otherwise be before the Commission. It is a useful process in two respect. First of all, the views of persons bound by the agreement might not necessarily coincide with the views of the direct parties. There might be other public interest considerations which are thrown up and which might not have otherwise come to the Commission's attention.

PN423

Secondly, because of the way in which 170MH(3) is expressed - the negative terms in which subsection (3) is expressed - the broader the scope you get for participation the more confident the Commission can be that termination of the agreement would not be contrary to the public interest. If the Commission simply had one person applying with no contradictor and a person simply said: well, I'm applying to terminate this agreement - it might be an LK agreement, for example, in which the employer is the only kind of named party, at least, specifically.

PN424

The employer might come along and ask for it to be set aside and the employer might say: well, I can't think of anything that is against the public interest and the Commission might say: well, I feel a certain reserve about that because I'm not sure that yours would necessarily be the only interest I should have a look at in this way. So by requiring the Commission to secure the views of a wider range of interests the Commission can be the more confident that any possible public interest contra-indicators would be drawn to its attention and that is, in our submission, the place of subsection (2).

PN425

It does not mean that the views of the persons bound by the agreement, whatever they may be, are public interest views. The criterion is subsection (3), the public interest. To the extent that their views are public interest views then, of course, they can be taken in to account, but the mere fact that they are the views of persons bound does not make them relevant to the exercise under the section. This ties up with the other submissions we have made to the effect that Commissioner Whelan in the present case has given too much of a role to the actual views of the parties to this agreement which are not legitimately public interest views. Those are our submissions. In terms of the outcome, we would support what Mr Parry said.

PN426

GIUDICE J: Were there any public interest issues in the case?

PN427

DR JESSUP: Yes, there were some but they were not found to be established, they are referred to in the Commissioner's decision. There was an argument that it would have an impact on gas supplies. We would accept that that has the potential to be a public interest issue.

PN428

GIUDICE J: Any others?

PN429

DR JESSUP: Health and safety in the workplace, your Honour, which was also in the same category, found not made out. I must say in relation to the latter one, I think again that was something that was put in the context not of the termination of the agreement but of the introduction of some longer roster under some contemplated substituted arrangements.

PN430

GIUDICE J: Yes, but you would accept that an issue such as health and safety in the workplace is a general issue would be capable of being relevant?

PN431

DR JESSUP: Yes, qualitatively, yes. There was another one which was argued at paragraph 213 and following. The effect on the Latrobe Valley and the impact on the local community, that is potentially so. Your Honour, we don't want to be understood as saying that the integrity of the - I don't quite know one can put it in a neutral way - but the integrity of the family structure, or the ability of Australia to comply with the convention concerning family responsibilities do not, in subject matter terms, have the potential to raise public interest issues, in the right kind of statutory setting, but of course that setting wasn't there in this case.

PN432

GIUDICE J: Thank you. Mr Wood?

PN433

MR WOOD: I thank the Commission. Over the luncheon, Mr Billing who is instructing me from AMMA has dug up a decision which he believes to be the decision that the president referred to as the Norwegian Roster case. I hand copies of those up to the Commission. I don't have copies for any of the parties at the bench and we only received these copies at 2.30. It is print number G2393. I think when one looks at it on page 3, halfway through page 3, under the heading: For Decision - Oil and Gas Industry re hours of work, the third paragraph. It says:

PN434

The unions explained that the roster they proposed was based on the approach adopted in Norway following the government there legislating for an average 36 hour week on a national basis.

PN435

And then Esso's submissions that the relevance of the Norwegian roster was negligible are contained thereafter. I'm really not in a position to address you with any authority on this decision, only having been given a copy of it an hour ago but I simply hand it up to the Commission, as a result of the question asked by the president.

PN436

GIUDICE J: Yes, well, I have got no idea whether it is relevant or not. Thanks, Mr Wood. If anybody else wants to make submissions about it in due course, of course, they are free to do so.

