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Australian Industrial Relations Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Workplace Relations Act 1996 12084-1
COMMISSIONER LARKIN
C2005/2955
AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
AND
TOMAGO ALUMINIUM CO PTY LTD
s.99 - Notification of an industrial dispute - Log of claims
(C2005/2955)
SYDNEY
10.18AM, THURSDAY, 30 JUNE 2005
Continued from 24/5/2005
Hearing continuing
PN113
MS L BOOTH: I appear for the AMWU.
PN114
MS S BOATSWAIN: I appear on behalf of Tomago, with me MS J KING and at the bar table, MR CAIRNS, on behalf of the company.
PN115
MR G BOYCE: I appear on behalf of the Australian Mines and Metals Association on behalf of Alcan Grove Pty Limited.
PN116
THE COMMISSIONER: Ladies and gentlemen, I have received the written submissions. The AMWU written submission received on 21 June was amended in particular paragraphs by correspondence dates 22 June. I would presume that Mr Boatswain and Mr Boyce would have a copy of that amended advice.
PN117
MR BOATSWAIN: That is correct, thank you.
PN118
THE COMMISSIONER: Whenever you're ready.
PN119
MS BOOTH: Commissioner, just prior to commencing I would like to make a slight amendment to the list of authorities that was provided to the Commission on Tuesday of this week. It's only a small amendment, Commissioner. It pertains to the second authority listed on that document, the matter of the AMWU, the Australian Transport Network. I communicated that the pages that we'll be seeking to rely on are pages 4 to 6. It's actually pages 4 to 8, Commissioner.
PN120
THE COMMISSIONER: Now, which particular authority was that?
PN121
MS BOOTH: It's the second authority listed there, Commissioner, the AMWU v Australian Transport Network.
PN122
THE COMMISSIONER: Yes, I see that.
PN123
MS BOOTH: And the authority we're relying on is pages 4 to 8, not 4 to 6, Commissioner.
PN124
THE COMMISSIONER: Yes, thank you.
PN125
MS BOOTH: Commissioner, the AMWU notified the industrial dispute pursuant to section 99 of the Workplace Relations Act in May this year after a letter of demand and log of claims were served and rejected by the respondents, being Tomago Aluminium Co, and Alcoa Australia Limited. Accordingly the AMWU requested that the Commission exercise its power under section 101(1) of the Act defined in the dispute. Tomago Aluminium and Alcan Grove have raised a number of objections defined in this matter. Tomago, supported by Alcan, has extensive and reliable in the decision of Commissioner Bacon in Airly Coal in asserting that the AMWU involved is incapable of giving rise to an industrial dispute, for the reasons outlined at paragraph 2.5 of the Tomago submission.
PN126
THE COMMISSIONER: Could I just hold you for a moment, Ms Booth. I would have thought, and perhaps you've determined differently, I would have thought that I would have heard from Mr Boatswain and Mr Boyce in relation to their submissions filed because they were filed in relation to the jurisdictional argument, notwithstanding the fact that it is the AMWUs application that a dispute be found, but it appears that you're now going in to a reply and I can only presume that in that reply you'd be addressing material that you filed. Were the parties of the view that material filed was the extent of the submissions at all?
PN127
MS BOOTH: That would be my area, Commissioner, if I have been pre-emptive in jumping forward to provide the initial submissions of the AMWU. If you feel that it would be more appropriate to hear further submissions of the respondents in this case, then certainly I will hold my comments until they have - - -
PN128
THE COMMISSIONER: Mr Boatswain, do you have any view on that?
PN129
MR BOATSWAIN: Yes, Commissioner. I must say I anticipated I'd be going first, but since Ms Booth commenced I suppose I've taken a run from that. My understanding, I thought this was matter was addressed when this matter was programmed that outlines of submissions would be filed but not complete and we'd have the opportunity to speak to them. I certainly think that it would be more appropriate if I did commence the submissions before you because there are some additional comments that I would make, not significant, but I think it would be more appropriate for those submissions to be completed and Ms Booth have the opportunity to reply in entirety.
PN130
THE COMMISSIONER: I would have thought that would have been the appropriate way to proceed, apart from it being an outline of the submissions to be filed, there are also a number of issues that the AMWU raise and, of course, not least of all their reliance upon Schefenacker which I note your submissions didn't address any of the points raised in Schefenacker.
PN131
MR BOATSWAIN: And the proposition is that my recollection is that our submissions were in first and the unions were second. I must say I took from that that the order would have been that I would be commencing.
PN132
THE COMMISSIONER: Yes. All right then. Does anybody have a contrary view to that? I seem to think we're all agreed upon that.
PN133
MS BOOTH: No, Commissioner.
PN134
THE COMMISSIONER: Yes, all right then. When you're ready.
PN135
MR BOATSWAIN: Thank you, Commissioner. Just bear with me for one moment because I re-organised myself when Ms Booth commenced.
PN136
THE COMMISSIONER: You would seek to tender your outline of submissions, Mr Boatswain, I presume?
PN137
MR BOATSWAIN: Yes, I do, Commissioner, thank you. There was some - it may be convenient - there is an additional document that I'd seek to tender arising from those outline of submissions. You may recall the outline of submissions have a number of schedules to them. The second schedule was a table of wage comparison, Schedule B, between the analysing the wage claims contained in the log of claims, effectively analysing lowest level contained in the log of claims together with Level 14, which is the highest. What I'd like to do is or what I propose to do is tender in addition to that document an expanded version of that and, if required, the relevant awards.
PN138
What we have done is in fact done the same exercise in relation to the draft introduction claims of technical work of the award which is the award which the application seeks to divide by centum, and equally analysed in the same way the Clerical and Administrative Employees Tomago Aluminium Co Award which is a non-production award that's in place at Tomago.
PN139
THE COMMISSIONER: Mr Boatswain, can I just interrupt for a moment. You don't choose to replace Schedule B to the outline of submissions? You seek to - correct me if I'm wrong - do you seek to remove Schedule B and replace it or do you seek to tender another document in support?
PN140
MR BOATSWAIN: I think it would be more appropriate just simply to replace it. The information which is contained in Schedule B is now contained within the document I now seek to tender - - -
PN141
THE COMMISSIONER: All right. So you seek to amend the outline of submissions by replacing Schedule B?
PN142
MR BOATSWAIN: Correct.
PN143
THE COMMISSIONER: Okay. Does anybody have a view in regards to that?
PN144
MS BOOTH: Commissioner, we do object to this additional information, Commissioner. Certainly the AMWU took in the previous comments that we should take care of them together in submissions to ensure that they encompass the full parameters of our arguments. I haven't had an opportunity to look at this document and I'm not sure on what basis or how Tomago intend to use this document, so I am concerned about its admission at this time.
PN145
THE COMMISSIONER: Yes. Mr Boyce, you wouldn't have an objection I wouldn't envisage?
PN146
MR BOYCE: We have no objection, we'd support it.
PN147
THE COMMISSIONER: Yes, thank you. Ms Booth, I take your points on board. I'll provide you with an opportunity to ensure that you have the appropriate time to view the document. Yes?
PN148
MR BOATSWAIN: Can I tender that document, please, it's titled Schedule B, Table of Wage Comparisons.
PN149
THE COMMISSIONER: What you're doing is you're replacing outline of submissions and then you seek to tender your outline of submissions which includes the amended B?
PN150
MR BOATSWAIN: Correct.
THE COMMISSIONER: Yes.
EXHIBIT #TOMAGO1 AMENDED OUTLINE OF SUBMISSIONS AS AMENDED FILED 07/06/2005
MR BOATSWAIN: At the same time, Commissioner, just for completion, it might assist my friend in assessing Table B, I would then tender the Draft Production Plans Technical Workers' Award 1998 upon which those calculations have been based.
EXHIBIT #TOMAGO2 DRAFT PRODUCTION PLANS TECHNICAL WORKERS' AWARD 1998
MR BOATSWAIN: In the same vein, and I apologise to your assistant, can I tender the Clerical and Administrative Employees' Tomago Aluminium Co Pty Limited Award 2002, on the same basis.
EXHIBIT #TOMAGO3 CLERICAL AND ADMINISTRATIVE EMPLOYEES' TOMAGO ALUMINIUM CO PTY LIMITED AWARD 2000
PN154
THE COMMISSIONER: Yes, whenever you're ready.
PN155
MR BOATSWAIN: Well, Commissioner, as indicated in the outline of submissions on behalf of Tomago, which is now Tomago 1, the AMWU has notified industrial dispute pursuant to section 99 of the Workplace Relations Act in relation to a log of claims that has been served upon Tomago. The AMWU has made an application seeking we find a dispute under section 101 of the Act, founded on the service of the demand of the log of claims. Tomago respectfully submits for the reasons outlined in the written submissions and supplemented today that the application is fundamentally flawed and fails to attract the Commission's award making jurisdiction.
PN156
In essence this is because the log of claims that has been served does not give rise to an industrial dispute within the meaning of the act and therefore no dispute finding can be made by the Commission. Accordingly, the application is not competent to enliven the Commission's jurisdiction and should be dismissed. Commissioner, the application is said to be fundamentally flawed and fails to attract jurisdiction on essentially three grounds. The first is that the high proportion of the claims in the log of claims are not genuine. They are not genuine as they are fanciful and therefore incapable of giving rise to an industrial dispute.
PN157
In addition or alternatively the claims involved in an attempt to enliven the jurisdiction of the Commission in a regulatory capacity. This has been held to be impermissible and beyond the jurisdiction of the Commission. Further - - -
PN158
THE COMMISSIONER: Sorry, Mr Boatswain, for interrupting you. You're speaking to your outline of submissions, Tomago 1, are you not?
PN159
MR BOATSWAIN: Yes.
PN160
THE COMMISSIONER: All right then. You might take me, as you go through, where you're at. I presume you're at the introduction stage of your submissions which is page 3 of your document.
PN161
MR BOATSWAIN: The grounds upon which Tomago objects to the log of claims is outlined in 2.5 of the outline at page 5, Commissioner. I have already indicated that the first ground is - - -
PN162
THE COMMISSIONER: Well, we know the grounds, I think we know the grounds, and the grounds were also I think outlined by you when the matter was last before the Commission and these outline of submissions are to build upon the grounds outlined previously. So there's three points, they're fanciful, genuine claim point, the not pertaining point and the contrary to rule point.
PN163
MR BOATSWAIN: Correct. Commissioner, I don't propose to actually read in any detail the jurisdiction of the Commission which is outlined in the early part of Part 2 of the outline of submissions, being an extract of section 101 of the Act and the definition of the industrial dispute within section 4(1) of the act. I take it, Commissioner, that they would be taken as read for the purpose of today's oral submissions.