PN437

MR WOOD: Yes. In relation to our submissions we have reduced them to writing. I will hand a copy up to the bench. I have given a copy to my learned friend, Mr Bromberg and to each of the other parties represented here at the bar table. Paragraphs 1 to 6 really go to the question of leave to intervene, so I won't address in relation to those. Paragraph 7 indicates the points we wish to make in fairly short compass, that is, that the resource sector is large, that the 14-14 or longer rostering arrangements are standard and that the Commission should have regard to the fact that owners and operators of such large resource projects have a right to play a role, even a significant or a major role in the setting of terms and conditions of employment of their direct and indirect workforce.

PN438

Dealing with the first point, the point we make is that the minerals and energy section, the resources sector is worth about 50 to $60 billion per year to the Australian economy and it has been around that value for the past 4 years. The second point we make is based largely on the evidence that was before Commissioner Whelan and that is that rostering arrangements within the resources sector, that is both the onshore and offshore oil and gas production pat of the sector and the mining part of the sector, that those rostering arrangements are typically 14-14 or greater and that they are standard throughout the resources sector.

PN439

This perhaps comes as no surprise to the Commission because that evidence is on all fours with the evidence given in the working hours test case but Mr Mellor who is referred to at - sorry, Mr Mason, I beg your pardon, who is referred to at paragraph 26 of the reasonable hours test case. His evidence was used, I'm instructed, it was largely uncontested and his evidence is the basis, or forms the basis for the findings which my learned friend, Mr Parry, has referred the Commission to, paragraph 272 of the reasonable hours test case, that is:

PN440

Further evidence from AMMA demonstrated the impact which the subclause -

PN441

that is the subclause proposed by the ACTU in the reasonable hours test case -

PN442

would have on agreed even time rosters which operate in many parts of the hydrocarbons and mining industries particularly in remote areas where fly-in and fly-out systems operate.

PN443

It seems to be largely uncontested that these 14-14, or longer roster arrangements are standard for the sector and the submission we make is that the viability of the sector depends, in large part, upon the maintenance of those rosters. Given the amount of capital employed, given the location of the projects that is in remote areas, there's (a) - - -

PN444

MR BROMBERG: If the Commission pleases, this is going to a factual material that is not before the Commission and if my friend is trying to introduce it from the bar table we would object.

PN445

GIUDICE J: Yes. Is this material not dealt with somewhere in the proceedings before the Commission.

PN446

MR WOOD: It largely is, your Honour.

PN447

GIUDICE J: Is there any reason why we should permit you to go beyond what is already in the material?

PN448

MR WOOD: No, your Honour, other than what I was just saying then is a submission I'm asking you to accept from the material that is before the Commission and some uncontroversial material, that is, our point is 4 Part 1, the resource sector is big. Two, the 14-14 rostering arrangement is standard. Those two things are in the material, or uncontroverted. The submission I am making to you now is the submission I am asking you to accept, that is, the viability of the sector depends upon the continued operation of those rosters. That is not dependent upon evidence, it is a submission that you are free to accept or reject. We would rather expect that you would find it self evident, but that is the submission and that leads to the fourth point we make under this.

PN449

GIUDICE J: Yes, well, do you have anything else to say about it, Mr Bromberg?

PN450

MR BROMBERG: Well, I don't see why it is self evident, if my learned friend says he does not seek to - - -

PN451

GIUDICE J: It is a submission, he says.

PN452

MR BROMBERG: It is a submission and it is a submission that we would say has to fall because there is no evidence whatsoever to support it.

PN453

MR WOOD: Well, that is the submission we make.

PN454

GIUDICE J: Yes, I understand that.

PN455

MR WOOD: The point that we make is my learned friend, Mr Bromberg, said what is the purpose of the intervention and submissions? The purpose is that if you find that the appeal grounds raised by either of the two appellants are made out and you come to make a decision that you take in to account both the evidentiary material that we have referred the Commission to and also the submission that we make, that is, that the rostering arrangements should be protected and respected.

PN456

That leads to the last point that we make and this is at paragraph 10.1 to 10.4 and that is that we take a slightly more bullish approach than either of the appellants. We say there's from AMMAs perspective nothing wrong with a principal, an owner or an operator of a project which involves the use of sometimes billions of dollars of capital dictating to contractors what the terms and conditions of employment that they offer to their employees should be.