PN164
As a starting point to analyse each of the grounds that have been raised in objection to the log of claims, the first objection is that the claims are fanciful or, as they've been described, they are not genuine. Now the relevant principles have been established by the High Court of Australia and for present purposes can be found in the SBSF cases and the Riordan decision that have been referred to in our list of authorities.
PN165
THE COMMISSIONER: Now, in your list of authorities you don't outline the exact page number or paragraph that you're taking the Commission to, but I take it that within the body of your submissions in Tomago 1 you're highlighting the exact page and paragraph?
PN166
MR BOATSWAIN: Yes.
PN167
THE COMMISSIONER: Thank you.
PN168
MR BOATSWAIN: That was raised by Ms Booth at the commencement. My practice has always been if the submissions actually specify the relevant extract and page, that that would be of sufficient purpose for identifying the points being addressed. As outlined in paragraph 2.9 of Tomago 1, Commissioner, the proposition has been considered by the High Court on a number of occasions. I do not propose to read the entire extract, but in particular in relation to the first extract at 2.9 of the submission, on page 6, this is the extract from Brennan CJ and McHugh J in the Attorney General for the State of Queensland in Riordan:
PN169
Whilst the chief significance of the claim is that it marks the minutes of the award making jurisdiction is not irrelevant to the reality ...(reads)... future.
PN170
At 2.10 there is an extract of a decision of Toohey J, in the same proceedings with which Dawson J agreed, and again that extract is set out. The particular relevant aspect is the opening section of that where:
PN171
The legitimacy of AMP claims, so understood, has been accepted by the court in a number of decisions. ...(reads)... that it cannot possibly be treated seriously.
PN172
Further in that same extract, three lines down:
PN173
Inevitably questions will arise as to whether ...(reads)... along with other relevant considerations.
PN174
On the issue of setting out the relevant principles Kirby Js decision in the SBSF case has assumed some significance, particularly in the submissions that have been filed on behalf of the AMWU. In relation to Kirby Js consideration of the issue of genuineness or fanciful claims, his Honour made the following comments - - -
PN175
THE COMMISSIONER: What page are you on, Mr Boatswain, sorry?
PN176
MR BOATSWAIN: There was an additional extract from Kirby J which I wish to read - - -
PN177
THE COMMISSIONER: Yes, that's what I'm asking you, what page are you on, of SBSF?
PN178
MR BOATSWAIN: Yes. The page on SBSF, if my recollection is correct, 41.
PN179
THE COMMISSIONER: Sorry?
PN180
MR BOATSWAIN: 41 of - sorry, not - this is Riordan, I apologise. Did I say SBSF?
PN181
THE COMMISSIONER: Well, I'm sorry, I noted that. That's what I thought you said.
PN182
MR BOATSWAIN: If I did that was a mistake.
PN183
THE COMMISSIONER: It mightn't have been what you said, I must say, but all right, so where are we now?
PN184
MR BOATSWAIN: This is page 41 of the decision of Attorney General Queensland in Riordan and you'll see there's a paragraph number 4.
PN185
THE COMMISSIONER: All right, so this is at 1997, 192CLR 1, and what page are you on now?
PN186
MR BOATSWAIN: Page 41.
PN187
THE COMMISSIONER: Page 41. I have it.
PN188
MR BOATSWAIN: Thank you. At paragraph 4 his Honour made the following comments:
PN189
Nevertheless the Commission is not a super legislator. It has no power to fix wages and conditions for parties or ...(reads)... disputes by conciliation and arbitration.
PN190
If I can then take you to page 43 of the same decision which moves into paragraph 5 of the Summary of Propositions, Kirby J made this point in relation to the relevant principles to apply. I do apologise, Commissioner, I had this marked and I've just lost my place. My apologies. It starts at page 42, at the bottom paragraph 5. His Honour stated:
PN191
Nevertheless as a further implication of the constitutional notions of conciliation and arbitration and the requirement that there be an industrial dispute, this court from its earliest days derived a requirement ...(reads).... it will not be a dispute for constitutional and statutory purposes.
PN192
You will see that he continues - there's an easier way to do it, Commissioner. What I had intended to do and one of the reasons why I was struggling with extracts, I propose to hand up a copy of a Full Bench decision of Thiess Contractors Pty Limited where the relevant extract has been set out in full by a Full Bench of this Commission in March 1998 and I was simply going to rely on the extract that's contained in - - -
PN193
THE COMMISSIONER: Is that decision relevant to the issue that's before me?
PN194
MR BOATSWAIN: It is, only in the sense that this was a Full Bench decision - - -
PN195
THE COMMISSIONER: You're not relying upon that Full Bench decision?
PN196
MR BOATSWAIN: Only in the sense that the Full Bench decision has adopted the extract which I am taking you to in Kirby's decision as being the appropriate test for assessing whether the claims is genuine.
PN197
THE COMMISSIONER: So you do rely upon that decision?
PN198
MR BOATSWAIN: I do rely on the decision, yes.
PN199
THE COMMISSIONER: Do you have a copy?
PN200
MR BOATSWAIN: Yes, I do, I hand a copy to you.
PN201
THE COMMISSIONER: Do you have a copy for the others?
PN202
MR BOATSWAIN: Yes, I do. The relevant extract which I have started to read is set out at page 6 of that decision, Commissioner.
PN203
THE COMMISSIONER: Yes, whereabouts?
PN204
MR BOATSWAIN: You'll see at the bottom of page 6 there is a reference to the High Court's approach to genuineness and summarised by Kirby J in the Attorney General in the State of Queensland and starts with paragraph 5, "Nevertheless," which is the passage which I have been reciting to the Commission. If I go to the top of page 7 of that decision, Commissioner, I believe where I was up to with the extract where his Honour is stating:
PN205
Impermissible purposes might include to purport a use of demand in log of claims is assumed by ...(reads)... conciliation and arbitration by the Commission.
PN206
The Full Bench then further extracts a passage at page 7, or is point 7 of Kirby Js decision which appeared at page 45 of the decision itself:
PN207
In determining whether a log of claims procedure has given rise to dispute it is clear that the proof of the action of industrial disputation to supplement ...(reads)... within the framework of the log of claims.
PN208
Now, the significance of that extract, and I might indicate that the Full Bench did go on to accept that as the proper expression of the test, particularly of Kirby J in the Riordan matter. Its significance is, Commissioner, that there has been some suggestion that Kirby Js view did not contemplate that the framework contemplated that the demands should be measured against what can be achieved by negotiation, conciliation and arbitration by the Commission.
PN209
It is our respectful submission that the extract that I've just referred to and the passages quoted from the decision of Kirby J in the Attorney General in the State of Queensland and Riordan make it clear that in fact the framework that his Honour was referring to was a framework of serious negotiation of a dispute and to the extent that unresolved by negotiation, conciliation and arbitration by the Commission. In that regard it is consistent with the other test as enunciated in a slightly different format by the other judges who have made decisions in the Riordan matter, and in particular it is important that at that point at page 45 of Kirby Js decision in the Riordan decision, with reference to apparent extravagance in some of the claims will not of itself destroy the genuineness of demand, or its capacity to give rise to industrial dispute.
PN210
It's cross-referenced to a footnote, paragraph, footnote 200 - paragraph 200 picks up the comments by McHugh J in the SBSF case at page 306 and the significance of that decision, in that extract in the context of Kirby Js statement of the test is significant. If I can take you to the decision of SBSF, and in particular the judgment of McHugh J at page 306. You'll see at the very bottom of the page his Honour starts by referring to the prosecutor's attack on the doctrine and the acceptance of its ..... and he goes on to - that's at page 307:
PN211
The use of the ambit concept does to preclude inquiry into genuineness and provided that the demands are a reflection of genuine desire to provide for changes ...(reads)... does not really want what it demands.
PN212
I don't read the next sentence in its entirety that you will note that three lines down there is a comma, after that his Honour continues:
PN213
The proper conclusion may be that the real purpose sought to be achieved by serving the log ...(reads)... That seems to be the situation in the present case.
PN214
He then proceeds down to about .6, there's a line starting "Price index", his Honour continues:
PN215
Even allowing to have a document in full operation so as to facilitate variations of the award in the future ...(reads)... or any time in the foreseeable future.
PN216
In the last paragraph on page 307, McHugh J then refers to the escapable conclusion that:
PN217
The claims were formulated for the purpose of creating a pay dispute as to obtain an award in respect of such wages and allowances that the Commission thinks fit for employees governed by the proposed award.
PN218
And continues on to find that that is not a dispute for the purpose of the act. The significance of that passage, we would submit, Commissioner, is that it makes it very clear that in asserting the test to apply in establishing the genuineness of a claim that Kirby J was having regard to negotiation, conciliation and arbitration in the context of what can be achieved in the foreseeable future.
PN219
Accordingly, it is Tomago's submission that the framework concept embraces the necessary connection with negotiation, conciliation and arbitration in due course for demands contained in a log of claims to be genuine and within the jurisdiction of the Commission. On that basis it is submitted that the appropriate test, although variously expressed, it essentially involves demands, although exaggerated, need to be obtainable within the framework of negotiation, conciliation and arbitration within the foreseeable future or in due process.
PN220
It is also relevant, Commissioner, as referred to at 2.11 of the Tomago submission, and I do not intend to read the entire extract there, but simply refer to it and adopt it for the proposition that it supports the various submissions, various extracts and statements of principle by the various judges that I've referred to, both in reading and in the SBSF case on the basis that those two cases appear to be the high water mark as to what are the relevant principles to apply in assessing the genuineness of a log of claims.
PN221
They are reflected in submissions, and it seems to suggest that there are two bases upon which the claims can be fanciful, probably related and in some respects there might not be that much of a difference, but if they are fanciful, and if they do not bear a reflection as to the industrial reality in the context in which the demands are to be evaluated, then that would lead to the inescapable conclusion that the demands are not genuine, they are fanciful, they go beyond the scope of the ambit doctrine and instead represent an attempt by the notifier to attract the Commission's jurisdiction, to exercise a general regulatory power to make wages and conditions or fixed wages and conditions that the Commission thinks fit in the circumstances of the application and, as indicated by those authorities, such an approach is not permitted and is not within the jurisdiction of the Commission.
PN222
The use of the ambit concept does not preclude inquiry into the genuineness of a log of claim. If the demand is so extravagant, then it cannot be reasonably understood to be intended to provide for the change, then the Commission, by reference to its own knowledge as to what is the industrial reality of the workplace or based on any of the evidence that is submitted to it, or based on just a simple assessment of the nature of the claims themselves, can and should make a conclusion that the claims contained in the demand are fanciful and are therefore beyond the jurisdiction of the Commission.
PN223
Now, in that respect, Commissioner, as is clear from our submissions, we do respectfully refer you to the decision of Commissioner Bacon in the Association of Professional Engineers, Scientists and Managers Australia v Airly Coal and Others. We refer to this at 2.14 of the Tomago1. As indicated, Commissioner, it's our respectful submission that for the purpose of the exercise of assessing the genuineness of the claim, or the log of claims and demands, the Commission would be required to consider whether the claims are so extravagant or fanciful that they are not likely to be achieved within the framework of conciliation and arbitration.
PN224
For the purpose of this exercise we do submit that the comparison should be against the rates of pay prescribed in the Drafting Production Plans and also Technical Workers Award. But it's also relevant, we submit, that the recent, or relatively recent detailed assessment by Commissioner Bacon in Airly Coal is highly relevant to the task that this Commission is called upon to undertaken given the objections that have been raised and we say - - -
PN225
THE COMMISSIONER: My apologies, Mr Boatswain, for interrupting your submission. You do acknowledge that Commissioner Bacon's decision related to a log in the coal industry and/or the coal mining industry and a number of his determinations in relation to particular claims contained within the log was based on also his experience and knowledge of and within that industry.
PN226
MR BOATSWAIN: I certainly acknowledge that. It's interesting on two bases, Commissioner. One of the reasons why we say it is highly relevant is that it was remarkable when we were reviewing the decision to identify that so many of the clauses, in fact the majority of clauses contained in the log that was being considered by Commissioner Bacon in respect of the relevant principles are identical to the claims, the demands that are contained in the log that is the subject of this application.
PN227
THE COMMISSIONER: Do I have those particular claims or the terms of those claims as considered by the Commissioner?
PN228
MR BOATSWAIN: We don't have the actual log but the actual claim - - -
PN229
THE COMMISSIONER: I'm not comfortable that they're the same wording.
PN230
MR BOATSWAIN: Well, I was going to say that unfortunately Commissioner Bacon actually extracted the relevant clauses or claims contained in the log in his consideration of the matter. So if you look at Schedule A to the submissions, Commissioner.
PN231
THE COMMISSIONER: Yes, which is a comparison but they're words. They're not the actual clause themselves. I mean, I've looked at Schedule A and it's a comparison of the AMWU claim as opposed to the APESMA claim, but nowhere, and take me to it if it's there, but nowhere does it outline the actual terms of the claim, unless it's found within points.
PN232
MR BOATSWAIN: It's found within the decision. It's actually - - -
PN233
THE COMMISSIONER: The clauses you have in A are in relation to the APESMA log are outlined in forming the Commissioner's decision because I know at some points in the Commissioner's decision he didn't outline the actual claim, or the terms of the claim, but you say, and I've not cross-referenced your attachment A to your submissions to the particular parts of the Commissioner's decision, but is that the submission to me, that I can find the terms of the claims that you say are the same as the AMWU claim, I can find there, can I?
PN234
MR BOATSWAIN: Yes, you can find them and that is the reason why I did not call for the file to produce the log because I have done the cross-reference and if it is of any convenience I could either do it now or actually submit just the cross-reference based on the clause identified in Schedule A. To the extent, for example, Commissioner, that in Commissioner Bacon's decision where there were some decisions made based on his experience in the coal industry actually assisted the log being accepted as not as genuine. For example, the portability of service clause which is in identical terms in this log of claims, the Commissioner's deliberation on that to - although he expressed it to be somewhat fine line and ball, was prepared to uphold it on the history of portability of long service leave in the mining industry.
PN235
It would be our respectful submission that such history of portability of long service leave does not arise in this matter. If you would bear with me just one moment I'll find that. As an indication, if I can take you to paragraph 70 of Commissioner Bacon's decision in Airly Coal.
PN236
THE COMMISSIONER: Yes, claim 60.2 of the APESMA - - -
PN237
MR BOATSWAIN: Yes, and it quotes, " calculating employer service with the employer all periods of employment with any previous
employed are deemed to be serviced with the employer." You will then see that in paragraph 71 he refers to the employer's
submission that the claim is fanciful. He then goes on to say,
"In considering" - - -
PN238
THE COMMISSIONER: Where are you now, I'm sorry?
PN239
MR BOATSWAIN: Paragraph 71 of Commissioner Bacon's decision, he refers to the submission that this claim, that is claim 60.2 is fanciful, "In considering the claim on its face one might quickly agree." Then you will see he refers to the fact that:
PN240
In the coal mining industry for the purpose of long service leave the principle inherent in this claim is already in place and has been for 50 years. Long service leave is portable in the industry.
PN241
He then goes on in paragraph 72 then based on that principle of portability to hold that the claim in that log of claims was not fanciful. I'll say something else about that, but if you - - -
PN242
THE COMMISSIONER: Well, wait a minute. It's determined that that claim is not fanciful?
PN243
MR BOATSWAIN: Yes.
PN244
THE COMMISSIONER: So in the AMWU log have I got the same clause?
PN245
MR BOATSWAIN: Yes, but it's our respectful submission that the issue of portability that is critical to his Honour's finding that the claim was not fanciful is absent from this industry.
PN246
THE COMMISSIONER: Where in the submissions do I find that? Where in your submissions do I find that? Is that outlined in Schedule C as in the rationale for the comparison?
PN247
MR BOATSWAIN: Schedule C does - - -
PN248
THE COMMISSIONER: Was it Schedule C - Schedule A you were talking about, no, it's Schedule A?
PN249
MR BOATSWAIN: No, Schedule A only lists those claims - - -
PN250
THE COMMISSIONER: So the long service leave clause in the AMWU log, is that listed in Schedule A?
PN251
MR BOATSWAIN: No, because it is not a - Schedule A only lists those clauses, those demands that are found in the AMWU log which is currently before you that Commissioner Bacon found to be fanciful. As he did not find this to be fanciful it's not included in Schedule A. However, an objection is taken to it in Schedule C and in Schedule C, I suppose my intention was by listing it is as fanciful the submission was going to be that it is fanciful on the basis that the distinguishing factor in Commissioner Bacon's decision as to the portability of the history of portability in the industry doesn't exist.
PN252
THE COMMISSIONER: All right, and where is that particular provision or the name of that provision found in Schedule C?
PN253
MR BOATSWAIN: Just bear with a minute. I just had it. That's on page 6 of the schedule which is clause 39 of the AMWU log.
PN254
THE COMMISSIONER: All right, so there's no submission there that tells me why. That was something I was going to raise with you. Nowhere in Schedule C does it give me the rationale for the argument. There's no argument there. It's numbered clauses in the log before me, it's evidently the title of that clause and then there's a notation, like section 89A or not pertaining and it refers to Electrolux, but it doesn't take me to the page number in Electrolux where that was determined or by any member of the High Court in relation to what they said about that particular provision.
PN255
It says it's not an allowable award matter. It gives me no rationale why. It's not an allowable award matter. Nowhere in the submission can I find any argument going to section 89A. I can't find it in the written submission and contrary to law, because contrary to law in the written submission is addressing two bases, trade practices and prohibitive reason.
PN256
MR BOATSWAIN: It may be a misunderstanding on my part, Commissioner. I had understood that the basis of outline was to set out exactly the outline and the perspective - - -
PN257
THE COMMISSIONER: Well, that's fine, so what you are saying is you're going to go through each of those clauses, you're going to go through this whole submission and give me the argument as to why you say that?
PN258
MR BOATSWAIN: Correct.
PN259
THE COMMISSIONER: You're not just going to rely upon this document so Schedule C we'll get to and you will take me to exactly the particular parts and pages that you rely upon?
PN260
MR BOATSWAIN: Yes, correct.
PN261
THE COMMISSIONER: Well, that's fine. We're going to need more than one day. Has that thought ever crossed anybody's mind?
PN262
MS BOOTH: Yes, Commissioner, it was a great disappointment to us when we found that you received the authority for Tomago and to the lack of specific references within that. We didn't appreciate being taken ..... here today.
PN263
MR BOATSWAIN: To answer that question, as I indicated to my friend, I thought we already had on the record, each of the authorities that I have referred to have been cross referenced with a page and proper extracts within the written submissions. To the extent that - - -
PN264
THE COMMISSIONER: Well, not with each of the particular clauses.
PN265
MR BOATSWAIN: No, but that, I had always anticipated, would be a matter that I would address to you to provide you an opportunity to raise any issue with me as a matter of submission. I say I probably was misled. There was an earlier decision where I noted this format and the format we have adopted, or I adopted in Schedule C was based on earlier proceedings that I - - -
PN266
THE COMMISSIONER: What, before me, Mr Boatswain?
PN267
MR BOATSWAIN: No, not before you. Before another member, a Senior Deputy President of the Commission.
PN268
THE COMMISSIONER: Well, what does that do to me? I mean - - -
PN269
MR BOATSWAIN: I just don't - no. I apologise if that is not what you had contemplated by the - - -
PN270
THE COMMISSIONER: You give me - as long as I know that I'm going to have submissions on this material.
PN271
MR BOATSWAIN: You will be.
PN272
THE COMMISSIONER: Because at the moment when I look at it, the National Training Board, and it says "not pertaining Electrolux," "not allowable award matter, section 89A". So, why? And also why 89A is relevant to me? I know the union has addressed that question in its reply so I presume your submissions will get to that and you'll reply to that.
PN273
MR BOATSWAIN: Yes.
PN274
THE COMMISSIONER: All right. Well, look, we will just continue on. As long as I know that you're going to take me to the relevant material and give me the argument why you say particular things are the way they are, then we will just progress and at the end of the day we'll have to look for another day or another two days. We were talking about A, initially we talked about A and my question to you is, well, how do I know they're the same clauses. So you took me to something that really isn't in A anyway.