PN457

We ask the Commission to at 10.3 compare the approach that the Commission below has taken in this case to the approach that is taken in relation to governmental action of a similar nature. In the three cases we have referred the Commission to there has been no criticism of governmental action which in effect dictates the parameters of any settlement or bargaining that takes place or could take place. In each of those section 170MX arbitrations that we have referred to and we will hand copies up to the Commission now, no criticism was made by the Full Bench in any matter, any of those three matters, and this is notwithstanding that section 170MX(5)(ec) requires that the Full Bench have regard to the extent to which the conduct of the negotiating parties during the bargaining period was reasonable.

PN458

Moreover - and we haven't got these decisions - we have looked at the section 170MW decisions which terminated or suspended the bargaining periods leading to the MX arbitrations that we the Full Bench to or the three MX arbitrations. In each of those section 170MW applications no criticism was made of the government's approach in dictating the terms of which any settlement could take place. That again is notwithstanding that section 170MW(2) contains a ground for termination which includes (a) that there was not a genuine attempt to reach agreement before organising or taking industrial action, or (b) not a genuine attempt to reach an agreement.

PN459

Further than that, in one of the cases we have referred the Commission to, that is the CPSU in Victoria print S4568, the decision of SDP McBean in print R1878, expressly stated that he did not accept claims by the CPSU that the State of Victoria have adopted an unreasonable position in its policy and similarly in relation to the section 170MW decision underlying the HSU v Alexandra District Hospital case. Senior Deputy President McBean noted in his decision that the Government health funding policy was unlikely to change but made no comment about the bargaining therefore being somewhat impacted. We say the same approach should be taken in relation to contractors and operators and owners of resource projects. Those are our submissions.

PN460

JUSTICE GIUDICE: Thanks, Mr Wood. Mr Bromberg?

PN461

MR BROMBERG: If the Commission pleases, we made a valiant attempt perhaps to anticipate what might be said by our learned friends in support of their positions and we have prepared an outline which we think will be of assistance. Can I hand that up together with folders of authorities. The outline has been provided from my learned friends. The outline begins with an introduction and I don't need to dwell on the introduction. It describes the circumstances in which the decision below was made, that is some of the background matters.

PN462

Can I draw attention to just a couple of matters that might be of some consequence. Paragraph 3 you will see that we make the point that the contractors employed about 300 employees in the performance of the EPC work at Esso. Only about 150 of these employees perform off-shore work. The evidence was that it did vary from time to time but the employees concerned were employees, some of whom did onshore work, some of whom did offshore work and some of whom went between onshore work and offshore work depending on the need for offshore work.

PN463

The evidence was also that a number of casuals from time to time were used to provide the offshore work. That matter has some relevance and I will perhaps come back to it later to the nature of the arrangements that the contractors said they would put in place for rostering should the certified agreements be terminated. The only issue in the negotiations that was really left over, the only outstanding issue as we say at paragraph 6 of the outline, was the issue of rosters and the contractors' demand that replacement certified agreements contain a provision allowing work on a 14 by 14 day roster or some variant allowing up to 14 by 14 days to be worked.

PN464

We have in the note at the bottom of page 3 drawn attention to one matter and it is probably a minor matter but it does perhaps pertain somewhat to the question of whether it is in the public interest to grant leave to appeal and in particular in relation to ABB Worley as an appellant. As we understand the position, ABB Worley was not a tenderer for the current contract and does not hold any contract as we speak. So the extent to which they have a live interest, we say, is questionable. It probably does not matter in terms so much of the way in which the appeal is being conducted but we make the point that that is in fact the factual situation.

PN465

At paragraph 9 of the outline, having at paragraph 8 referred the Commission to the comprehensive submissions in writing that were filed by the AWU, and I should say just for clarification that in the proceeding below I appeared for the AWU alone whereas I appear here for the CEPU as well. The CEPU was separately represented and this submission refers to the AWU submissions but insofar as it is not already apparent - insofar as necessary the CEPU adopts those submissions on the appeal.

PN466

Now, in the submissions below the AWU argued that the termination of certified agreements would be contrary to the public interest for a range of considerations. At the top of page 5 and through to page 6 each of those is summarised and the Commission there has, in our respectful submission, a brief but precise summary of each of the grounds upon which the AWU relied. (c) in the middle of page 5 is one of the grounds that is squarely raised by the appeal. By that ground the AWU argued that it would be contrary to public interest to terminate because it would facilitate conduct in which the contractors are not genuinely trying to reach agreement and are not acting according to equity and good conscience, relying on section 3E.