PN275
MR BOATSWAIN: If we're still on page 11 of Commissioner Bacon's decision, the point can be demonstrated by reference to some clauses immediately above that. You'll see, for example, at the top of the page, paragraph 66 of the Commissioner's decision, refers to claim 41, "includes a claim of up to 24 months of paid maternity leave," that is exactly what we have in this log of claims which is addressed in Schedule C. Again, the next paragraph 67 of the Commissioner's decision, claim 43 demands 60 days, that is clause with paid leave on the sickness, serious illness, injury, death of a friend, reimbursement of travel expenses and accommodation costs associated with taking compassionate leave. These are matters that are contained in the log. If it's easier and if we are coming back for another day I can - - -
PN276
THE COMMISSIONER: No, I'll just hear your submissions. You need to be aware of the issues that are coming forth with me in relation to the submissions. So I've highlighted that to you. If you think I need it, then you do it, but you need to be aware, that's what I look at. I look at A, and I mean, there's authority, Full Bench authority in this Commission that you actually have to look at the words and categorise the particular clause in determining whether it is a matter that pertains and I think there's also authority in this Commission in relation to whether the matters of leave pertain and I think you'll find that in Schefenacker and I think Ballantyne, decision of Vice President Ross, and of course it's been determined in a number of other matters on my understanding. But look, Mr Boatswain, I'm highlighting these issues that arise with me as I've gone through these submissions that have been filed. So it's for you to take that on board and consider it.
PN277
MR BOATSWAIN: I should, just in response, Commissioner, it's been my experience, and I must say I haven't had one where so many objections are taken to matters, but I've always found it easier and more convenient to actually have the debate in the court rather than have the extensive statement of those principles and also - - -
PN278
THE COMMISSIONER: What do you mean statement of the principles?
PN279
MR BOATSWAIN: Well, the statement of principles in the specific objections in detail - - -
PN280
THE COMMISSIONER: Yes, but I'm looking at the clause, aren't I? I mean, in some of the claims it might be quite plain with you summarising, but you just, in A, you're just listing words, minimum weekly wages, industry allowance, disability allowance. Then you're comparing it over to the AMWU claim. Now, those claims I have before me in the log so I can actually look. You don't tell me - well, you tell me where the AMWU clauses are and I can turn to the log and I can look at that. So I just raise them. I mean, I don't know - anyhow. I think I've raised what my concern was, so - - -
PN281
MR BOATSWAIN: I can indicate that to the extent - my respectful submission is that the decision is so detailed of Commissioner Bacon, that's why it's attracted my attention, that it is possible to identify those and that's what my intention was, but that will be - your concerns are noted and - - -
PN282
THE COMMISSIONER: Well, you take it on board. If you don't think I can, then you need to have a think about it, but yes, please continue with the submissions. Where were we up to?
PN283
MR BOATSWAIN: Good point, where were we up to? Just excuse me one moment. Commissioner, my recollection is - I apologise, by pulling out other bits of paper I've lost where I was.
PN284
THE COMMISSIONER: Look, I want to photostat some material, Mr Boatswain. I'm going to adjourn for five minutes. You find out where you're at and then I'll come back. The Commission stands adjourned.
<SHORT ADJOURNMENT [11.16AM]
<RESUMED [11.29AM]
PN285
THE COMMISSIONER: Did you find where you were, Mr Boatswain?
PN286
MR BOATSWAIN: Yes, Commissioner, I do apologise for that. I also took the opportunity to obtain some instructions and had some brief discussions with my colleagues at the bar table. Taking on board what you have said, Commissioner, I have instructions to make an application that we believe would probably at the end of the day expedite the consideration of this application. It is possible I could spend the rest of the day going through and cross-referencing but as you've indicated we're not going to finish today, it might be more convenient and it's my application that the matter today be adjourned at this point. I then return to the office and dictate and prepare in documentary form those matters which I have addressed. I anticipate I'll be able to have that finished by no later than close of business Tuesday. I only say Tuesday because I'm in Melbourne tomorrow, and then that would then be served, filed and served and allow the parties to look at it and we can deal with the matter more expeditiously on the next occasion.
PN287
THE COMMISSIONER: Well, my question to you was, you're going to take me to these particular points, are you not, and you're going to provide to me the rationale behind the outline of submission. That was what my question was. I mean, I would have thought that was part and parcel of what I was doing today. I realised we wouldn't finish today because there are so many items that are raised and - anyway, Ms Booth, do you have a view on that?
PN288
MS BOOTH: Commissioner, certainly we're of the view that it would be best to expedite this matter as quickly as possible. Mr Boatswain assures me that he has all of the references here today, accepting our preference that we understand fully the basis on which Tomago is making their claims sooner rather than later. So Mr Boatswain tells me that it's going to take him more than today to go through all of the matters he's raised in Schedule C.
PN289
THE COMMISSIONER: Well, I've already said that. Any Blind Freddy could have seen that it would be a longer case than one day, but I mean, so be it. I would just list another day to continue the matter. But what's been put to me now is that an adjournment to draft up further written submissions.
PN290
MS BOOTH: Commissioner, if that were the case, if an adjournment were granted we'd like to see very specific grounds given as to what submissions were to be given. There are a number of matters still within the outline of submissions that we haven't dealt with, particularly the matters of whether the log of claims is contrary to law. We haven't put any submissions in on that matter. If Mr Boatswain was given an opportunity to come back to you at a later time we would request that that only be in regards to the matters he's raised in Schedule C in respect of whether the claim is fanciful, whether the claim pertains to the employer/employee relationship and that matters about whether the claim is contrary at all should be dealt with in this way.
PN291
THE COMMISSIONER: So what, do you object to the application for an adjournment?
PN292
MS BOOTH: Sorry, Commissioner, our preference is that we deal with the matter here today, Commissioner. I'm simply saying the alternative, if you feel that an adjournment would be helpful, we would prefer that adjournment occur after we've had an opportunity to put submissions about the matters contrary to law.
PN293
THE COMMISSIONER: Thank you. Mr Boyce?
PN294
MR BOYCE: We seek the adjournment application put by Tomago.
PN295
THE COMMISSIONER: Mr Boatswain, I'm not going to adjourn the matter. I've listed it for hearing today and I plan to hear it today. I highlighted earlier that it will not finish today, and logic tells me it will not finish. But I see no reason it should not continue and we see whether we get through your submissions and whether or not I am of a mind to entertain further submissions on behalf of Tomago if your submissions conclude today, but I doubt very much whether your submissions would conclude today. So let us continue. Whereabouts were you in addressing Tomago1, which is outlined?
PN296
MR BOATSWAIN: Thank you, Commissioner. What I was proposing to do then, Commissioner, at this point in time is take you to the decision of Airly Coal, which I had started to address you on.
PN297
THE COMMISSIONER: Yes, but whereabouts in your written submissions
are - - -
PN298
MR BOATSWAIN: I'm just going back to that now.
PN299
THE COMMISSIONER: Because Airly Coal is mentioned, I think, firstly in 2.14 of your written submissions, so I don't know if you're at 2.14 or you're at 2.25.
PN300
MR BOATSWAIN: No, I was at 2.14, Commissioner.
PN301
THE COMMISSIONER: Fine, yes.
PN302
MR BOATSWAIN: You may recall that I had just addressed you in relation to paragraph 2.12 of the outline where I had indicated that there was - assessment would need to be made by the Commission involving establishing what levels of benefits is currently being provided and compared with the claims and for the purpose of this exercise you will recall I indicated the comparison should be against the rates of pay prescribed by the Drafting, Production Plans and Technical Workers' Award. Prior to moving into that assessment, I then moved to 2.13 and we were referring to the proposition that is outlined in the Full Bench decision as referred to in paragraph 2.13, being the Retail Traders' Association (Victoria) and Others v Action Food Barns in relation to the desirability of consistency, and that is at page 11 of that decision, Commissioner.
PN303
You will see at page 11 there are nine numbered paragraphs dealing with clauses contained in the relevant award there and you will see following that there is a paragraph commencing, "As we have previously noted, " I refer to the log before us is identical to that considered in Lampzu.
PN304
THE COMMISSIONER: Wait a minute. Page 11 of the decision?
PN305
MR BOATSWAIN: Yes, Commissioner.
PN306
THE COMMISSIONER: Whereabouts are you on that?
PN307
MR BOATSWAIN: You will see that at about point 8 there is a paragraph commencing, "As we have previously noted."
PN308
THE COMMISSIONER: No. Is that just above the underlined bold, 8, The Demands? You've probably got an electronic copy. I have my own copy of the decision.
PN309
MR BOATSWAIN: I do apologise. I'm sorry.
PN310
THE COMMISSIONER: I don't have an electronic copy.
PN311
MR BOATSWAIN: I don't see - - -
PN312
THE COMMISSIONER: Do you have a copy for me of what you've got?
PN313
MR BOATSWAIN: Yes, I do, Commissioner. I do apologise.
PN314
THE COMMISSIONER: That might be better.
PN315
MR BOATSWAIN: I'll just open up to the page.
PN316
THE COMMISSIONER: So the desirability of consistency is to support the argument that you say to me I should determine the provisions before me in exactly the same manner as Commissioner Bacon did?
PN317
MR BOATSWAIN: Yes, to the extent that there is commonality between the actual log of claims that was considered and, to a similar extent, there is some similarity in relation to the - although not the industries - but what appears to be the nature of the work, an APESMA log and that's the log that is with the decision for Commissioner Bacon of course was APESMA in the log of claims, but in circumstances where I will take you to the decision, you can identify that the - if the log of claims are not in exactly the same term, they are in substantially the same terms as - - -
PN318
THE COMMISSIONER: And where do you say at point 2.14 of your submission, relevant principle, that's based on the Retail Traders' Full Bench decision and - - -
PN319
MR BOATSWAIN: 2.13.
PN320
THE COMMISSIONER: No, no, but down in 2.14, you say firstly it involved "an application of the relevant principles outlined above to a log of claims." When you say "outlined above", do you mean all the relevant principles of the submissions outlined above, or are you talking about point 2.13 of your submission?
PN321
MR BOATSWAIN: No, the relevant principles as to the test of assessing a log of claims that we've outlined at 2.9, 2.10 and 2.11.
PN322
THE COMMISSIONER: Yes.
PN323
MR BOATSWAIN: On the basis of consistency in 2.14, we made reference to the fact that a log of claims that were the subject of the decision was effectively for all relevant purposes identical to the log of claims, the subject of this current application. We then proceed, in 2.15, in respect of the extract that I referred to, Commissioner, that is addressed in the second half of the paragraph on page 11 of the computer printed decision.
PN324
THE COMMISSIONER: Yes, in what paragraph of the Retail and Action Food Barns?
PN325
MR BOATSWAIN: You will see - I'm sorry, they're not numbered, so it's difficult. There are nine numbered paragraphs going from 1 to 9 dealing with clauses, and then the following paragraph commences, "As we have previously noted."
PN326
THE COMMISSIONER: Yes, thank you, I have that.