PN467

Further, that it would involve the Commission's participation in the flawed process antithetical to the public interest because the Commission's intervention which facilitate the furtherance of demand that firstly should not have been made without consultation of proper assessment of the health and safety implications and secondly, should not have been made without consultation and proper assessment of the work/family interface and the legitimate concerns of the employees and their families and we point to section 93A and paragraphs (l) and (k) of section 3.

PN468

Quite amazingly section 93A has not yet had a mention. Although we have been here nearly a day it has not yet had a mention and, of course, it was not only a provision that was front and centre so far as the grounds put up by the AWU but it is also the central consideration in the decision reached and I will come back to that later. Paragraph (ec) at the bottom of our page 5 goes on to deal with the family responsibilities convention more directly where it said:

PN469

Public interest would be infringed because the Commission's duty to perform its functions by taking into account and assisting ...(reads)... work/family balance and in particular -

PN470

and this is taken from section 93 and the convention and the various objects -

PN471

(a) assist workers with family responsibilities to reconcile their employment and family ...(reads)... and (d) prevent discrimination against workers with family responsibilities.

PN472

Now, in the decision below, as has been noted already, the Commissioner relied upon only two of the grounds proffered by the AWU to found her decision. She did that in relation to each ground separately. In other words, she determined that in relation to the ground based on the interference of Esso and the bargaining process that was of itself a reason not to terminate and secondly, in relation to family responsibilities considerations and the case that that threw up, that was of itself a public interest ground upon which termination should be rejected.

PN473

Now, the principles to be applied on appeal is not something I need to take the Commission to for very long. We have at paragraph 15 identified what the High Court said in Coal v Allied about discretion and clearly, and I don't think anybody is suggesting to the contrary, the decision below is a discretionary decision and the decision-maker under section 170MH(3) is given considerable latitude in respect of that decision. Not only is the decision-maker - well, the decision-maker is not even confined to the subject matter and objects of the Act but perhaps to the wider notion of public interest.

PN474

We refer to the principles of House v King and in particular paragraph 18. We note that being a discretionary and very much an evaluative decision, an Appeal Bench would be slow to overturn a primary decision of that sort unless it was of the view that it was plainly wrong and in particular an Appeal Bench would be slow to overturn a primary Judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight and there we refer to Gronno v Gronno and that is a decision that will be well-known, a principle which we say is of some relevance when one gets to the factual attacks that have been made by the appellants in large part whilst the test is: did Commissioner Whelan mistake the facts in large part, if not in its entirety, the factual attack has really been based on an assessment of weight.

PN475

For instance, too much weight was given to the negative considerations of moving to a 14 by 14 roster and not enough weight was given to some of the positive considerations. We do ask the Commission to be conscious of what Stevens J said in Gronno v Gronno when we deal more directly with the facts. Now, we say at paragraph 19, as I said just now, that we didn't have the benefit of anything other than those notices of appeal when we drew these submissions but in large part I think the submissions do deal with the points actually raised and pursued from a fairly wide-ranging notice or notices of appeal.

PN476

We deal firstly with the question of the interests of the parties and we say in relation to that that the question whether or not the Commission is entitled to consider the interests of the parties to a certified agreement when examining whether to terminate was a matter in the proceedings below but it was only a matter going to a limited ground. It was relied upon in relation to the ground proffered by the AU ..... the interests of the industrial parties. You will see that in the AWUs final submissions. This was the part of the case that argued that termination should not occur because it would have a prejudicial impact upon the pay, accrued entitlements, bargaining positions of the employees and also create stress, confusion and disharmony for them.

PN477

That was not a ground that is the interests of the parties. That was not a ground the Commission ultimately relied upon to found the decision made. The interests of the industrial parties was not a basis upon which the two grounds which she did rely upon, that is the intervention of Esso in the negotiations and the family responsibilities considerations, they were not grounds upon which the interests of the parties, in our respectful submission, were relied upon.

PN478

What her Honour was doing in relation to the family responsibilities question was looking at the possibility of a possible impact of a cohort of employees of the introduction of 14 by 14 rosters but doing that through the prism of section 93A and not, in our respectful submission, directly by reference to the individual interests of those individual employees and I will say some more about that later when I come to family responsibilities.

PN479

We say at paragraph 22 that the issue that has been raised and been dealt with by both Mr Parry and my learned friend, Dr Jessup, about the construction of section 170MH(3) and what account, if any, is to be taken to the views of the employer and the employees, is really a matter that will only come to play should the Commission find appealable error on both aspects of Commissioner Whelan's decision and move to determine for itself whether the application should be allowed or not.

PN480

Now, for that purpose can we touch on briefly what we have to say about that debate. We point to our prior submissions at paragraphs 13 to 24, in particular can we draw attention to these matters. We say that section 170MH(2) and (3) mandate that the views of persons bound by the agreement be obtained and considered. That is without doubt. That is a prerequisite for the Commission's consideration of whether or not to terminate the agreement. Yet section 170MH(3) contemplates only a single criterion for termination, namely contrariety with the public interest.

PN481

Now, reconciling the mandatory requirement to obtain the views of persons bound with the single criterion of termination of public interest can only lead, in our respectful submission, to the conclusion that Parliament did intend that the views of the persons bound by the agreement constitute an element of the public interest. That is not surprising in a scheme which gives primary weight to the will of the individual parties as the scheme for certification of - or the making of certification of certified agreements does.

PN482

The exercise, we say, required of the Commission by section 170MH(2) to obtain the views of the parties is more than simply a head count. It can hardly be suggested that Parliament required the Commission to perform no more than just a perfunctory task. Parliament has here set the Commission a specific task, the result of which is requires be given weight. Now, Dr Jessup today and others before him, both my learned friend Mr Parry below and I think the submissions that Esso made below, are pointed to the decision of Munro J in Joy Mining.

PN483

The difficulty which attends Munro Js approach in Joy Mining is the failure of his Honour in that decision to properly reconcile the mandatory requirement to obtain the views of persons bound with the single criterion of termination being the public interest. I refer to paragraph 33 of his Honour's decision where his Honour makes an attempt at such a reconciliation but, with respect, the reasoning is quite questionable.

PN484

His Honour suggests that the purpose for obtaining the views of the persons bound is for the purpose of advising the Commission as to whether it should consider the public interest with close scrutiny or not. His Honour states that if the persons bound support the termination of the agreement there is no need for a close scrutiny of public interest consideration. Now, we say, with respect, that surely Parliament intended that the public interest be properly scrutinised by the Commission irrespective of the views of the persons bound.

PN485

The obligation to scrutinise a public interest is placed squarely on the Commission. That obligation can hardly be delegated to the parties bound by reference to their views which is really what Munro J was saying. He was really saying: well, there's not many people turn up to say they don't want this certified agreement.

PN486

JUSTICE GIUDICE: I think you will find it is a theme that is reflected in some other decisions of Munro J in connection with the certification of agreements where he makes the point that where you have agreement about the course of action it can be difficult for the Commission to inquire, as it were, into the precise workings and potential problems with what has been presented to the Commission because everybody who is there making submissions is assuring him that there's no problem. Now, it may be that that was really all his Honour was saying. If everybody is suggesting there's no problem with the public interest then how far does one go?

PN487

MR BROMBERG: Well, our response to that is that the obligation upon the Commission is to scrutinise the public interest for itself rather than delegate that task to a head count as to how many people turn up against termination or not.

PN488

JUSTICE GIUDICE: In a consent application what does the Commission do, if that is what it is?

PN489

MR BROMBERG: Well, your Honour, it depends on the Commission's obligation. In a consent application and in the certification of an agreement itself, the Commission need not take into account the public interest but here it does need to. Here it must give consideration to whether or not termination is contrary to the public interest. Where it has been given that obligation it needs to discharge it an it needs to discharge it not simply by reference to whether opposition is small or great.

PN490

Opposition might well be small, your Honour, but it might be cogent. Opposition might be great but it might be irrelevant. That is why we say the process is not simply a head count. What the Commission needs to do is take account of the views put before it, examine them against the public interest considerations that it is obliged to look at and take up those views which have merit and weigh them in the balance.