PN327
MR BOATSWAIN: Reading on, it says, "The log now before us is identical to that conceded in Lampzu." Submissions were made, I don't read that passage. I go to fourth line, about halfway along:
PN328
In so deciding we have taken into account first the subjectivity necessary attendant upon any assessment of fancifulness ...(reads)... should be altered.
PN329
Now, we respectfully submit that that principle, and there have been other occasions where the Commission has expressed desirability of consistency, however it still remains a matter for you, Commissioner, to make assessments as to the genuineness of the various matters that have been contained in the matter before you today and also assessments as to whether those matters pertain to the relationship of employer/employee. If there are factors in the consideration, for example, of Commissioner Bacon's decision that do not apply to the log of claims or the industry to which the current log of claims applies, they are matters that you can depart from in your obligation to making an assessment based on the matters currently before you in relation to this industry and this application.
PN330
We proceed in 2.15 of the submissions, Commissioner, to indicate that for the second reason, that is with consistency, we say that Airly Coal is of extreme relevance and importance. Commissioner Bacon has made assessments and conclusions regarding whether the claims were genuine, both individually and as a whole. Refer to the table that has been prepared which is Schedule A, detailing the claims termed by Commissioner Bacon ..... contained in the current logs ..... business application.
PN331
If I could then take you to first of all Schedule A.
PN332
THE COMMISSIONER: Do you acknowledge that the Commissioner's decision was determined prior to the Full Bench in Schefenacker, also prior to the decision of Vice President Ross in Ballantyne?
PN333
MR BOATSWAIN: Yes, I do. So in relation to the decision of Schefenacker, Commissioner, I can address this - I was intending to address this subsequently. The importance, one of the important factors that does arise out of the decision of Schefenacker is the recognition that the earlier cases dealing with the construction of the terms pertaining to the relationship apply to the construction of 170L(1) of the act.
PN334
THE COMMISSIONER: LI?
PN335
MR BOATSWAIN: Sorry, LI, did I say L(1) - LI, my apologies, I misread it, and furthermore that the decision in Schefenacker did uphold the application and reaffirm the - I take that back, I withdraw that.
PN336
THE COMMISSIONER: I'm not asking you to jump from your submissions and start going to Schefenacker. If you're going to get to that in your submission, then I'll leave it to you in your own good time. I only say to you that it was, although I note that it was determined after the High Court decision in Electrolux which was 2 September 2004.
PN337
MR BOATSWAIN: Correct. Yes, it's interesting that Airly Coal was decided, I think, about four days before Electrolux was handed down, Commissioner.
PN338
THE COMMISSIONER: No, after.
PN339
MR BOATSWAIN: Was it?
PN340
THE COMMISSIONER: Well, on my notes of when Electrolux was - 2 September. Commissioner Bacon's was 16 September.
PN341
MR BOATSWAIN: Yes. I obviously had a typo put in - a typographical error, I had someone type it on and they had 20, but in any event, Commissioner, it is one of the reasons we say that it is relevant, that the - and I remind you at this point I was dealing with the issue of genuineness and not matters pertaining. I'll address that because we submit that Commissioner Bacon's decision is equally relevant in that regard. What I proposed to do, Commissioner, was just to illustrate the comparison, if I may, by reference to Schedule A, but also take you to the current log of claims which is before us and also the decision of the Commissioner.
PN342
If I could take you first to the decision of Commissioner Bacon and you will
note - - -
PN343
THE COMMISSIONER: In print PR951955, 16 September 2004?
PN344
MR BOATSWAIN: That is correct, Commissioner.
PN345
THE COMMISSIONER: Thank you.
PN346
MR BOATSWAIN: And in particular paragraphs 4 of that decision, you will note that in paragraph 4 of that decision the Commissioner lists the grounds upon which objections are taken to the log of claims that he was addressing and although not all of them have been replicated in the objections that are taken in the proceedings that are currently before you, the grounds that are taken in this application are listed in the objections before the Commissioner in that matter. That is, the claim is not genuine because it's fanciful which is the second bullet point. The third bullet point is the claim it not connected with the relationship between employer and employee and the final bullet point, which was the fifth, the claim requires ..... to law.
PN347
I mention that only, Commissioner, in the sense that the Commissioner then dealt with each of those bullet points on the grounds of objections within the body of his decision. On page 4 of that decision, the Commissioner dealt with the issue as the claims are fanciful, and he noted that the employers had submitted that the claims, or some of them made by notifying the union in that matter were so extravagant or fanciful that even allowing for the document, the claims are not likely to be achieved in the foreseeable future.
PN348
The Commissioner then proceeds at paragraph 32 to extract a passage from the Action Food Barns and Others matter, Brennan CJ and McHugh J, and over the page he follows it with an extract from the decision from Toohey J. I indicate that they are passages which we have referred to in the Tomago1 submission as to relevant principles. Equally jurisdictionally the Commission in paragraph 33 then indicates that the Commission must also have regard to the fact that it's not a general regulatory body and there is an extract over the page on page 6 of Mason CJ, Dean and Gaudron JJs from the SPSF cases, and there again is an extract of submission that we have taken you to already.
PN349
In our respectful submission the Commissioner then goes properly in paragraphs 34, 35 and 36 to assess and state the proper tests that are to be applied in these matters in the context of the decision of SBSF ex parte Attorney General of Western Australia and the Shop Distributed Allied Employees' Association ex parte Action Food Barns and Others that has been referred to earlier, which is in fact is the - in fact, the Attorney General for the State of Queensland v Riordan and Others, you'll note that the reference given at the citation at paragraph 32 of the Commissioner's decision is the 1997 192 CLR - - -
PN350
THE COMMISSIONER: I'm sorry, say that to me again, please.
PN351
MR BOATSWAIN: The extract at paragraph 32 that the Commissioner refers to, he gives us the name of the matter, the re Shop Distributors and Allied Employees' Association ex parte Action Food Barns and Others and you'll see there's a citation.
PN352
THE COMMISSIONER: Yes.
PN353
MR BOATSWAIN: The 1997 192 CLR 1, that is the Attorney General for the State of Queensland v Riordan and Others.
PN354
THE COMMISSIONER: Yes, I know because I have it. It's all right, I know, because I had to look twice at that, but I know that. I think that's the one you're referring to as well.
PN355
MR BOATSWAIN: That's the only reason I make that point, Commissioner.
PN356
THE COMMISSIONER: Yes.
PN357
MR BOATSWAIN: Apparently when you do a case based search three names come up for the one matter.
PN358
THE COMMISSIONER: That's all right. So where are we?
PN359
MR BOATSWAIN: Well, just turning back to the decision of the Commissioner and particularly in paragraphs 35 and 36, the Commission then summarises what he believes to be the test as enunciated from those two authorities. In my respectful submission that the statement at paragraph 36 is whether or not the claim is achievable in the foreseeable future remains the relevant test of determining whether a claim is generally advanced. As indicated earlier in our submissions there have been various descriptions of that test, particularly arising from the Reading decision and the expressions by Kirby, Toohey, Brandon, McHugh JJs and we say that that is an acceptable and accurate assessment of the relevant test to be applied.
PN360
At paragraph 38 of his decision the Commissioner then notes that:
PN361
In order to determine what is achievable in the foreseeable future it is essential as a starting point to establish ...(reads)... are currently being provided.
PN362
The Commissioner then makes the observation that:
PN363
Contemporary industrial relations framework starting point is now...(reads)... safety net award.
PN364
But then proceeds to address in paragraph 39 the fact that the onus is with those who seek to invoke the Commission's jurisdiction to establish the jurisdiction, and the essential points at 39 and 40, he gets to the position that in the absence of any direct evidence being led in relation to what is being applied in practice, the level of bans that are currently being provided, the Commission is entitled to rely on its own experience and knowledge of the industry to make that assessment.
PN365
Having done that the Commission then turned to consider the various claims identified by the employers so as to be extravagant and/or fanciful, and he does that in paragraph 41. Commissioner, he then goes at paragraph 43 and addresses the minimum weekly wages. In paragraph 44 he makes the observation that:
PN366
The above log of claims also demands that payment in a number of allowances in these claims are bare claims. That is, an industry allowance ...(reads)... of the five classification levels.
PN367
So he has undertaken that approach. It is our respectful submission that that approach is recommended and is applicable and should be followed in consideration by you of the log of claims that is the subject of this application. You will see, if I can take you to the log of claims itself, there is a minimum weekly wage and there are 14 levels. A new employee is a wage rate of $600, and level 14 is 2000.
PN368
THE COMMISSIONER: Not as high as the rates before Commissioner Bacon, though, are they?
PN369
MR BOATSWAIN: The rates themselves are not, but interestingly if you then, as Commissioner Bacon does, and he lists in paragraph 44 the industry allowances and the various other allowances which he's described as bare claims, that are due and payable simply for being employed and should form part of the wages claim. That is what the calculations in Table B replicated.
PN370
THE COMMISSIONER: Table B?
PN371
MR BOATSWAIN: Schedule B, I call them tables, Schedule B. The new employee rate is the same, $600, and the level 14 which is - I don't have that, my mistake. The wages may not be as high - - -
PN372
THE COMMISSIONER: Where are the clause numberings you've got in Schedule B? You haven't provided me with a clause number.
PN373
MR BOATSWAIN: Clause numbers, I must say we've provided in both Schedule A and Schedule C, Commissioner. We did not replicate them - - -
PN374
THE COMMISSIONER: Could somebody give me the clause numbers, please.
PN375
MR BOATSWAIN: Yes. In relation to the AMWU's log of claims, the wages claim is clause 1.
PN376
THE COMMISSIONER: I don't mean verbally - you're going to do this now, are you? All right.
PN377
MR BOATSWAIN: If it's easy - that's why - it would be easier if I can give them to you, I believe - - -
PN378
THE COMMISSIONER: All right, so clause 1.
PN379
MR BOATSWAIN: If I can take you to Schedule A and make it easier, Commissioner, because I've listed the clause numbers there. What we have done is - if you look at Schedule A you'll see the first column talks about weekly wages and bare claims, so we have combined each of the allowances - - -
PN380
THE COMMISSIONER: All right, so special rates and allowances is clause 3 in the log.
PN381
MR BOATSWAIN: Yes.
PN382
THE COMMISSIONER: Industry allowance is clause 4 in the log, training allowance is clause 5 in the log, is that correct, is that how I read this?
PN383
MR BOATSWAIN: Yes, industry is 4. The site allowance is 5, the training allowance is 6, extra payment is 7, the meal allowance is 8, yes, and it reads on that way.
PN384
THE COMMISSIONER: Okay.