PN491

We think, with respect to Munro J, the approach is overly simplistic and if one discounts Munro J's approach and Munro J uses the approach to give some rationality for the Commission being given the task of seeking the views of the parties, if one discounts that approach as being wrong, as we say it is, then one comes back to our primary proposition and that is the Commission has the task of ascertaining the views of the employer and the employee.

PN492

There is only a single criterion that the Commission applies in section 170MH(3). Why has Parliament sought those views if those views - why has Parliament sought the Commission obtain those views if those views are not to be given some weight and some work to do in terms of the public interest criterion that the Commission is asked to apply. This is not a notice provision which is the other attempt made to reconcile the obligation to obtain the views with the single criterion of public interest.

PN493

My learned friend Dr Jessup did that this afternoon. He said, well, you know, you need to give notice to people. Well, it is not a notice provision. It is not a requirement to notify all those who might be affected that there are proceedings in the Commission in which the termination of the certified agreements which apply to ones employment are being considered. This is a requirement to go and get the views. It is not a notification requirement. Our question that we pose is, well, for what purpose? For what purpose has Parliament sought that the views be obtained?

PN494

The other way my friend - I am reminded to of Arnell's case, about the right to be heard of those who were subject to an award being reviewed by the Commission and Arnell's case, the Commission will know, stands for the proposition that such person have a right to be heard so this is not giving those bound by the agreements a right to be heard, that is unnecessary. The general law will do that in any event. It is not a notification provision because it does not deal with notice, it deals with obtaining views.

PN495

It is not, in our respectful submission, a method of securing some wide range of views in order to better inform the Commission, as Dr Jessup suggested earlier. If that was the case, why is it limited to persons bound by the agreement. If the public interest is the test, why - well, if the public interest is the test and the interests of the employees and employer concerned is no part of it, then why should we get their views on the public interest?

PN496

It just does not make sense, in our respectful submission. If this is a mechanism for bringing before the Commission relevant views about public interest, then why does not it include members of Parliament or why is it not open to anybody? Why isn't it open to the public? It is only the welfare of the community, to the exclusion of the interests of those bound by the agreement that are relevant.

PN497

What this all leads to, in our respectful submission, is a rational search or a search, I should say, for a rational reason as to why the Commission has been given the fairly onerous obligation of obtaining the views. Going out and getting the views of the persons bound by the agreement if those views are to be disregarded in terms of the impact that the termination has upon those persons bound.

PN498

Now, can we then turn to the bargaining conduct of the negotiating parties and Esso, that is the contractors and Esso. Here I want to deal with two challenges which I understand are to be made to the decision of Commissioner Whelan. The first is the general proposition that the bargaining conduct of the negotiating parties is not a consideration relevant to the assessment of public interest. The second is the particular bargaining conduct which the evidence pointed to, was not contrary to the scheme of the Act and thus not capable of being a relevant consideration in the assessment of public interest.

PN499

Now, the proposition we say that the bargaining of the parties is irrelevant to the public interest, is just manifestly incorrect. The approach of the applicants seems to be the public interest is not to be ascertained by reference to the objects, policies, schemes which the Act promotes but only by reference to an abstract notion of the interests and the welfare of the community. What that view fails to appreciate is that the interests and welfare of the community are enshrined in the Act and in the observance and fulfilment of the Acts objectives and its directives.

PN500

That proposition is well made out by a simple glance at section 90, subsection (1), which provides that in the performance of its function the Commission shall take into account the public interest and in that respect the objects of the Act and the objects of the particular part being dealt with.

PN501

JUSTICE GIUDICE: I think it would be difficult to say Dr Jessup disagreed with you on that issue. I think he specifically invoked the bargaining scheme of the Act and so on.

PN502

MR BROMBERG: Yes, he did. I think this is probably more directed to my learned Mr Parry's argument who took you, as you might recall to the passage in Isaac J's decision in the Merchant Services Guild case which is picked up in the Queensland Electricity case at tab 8 of Mr Parry's authorities. If you - as we say at paragraph 26 of our submission by reference to Munro J's decision in Joy Mining, we do not disagree with all aspects of his Honour's decision there but his Honour, in Joy Mining, did specifically consider the passage of Isaac J's in Merchant Services Guild and to the best of my recollection, I think also the Queensland Electricity Commission case, and what he concluded was the public interest entailed a full range of considerations derived from the statute.

PN503

His Honour, I am reading here from paragraph 26, his Honour was dealing with a section 170MH(3) application. In that case his Honour considered the primary source of public interest were the objects of the Act and in particular objects 3(e) and (f) and on the facts he determined, by reference to the scheme of the Act and its encouragement of fair and effective agreement-making that the employer's conduct in bargaining was capable of exciting public interest. So that decision stands squarely in support of our proposition that the conduct in bargaining of the applicant in a section 170MH(3) application is capable of exciting the public interest.

PN504

There is a further recent Full Bench which exercised section 170MH(3) powers, a decision of Castrican Brothers, Print 952544, which we refer to at paragraph 27 and that Full Bench referred to section 170LA(1) and the direction that in performing its functions under Part VIB of the Act the Commission must, as far as practical, do so in a way which furthers the object of the Act and in particular Part VIB. In that case the Full Bench considered whether the employer failed to bargain in good faith but found that not to be established on the evidence.

PN505

Now, by reference to the objects and scheme of the Act, the AWU submitted, below, that the Act encouraged bargaining to occur within a specific framework of rights and obligations. It was contend, and the Commission we say accepted correctly, that conduct in bargaining which is inconsistent, antithetical or not consonant with the scheme established by the Act ought not be facilitated by the grant of an application under section 170MH(3). That goes to the heart of our proposition and it goes to the heart of the proposition upon which the Commission below relied.

PN506

Conduct in bargaining, which, to put the labels that the Commissioner put on it, and one necessarily need not do that, but conduct that was not genuine or not fair or not free, to use another label that Commissioner Whelan did, is conduct which is antithetical to the scheme and which the Commission is entitled to say, in respect to, will not be facilitated by a grant of an application under section 170MH. The Commission is always, in our respectful submission, when called upon to exercise its functions, entitled to consider whether the exercise being sought facilitates the scheme or does not. That is manifestly so where the scheme, to a large extent, equates with public interest and as here, the Commission is asked to take into account and consider the public interest.

PN507

In assessing the public interest by reference to the objects of the scheme for bargaining provided by the Act, the Commissioner was entitled to take into account considerations going to the negotiating conduct of, we say, the contractors and assess that conduct by reference to the conduct encouraged and/or required by the Act in the furtherance of public interest. Accordingly, it was a relevant consideration in our respectful submission.

PN508

My learned friend, Dr Jessup, said this, which I think was probably the main point in opposition to our proposition, he said assume improper conduct in the bargaining. When the parties go to have the agreement certified, the Commission has no power to say: well, the bargaining was not consonant with the scheme of the Act therefore we decline certification. My learned friend said, well, if the Commission has now power at that end to decline certification for that reason, how can it be that the Commission has the power to inhibit or perhaps even prohibit the objective sought by an applicant under section 170MH.

PN509

The answer to that, in our respectful submission, is very simple. The Commission is not asked to consider the public interest when it is certifying agreements. In fact, that consideration is expressly proscribed and taken out of the task that the Commission is given in certifying agreements. That is not the case in section 170MH. Section 170MH(3) expressly requires that there be consideration of the public interest.

PN510

The difference in the approach taken, in our respectful submission, is a full and complete answer to the proposition that my learned friend Dr Jessup put contrasting the Commission's capacity at the certification end and the Commission's obligation capacity at a juncture where section 170MH(3) is called into question and the Commission is asked to terminate agreements, terminate expired agreements.

PN511

JUSTICE GIUDICE: Is that a convenient time to break for the day, Mr Bromberg?

PN512

MR BROMBERG: It is, your Honour because I am now moving to the particular conduct in the bargaining and that is a convenient time, if your Honour pleases

PN513

JUSTICE GIUDICE: We shall resume in the morning at 10 o'clock.

ADJOURNED UNTIL FRIDAY, 9 DECEMBER 2004 [4.15pm]