PN385
MR BOATSWAIN: That exercise, when you look at the calculation of the bare wages following the approach adopted by Commissioner Bacon in Airly Coal results in a weekly claim for the new employee at $4350, that is before the 10 per cent increase to the gross weekly wage that is also contained in the log of claims is applied. And for level 14, $5750 which converts to $6325 when 10 per cent increase is claimed. There is a slight difference between the APESMA claim that was considered by Commissioner Bacon and held to be fanciful in that a number of the allowances provided for slightly lower payments, but then another allowance contained in the AMWU claim totals a much higher figure.
PN386
So as has been indicated, you can see in paragraph 44, the industry allowance for level 1 is $400. The industry allowance at clause 4 is $200. The site allowance, disability allowance was $400. The site allowance was for $400, it was $200 - it is $200 in clause 5 of the AMWU log. There is no district area/divisional allowance contained in the AMWU log. However there is a special rates and allowance of $1000. There are extra payments in clause 7 which provides for an all purpose payment of $1000 and there are additional allowances which we have specified in the AMWU claim.
PN387
The respectful submission is that the approach is appropriate. What has then been undertaken by the learned Commissioner was to assess each individual allowances that have been found in the APESMA claim and on an individual assessment held to be fanciful and beyond the scope. What we respectfully submit is that the same approach can be adopted where the Commissioner has found that the corresponding individual allowance that is found both in the APESMA claim and the AMWU claim was fanciful and beyond the scope of ambit that you would be comfortable in drawing a conclusion, a single conclusion and I will be taking you the passages shortly, but significantly the Commissioner came to the view that, "Whether considered individually or collectively the minimum wages and allowances claims were fanciful and not generally being demanded." This is in paragraph 54 of the Airly Coal decision. He held that:
PN388
Rather, the claims were a means to enliven the jurisdiction or the Commission in order that the Commission regulate wages and allowances rather than settle industrial disputes about such matters ...(reads)... to industrial dispute.
PN389
It is our respectful submission the same approach is available and should be adopted by you in assessing the wage and bare allowance claims that have been made in the AMWU claim.
PN390
THE COMMISSIONER: In regards to Schedule B, in those two awards that you're drawing the comparison to, there's no allowances?
PN391
MR BOATSWAIN: There are allowances, Commissioner, but they are allowances in relation to work that is performed or conditions of labour. They are not bare claims.
PN392
THE COMMISSIONER: Okay, so they do have a meal allowance but it's a specific meal allowance.
PN393
MR BOATSWAIN: There is a meal allowance, for example, in the Drafting and Production Planners award which applies in circumstances where the employee is working overtime. I can take you to those situations, but for the purpose of calculating this assessment, we were mindful and took into account the approach that Commissioner Bacon took in identifying those which were all purpose or were bare claims in the sense that they were due and payable for merely turning up and payable to all employees. There are no similar allowances contained in the Drafting and Production Planners and Technical Workers' Award or the Tomago Clerks' Award, if I can use that shorthand.
PN394
If I take you back to paragraph 45 of Commissioner Bacon's decision. There is a situation where the claim in the Airly Coal log was for 5000 as a minimum bonus. There is no corresponding claim in the allowances in the AMWU log currently before you, but there is a special rates and allowance, and that is for an amount of $1000 per week, this is clause 3 of the log, and it's an all purpose special rate. It's our respectful submission that on a similar basis to that demand in the Airly Coal log that it would be considered that that claim is so extravagant and unrealistic that it is inconceivable as to when such a claim might be achieved. As indicated by Table B, there is no corresponding allowance of that amount in the level of wages and conditions currently enjoyed in the industry.
PN395
You will see then in paragraph 46 that the Commissioner expressed the same view that the claims are so extravagant and unrealistic that it is inconceivable when they may be achieved. In relation to the industry allowance, industry allowance was $400. We have an industry allowance at clause 4 of the current log at $200. The site disability allowance is for an amount of $400. In this award there was a site allowance of 200. The Commissioner in paragraph 46:
PN396
Although each of the allowances are characterised in some way, as observed earlier, the fact ...(reads)... is artificial and unrealistic.
PN397
It is our respectful submission that when you analyse and add up the claims that are being found by way of the allowances in those AMWU clauses we have specified, they actually exceed the level of allowances that were made in the Airly Coal log. Each one of the claims indicates that there's an extra payment clause which does not appear in the Airly Coal log, having an amount of $1000. So to the extent that there is a, for example, minimum bonus of $5000, when you actually add up the bare allowance claims that are contained in the relevant clauses of the AMWU log currently before you, they in fact exceed the amount of the allowances claimed in that matter which were held to be fanciful, artificial and unrealistic.
PN398
It is our respectful submission that the same approach would be taken to each of those allowances claimed in the current AMWU log, both on an individual basis and collectively. We also submit that it is highly relevant for the assessment of those claims, both either on an individual or a collective basis, that as indicated in Schedule B, the total wages claim, and in calculating the wages claim we are taking into account the approach that Commissioner Bacon took which we submit is the relevant approach, as totalling them as a total wages bill.
PN399
The result is you have an annual remuneration of just under $250,000 for a new employee. It would appear to be commencing with no or very little skill, being demonstrated in the workforce, and a total per annum claim of $328,900 for the level 14 employee contained in the log. Now, that is comparing it against the Drafting Production Planning and Technical Workers' Award to which the roping in application is made. The total annual wage for the lowest level of that award is $26,343.20, and for the highest level, the level C(1)(b) is $52,733.20.
PN400
It is our respectful submission based on the relevant authorities that had been addressed to you this morning, and on the same approach and on the same authorities as applied by Commissioner Bacon to essentially, we would submit, the same style of claim, that you would - both in consistency - on the basis of consistency and also on the basis of your own assessment of the nature of those claims hold that the, or find that the wages claims contained in the current log are fanciful, are not genuinely being demanded and that they are artificial and unlikely to be achieved in the framework of negotiation, conciliation or arbitration. They therefore do not give rise to an industrial dispute and not form part of an industrial filing.
PN401
So that there is no confusion, Commissioner, each of the allowances that we have referred to in Schedule B comprising of the wages claim we submit is captured by those submissions in that approach and that they all should be struck down for going beyond the ambit of by any claim that is validly before you. Can I then take you to clause 9 of the log of claims. You will note that that is a demand that the employer shall provided transport for all journeys between the employees' usual place of work and residence.
PN402
The duration of all journeys will count as time worked and in addition the employee shall be paid 500 per week to compensate for travelling. It then provides for travelling time outside of ordinary hours shall be paid at treble time, and further demands that where employees are required to attend for duty at a place other than his or her usual place of work, the employer shall pay for first class travel and accommodation for the employee and for the employee's family and pay an allowance of $1500 per week for the period from leaving home to returning home.
PN403
On the aspect of fanciful, can I take you to paragraph 57 of Commissioner Bacon's decision?
PN404
THE COMMISSIONER: 57?
PN405
MR BOATSWAIN: Yes. You will see there that the Commissioner refers to claims 10.3.1 and 10.3.2 which have upheld fanciful. You will see that he goes on to say, "A payment for the duration of travel, because it is to be counted as time worked, is claimed at 10.2." In interpose, that is the nature of the first paragraph to claim 9, demand 9 in the current log, that is the duration of all journeys will count as time worked. The claim for two minimum - - -
PN406
THE COMMISSIONER: Where does it say, on your calculation clause 9 in the AMWU log is treble time, is it?
PN407
MR BOATSWAIN: No. If I can read from clause 9 of the AMWU log. There are three paragraphs.
PN408
THE COMMISSIONER: Yes.
PN409
MR BOATSWAIN: The first one talks of, "the employer shall provide transport for all journeys between the employee's usual place of work and residence."
PN410
THE COMMISSIONER: Yes.
PN411
MR BOATSWAIN: "The duration of all journeys will count as time worked. In addition, the employee shall be paid $500 a week to compensate for travelling." So what we have is a claim that time taken for an employee to come from his home to attend work and to return from work to home will count as time worked.
PN412
THE COMMISSIONER: So that's the argument, that you can't have a claim for travel to and from work?
PN413
MR BOATSWAIN: That counts as time worked, and at paragraph 57 of the Airly Coal decision, if you look at the decision, he refers to clauses 10.3.1 and 10.3.2 are fanciful. A payment for the duration of travel because it is to be counted as time worked, is claimed at 10.2. So we can identify that at 10.2 that is the nature of the claim. He then talks about a claim for a two hour minimum payment for day of travel, and stopping there, we do not have that in clause 9, but what we have is a payment of $500 per week to compensate for attending work, or travelling to work.
PN414
A calculation of an hourly rate based on the figures we've alluded to as to the relevant wages for the log of claims, $500 a week would probably exceed or be comparable to the two hour minimum payment. I haven't done that exercise but I will undertake that.
PN415
THE COMMISSIONER: Well, I'm just asking what the argument is, you see. Is the argument that it's the same as the clause considered by the Commissioner because it's treble time? That's what I said, is that treble time, is it? That's what I asked.
PN416
MR BOATSWAIN: No, there's more to it than that. It's first of all that the element of journeys will count as time worked. The Commissioner, in my respectful submission, has held that that is fanciful. He's also held that the travelling of time outside hours shall be at treble time, which is the second paragraph of clause 9 is unlikely to be achieved. You'll see that there - - -
PN417
THE COMMISSIONER: Yes, no, go ahead, continue.
PN418
MR BOATSWAIN: And to the extent that the claim that was before Commissioner Bacon claimed a two hour minimum payment per day for travel, if you consider that to be fanciful, it's our respectful submission that the claim in the current award - sorry, current log of claims for a payment of $500 to compensate for travelling, which is not a bare claim as we put it, but a claim - sorry. We submit that that is a bare claim because it is a claim as Commissioner Bacon held for merely attending work and is available to all employees. Each of those matters on the same analysis as contained in Commissioner Bacon's decision would be considered to be fanciful.
PN419
THE COMMISSIONER: It seems to be that it's 10.2 that is considered
because - - -
PN420
MR BOATSWAIN: Yes, but 10.2, from reading that paragraph, is a claim for a payment for the duration of travel because it is to be counted as time worked.
PN421
THE COMMISSIONER: Yes, and that's in 10.2, but he doesn't necessarily address that then, because in paragraph 57 it claims 10.3.1 and 10.3.2. So is he just making reference to the fact that in 10.2 there was a claim for the payment of duration?
PN422
MR BOATSWAIN: No, it's my respectful submission that the effect of that paragraph is that the Commissioner is expressing a view that all the claims that he's referred to are unlikely to be achieved in the foreseeable future.
PN423
THE COMMISSIONER: Yes, whenever you're ready.
PN424
MR BOATSWAIN: Commissioner, if I could then take you to clause 17 of the AMWU log of claims. That is an hours of work claim, "All employees shall only be required to work a maximum of 25 hours per week in a formal manner determined by the employees and their union." If I can then take you to clause 58 of the Airly Coal decision.
PN425
THE COMMISSIONER: Paragraph 58, yes.
PN426
MR BOATSWAIN: Paragraph 58. Paragraph 58 refers to claim 23, "Prohibits an employee for working more than 25 hours per week. It also provides that work shall be performed in a manner determined by the employee and a union." Stopping there. That is precisely the terms of clause 17 of the AMWU log of claims. The Commissioner then went on to consider that claim and find that the claim was fanciful and it has all the characteristics of claims which drew adverse comments from the High Court in SBSF and Riordan. "There was no prospect of such a claim as achievable in the foreseeable future."
PN427
Again we would respectfully submit that as a matter of consistency and also the application of relevant principles, a similar conclusion would be made in relation to clause 17, the hours of work, that is contained in the AMWU log of claims. Again, comparing that claim with the reality, the industrial reality of what is available and what the current entitlements are, the Drafting Production Planners and Technical Workers' Award provides for an average 38 hour week for day workers and non continuous shift workers and an average 38 hour week for continuous shift workers inclusive of various meal breaks and rests and the like. As indicated the Clerical and Administrative Employees Tomago Aluminium Co Award provides for a 38 hour week.
PN428
So on either the approach adopted by Commissioner Bacon, the application of the relevant principles that have been addressed this morning and also on the comparison of the industrial reality and the reality of the industrial context, their approach is applied. We respectfully submit that the claim for a 25 hour week in a form and manner determined by the employee and the union is fanciful and is beyond the scope of ambit.
PN429
Can I then take you to clause 18 of the AMWU award, or log of claims, I should say, log of claims, dealing with shift work. You will note that the log of claims before you demands that all employees shall be paid treble time for all shift work performed Monday to Friday inclusive. All employees shall be paid quadruple time for all shift work performed on Saturday, Sunday or a holiday. All employees shall be paid an all purpose minimum of 500 per shift in addition to normal shift rates. Shift work allowance shall be included for all purposes, including a calculation of overtime and there's a reference to shift workers rostered off on a public holiday, shall be paid for such day at the rate they normally would have been paid if at work and received a day's pay.
PN430
This was a clause that was addressed by Commissioner Bacon and if I could refer you to paragraph 59 of Commissioner Bacon's decision. You will see that at paragraph 59 he refers to claim 26.1, requires shift work Monday to Friday to be paid at treble time. I stop there and note that is the claim in the AMWU log. Weekend shift work is to be paid at quadruple time. Again, that is the claim that is before you. These claims are for a shift loading of 200 per cent Monday to Friday and 300 per cent on the weekends. The current award afternoon work and night shift work, loading is 15 per cent and 25 per cent for permanent night.
PN431
The current claim in the AMWU award does not contain - - -
PN432
THE COMMISSIONER: Log.
PN433
MR BOATSWAIN: Sorry, what did I say again? I do apologise. I'm looking at the log, does not contain a shift loading of the nature but has an all purpose minimum $500 per shift in addition to normal rates. Commissioner Bacon, in considering that, makes reference to the increase in current shift loading by approximately 13 times their current value. Makes reference to the fact that the shift penalties have not moved in percentage terms. He then goes on to say:
PN434
Allowing for the ambit of documents it seems extremely unrealistic to expect that the relevant percentages will double in the foreseeable future ...(reads)... a general industrial dispute over allowances.
PN435
We say that those conclusions of Commissioner Bacon apply exactly to the claim 18, the shift work in the AMWU log, the correlation between the treble time for the Monday to Friday and the quadruple time makes it extremely relevant and for the same reasons as we've submitted earlier, that is the consistency, the application of the relevant principles and also the consideration of the rates that currently exist you would be of the view that those claims are fanciful and beyond ambit, therefore do not attract a jurisdictional and cannot form part of a dispute finding.
PN436
If I could take you to clause 24 of AMWU log. 24 refers to annual leave. You will note that the AMWU log seeks an entitlement to 10 weeks' annual leave for each 12 months' service to be taken, at the discretion of the employee. Or that an employee shall be paid an annual leave loading of 25 per cent, or that employees proceeding on annual leave shall receive first class air fares to and from the city of their choice, shift workers shall be entitled to an additional five weeks.
PN437
If I take you to paragraph 60 of Commissioner Bacon's decision. He identifies clause 61, includes a claim for 10 weeks' annual leave for employees other than shift workers who are to be provided with 15 weeks. So again we have the identical claim. Payment of annual leave is to be taken at 325 per cent of the single time rate. That is slightly different to the claim before you.
PN438
THE COMMISSIONER: Well, I don't think there is any demand for that, is there, in the log?
PN439
MR BOATSWAIN: No. Other than the fact that we pay at the highest rate of pay received in the preceding period before going on leave.
PN440
THE COMMISSIONER: Well, I don't think that's - - -
PN441
MR BOATSWAIN: No, I don't make any point. No, there is nothing of that nature.
PN442
THE COMMISSIONER: So it's the 10 weeks.
PN443
MR BOATSWAIN: It's the 10 and 15 weeks. The current annual leave entitlements are five weeks and six weeks for employees who work certain rosters, that is what Commissioner Bacon referred to. The situation under the Drafting Production and Planners is four weeks' annual leave for seven day shift workers and equally for the Clerical and Administrative, 28 consecutive days expressed as four weeks. The seven day shift workers I should indicate for the Drafting and Production are entitled to five weeks. So we have a four week, five week entitlement under the current industrial reality in circumstances where 10 and 15 weeks are being sought.
PN444
Commissioner Bacon in the Airly Coal decision found that the claim is fanciful. The increased quantum and increased payment claims for annual leave are not likely to be achieved in the foreseeable future. As I've indicated, we do not have the quantum aspect, but I respectfully submit that the finding in relation to the quantum of leave which is subject to the claim, which corresponds precisely with the quantum that is claimed in the AMWU log is applicable and consistent. He goes on to say that the claim for annual leave benefits, in addition to the foregoing, are equally fanciful as are the - and I don't read on because he's talking about the other payments.
PN445
So again we have an identical claim for quantum of leave. The situation is that there is a finding by Commissioner Bacon that they are fanciful. We respectfully submit that consistent with the principles that they have been established and also applying or having regard to the industrial reality as to current entitlements, it would be an escapable inference that would be drawn would be that the claims made in the AMWU log are beyond ambit and cannot give rise to a log of claims. We also suggest that the claim that employees shall receive first class air fares to and from the city of their choice will also be regarded as fanciful.
PN446
I will come back to that. I have a recollection that the Commissioner, at a later paragraph, makes a reference to the first class air fare travel, but I'll come back to that. So again, Commissioner, when you take into account the nature of that claim, requirement principles and relevant authority and comparing it with what is paid currently under the award there would - finally it would be fanciful. Can I then take you to clause 28 of the AMWU log, which is a claim for maternity/paternity or adoption leave. This is a claim seeking paid leave for an absence of up to 24 months on each occasion of the birth of a child of the employee or the adopting or fostering of a child.
PN447
In addition to that there is entitlement to further leave without pay at the request of the employee and that all leave under this clause shall count as service award purposes. If I can take you to paragraph 66 of the decision of Commissioner Bacon in Airly Coal. At paragraph 66 the Commissioner states, "Claim 41 includes a claim for up to 24 months of paid maternity leave." Again, the precise quantum of leave sought by the AMWU log.
PN448
This claim is at the margin of extravagance. A combination of paid and unpaid maternity leave of more than 12 months' duration is likely to be achieved in the foreseeable future. ...(reads)... that this claim is fanciful.
PN449
Again, we would rely on the finding of Commissioner Bacon in relation to an identical claim. Certainly on the application of the principles before you and what is available in the work place and future industry standard, that paid leave of 24 months on each occasion is beyond the scope of the ambit doctrine. But he goes a little bit further than that, in our respectful submission. The fact that all leave under this clause shall count as service for all employees. It is our respectful submission that to provide for up to 24 months' paid leave during a period of parental leave and to treat that as time counting as service or purposes is beyond ambit and is unlikely to be approved in the foreseeable future and for that reason that clause would be held to be beyond ambit.
PN450
It's our respectful submission that those elements could not be severed from the clause to give it any currency or any currency in the balance of the clause as set out and therefore the submission is that all of clause 28 in the AMWU log would be considered to be beyond ambit, and it would be struck down. Can I take you to clause 30 of the AMWU log. That is a demand dealing with compassionate leave. The claim of the union provides that:
PN451
Employees shall be entitled to 60 days' leave without loss of pay. During each year of service, such leave is to be granted by the employer being notified of death or serious injury, whether inside or outside of Australia, of a relative including a de facto spouse and his/her children of an employee. The employer shall reimburse the employee for all travel expenses and accommodation costs associated with taking such leave.
PN452
If I can refer you to paragraph 67 of the decision of Commissioner Bacon in Airly Coal. That paragraph refers to claim 43, demands 60 days' paid leave on the sickness, serious injury or death of a relative or friend. "The employer is to reimburse the employee for all travel, expenses and accommodation costs associated with taking compassionate leave." So again there is no doubt that what we are looking at is a compassionate leave clause in precisely the same terms as contained in the log of claims currently before you. Commissioner Bacon went on to say the claim is fanciful, it is over the top and cannot give rise to industrial dispute.
PN453
Again we would respectfully submit that that finding is, on the grounds of consistency, should be applied to the maternity/paternity adoption leave claim in claims 28 of the AMWU log either by or on the grounds of consistency or applying the relevant principles or by reference to the industrial reality as to the current entitlements. In that regard, Commissioner, we refer you to Schedule B, the Drafting Production Planners and Technical Award. The industrial reality as to the current entitlements. In that regard, Commissioner, we refer you to Schedule B. The Drafting Production Planners and Technical Workers' Award provides for personal leave of 54 hours or seven days' personal leave where less than 12 months' service or 70.6 hours, that is 10 days' personal leave, where more than 12 months' service. The award contains a provision that 16 hours of personal leave or bereavement leave is available to the employee.
PN454
We submit that an entitlement of 60 days in circumstances where the current entitlement of 16 hours' use of personal leave demonstrates beyond any doubt that the claim contained in the AMWU log is beyond the scope of ambit and to borrow the words of Commissioner Bacon, are fanciful, over the top and cannot give rise to industrial dispute. Can I take you to clause 32 of the AMWU log of claims. That is a claim that is headed Special Leave. It provides that, "All employees shall be granted paid leave of 60 days per year for private purposes."
PN455
THE COMMISSIONER: I'm sorry, what clause?
PN456
MR BOATSWAIN: 32.
PN457
THE COMMISSIONER: Yes.
PN458
MR BOATSWAIN: Special Leave, "All employees shall be granted paid leave of 60 days per year for private purposes." If I can take you to paragraph 68 of the decision of Commissioner Bacon. At paragraph of the decision of Commissioner Bacon, it says, clause 45 is for 30 days or six weeks of special paid leave for private purposes. So the difference between the two logs, Commissioner, is that the AMWU log is twice the entitlement that was the subject of the claim for consideration before Commissioner Bacon. Commissioner Bacon proceeded: "The claim is fanciful." He does go on to make some other comments that are relevant, but I'll come back to that in a moment, Commissioner.
PN459
But in any event, in relation to the claim for Special Leave, and I might remind you that this is in addition to any annual leave of 10/15 weeks that has already been claimed on the basis of the finding that a claim for half of that time, 30 days, is fanciful. We would submit that applying the relevant principles in your assessment independent of any finding by Commissioner Bacon to a similar clause, would lead you to the inescapable conclusion that the claim is fanciful, over the top and unable to be achieved within a framework of negotiation, conciliation and arbitration in due course.
PN460
Equally, when you have regard to the industrial context of what is currently being paid by or is currently the entitlement of workers in the relevant industry, there is no provision of that nature at all contained either in the Drafting Production Planners and Technical Workers' Award 1998 or in the Clerical and Administrative Employees' Award. Can I take you then to claim 34 in the AMWU log and that is a claim, a demand that is titled Conciliation and Arbitration Leave which is the following terms,
PN461
An employee shall be granted paid leave to attend proceedings under Federal or State Industrial Relations legislation and to assist in the research and preparation of material that may be required under ...(reads)... should they have been at work.
PN462
I take you back to paragraph 68 of the decision of Commissioner Bacon. The first sentence, I've already addressed, relates to the demand for private purposes that was contained in the log under consideration by Commissioner Bacon. He then continues at the end of the first line, "As is the claim (72.4.1) for 20 days' paid leave per year to attend meetings, including stop work meetings."
PN463
THE COMMISSIONER: At clause 34 in the AMWU log, it's just talking about the grant of leave. It's not an actual figure, is it? It doesn't say 20 days or 30 days?
PN464
MR BOATSWAIN: It's unlimited.
PN465
THE COMMISSIONER: Sorry?
PN466
MR BOATSWAIN: It's unlimited. Potentially it is more than 20 days. There is no restriction on it.
PN467
THE COMMISSIONER: So that's the complaint?
PN468
MR BOATSWAIN: The complaint is - the clause itself which is, we say, analogous to the claim that was considered by Commissioner Bacon, but once more the actual claim contained in this log exceeds that.
PN469
THE COMMISSIONER: Well, isn't it - I don't know what the terminology of his clause was before him in 72.4.1. This is on the basis, we're discussing this on the basis that I accept your argument that I should have regard to Commissioner's decision.
PN470
MR BOATSWAIN: Yes.
PN471
THE COMMISSIONER: But leaving that aside for the moment, it would appear that 72.4.1 before the Commissioner was for 20 days' paid leave per year to attend meetings including stop work meetings.
PN472
MR BOATSWAIN: Correct.
PN473
THE COMMISSIONER: It doesn't say anything about conciliation/arbitration leave. Is it the same clause, is it, or for a different purpose, would it be?
PN474
MR BOATSWAIN: No. Other than the fact to - - -
PN475
THE COMMISSIONER: I mean, how many conciliation/arbitration leave days would you require? I really don't know, but I suppose your argument is well, it's just unlimited.
PN476
MR BOATSWAIN: It's unlimited and it goes further. It's just not to attend to the proceedings, Commissioner. The second aspect of the first claim - - -
PN477
THE COMMISSIONER: Yes, to research and preparation of material. No, I read that, yes.
PN478
MR BOATSWAIN: Yes, and it's our submission that it's an analogous demand and the fact is, it's a paid - - -
PN479
THE COMMISSIONER: So you're saying clause 47 before Commissioner was for study leave, which was unlimited?
PN480
MR BOATSWAIN: Well, no. We say the second sentence of paragraph 68 refers to a claim 72.4.1 to attend meetings including stop work meetings. We say that where we have an analogous situation where a demand is being made in this matter to attend proceedings under Federal and State Industrial Relations legislation, and to assist in the research and preparation of material that may be required, it's union business. It's a claim for unlimited leave to attend and assist in the preparation of or address union business, and we say that that is analogous to the claim that was held to be fanciful, because by Commissioner Bacon in paragraph 68, on the basis that "attend meetings including stop work meetings", we say that the same purpose is achieved by claim at 34.
PN481
In any event, on the application of the principles that have been referred to, that a claim of that nature for unlimited paid leave to attend proceedings under Federal and State Industrial Relations meeting and to assist in research and preparation of material, is beyond the ambit, the scope of ambit and is fanciful and unlikely to be attained within the framework of conciliation of negotiations, conciliation and arbitration in due course and for those reasons should be rejected.
PN482
THE COMMISSIONER: Yes, please, whenever you're ready.
PN483
MR BOATSWAIN: Thank you, Commissioner. I was just going to suggest that, noting the time - - -
PN484
THE COMMISSIONER: Is this an appropriate time?
PN485
MR BOATSWAIN: It would be appropriate.
PN486
THE COMMISSIONER: Yes, all right then. I will advise you that I have a matter listed at 3 which shouldn't take too long and I plan to rise today at 4.30. So we'll break for lunch and then we'll come back and then I will adjourn for a few minutes at 3 to address one matter, and then we'll continue on and we will rise at 4.30. So in the break it might be appropriate that you discuss an appropriate date for a re-listing. The parties should discuss that, and if it's appropriate for the Commission, then we'll look at another day.
PN487
MR BOATSWAIN: Can you just indicate what range of your diary we will be looking at?
PN488
THE COMMISSIONER: I haven't even looked at it, Mr Boatswain, I haven't even looked at it. It won't be next week, I can assure you. Mr Boyce, you're wanting to - - -
PN489
MR BOYCE: Commissioner, I might just indicate I understand the matter to be going the full day, I have a matter at 3 that I need to attend. I am happy to either put my submissions after lunch or come back on the following day.
PN490
THE COMMISSIONER: I don't think we'll even get to you today, Mr Boyce.
PN491
MR BOYCE: Yes.
PN492
THE COMMISSIONER: You're asking to be excused?
PN493
MR BOYCE: Yes, Commissioner.
PN494
THE COMMISSIONER: I don't have an issue with that at all. But you will have - you will receive a notice of the listing for the next day, but I mean if you have a problem with any of the dates to be set, you might have a talk to Mr Boatswain and Ms Booth and as much as possible I'll attempt to accommodate the parties' preferences, but you must understand I can't always do that. So whenever you're ready to leave, Mr Boyce, please feel free.
PN495
MR BOYCE: Thank you.
PN496
THE COMMISSIONER: Nothing else until I adjourn? All right, then, the Commission stands adjourned till ten past two, thank you.
<LUNCHEON ADJOURNMENT [12.55PM]
<RESUMED [2.15PM]
PN497
THE COMMISSIONER: Yes, Mr Boatswain, whenever you're ready.
PN498
MR BOATSWAIN: Would it be an appropriate time to just consider the further listing of the matter before I recommence my submissions, Commissioner?
PN499
THE COMMISSIONER: Yes, what dates did you - - -
PN500
MR BOATSWAIN: Well, we gathered common dates in the diary going forward, Commissioner. It seems Mr Boyce only has 15 July available in that week. The following week there seems to be the days of 18, 19 and 20 are common between the parties.
PN501
THE COMMISSIONER: Will the case finish in one day?
PN502
MR BOATSWAIN: It might be abundantly cautious to list two days, Commissioner. I would have hoped to finish in a single day.
PN503
THE COMMISSIONER: Well, in that week, my days are the Thursday and the Friday, 21 and 22, or I can do half a days on Tuesday or Wednesday. We can start on Wednesday afternoon and continue in to Thursday, 21.
PN504
MR BOATSWAIN: The difficult, Commissioner, is Mr Boyce only has 18, 19, 20 of that week available.
PN505
THE COMMISSIONER: Well, we could hear his submissions then on the 20th, I suppose, couldn't we?
PN506
MR BOATSWAIN: Yes. Whichever of those configurations is convenient, Ms Booth is available from the 18th to the 22nd, as am I, so.
PN507
THE COMMISSIONER: Sorry?
PN508
MR BOATSWAIN: I said Ms Booth and I are available between 18 and 22 July so that any of those configurations that we were talking about, your Honour, in relation to - I don't have days or dates, so 18, 19 and 20 is Mr Boyce's availability. If you were proposing this, were you, on 20 and 21, were you?
PN509
THE COMMISSIONER: On Wednesday, the afternoon at 2 o'clock, and then reconvening on Thursday at 10, 21 and 22.
PN510
MR BOATSWAIN: Thank you.
PN511
THE COMMISSIONER: Yes, whenever you're ready, Mr Boatswain?
PN512
MR BOATSWAIN: Commencing back with Schedule A, Commissioner, can I take you to clause 35 of the AMWU log of claims. That is the study and training leave clause.
PN513
THE COMMISSIONER: Yes.
PN514
MR BOATSWAIN: You will see that the claim contained in the log is:
PN515
All employees shall be granted unlimited paid training and study leave including trade union leave to attend any training or study course approved ...(reads)... in addition to all other payments.
PN516
If I could take you to paragraph 68 of the Airly Coal decision.
PN517
THE COMMISSIONER: Yes.
PN518
MR BOATSWAIN: You will see there that the second line at the end talks of claim 47, "For unlimited paid study leave to attend any course associated with the employee's profession." The Commissioner in that matter held such a clause or such a claim to be fanciful. It's our respectful submission that the study and training leave clause that is contained in the AMWU log of claims providing for unlimited paid training and study leave, including trade union leave, is of an analogous claim to that which was addressed by Commissioner Bacon and found to be fanciful. On the same basis we would respectfully submit that the study and training leave provision in its unlimited nature is one that applying the appropriate principles would be considered to be beyond the scope of ambit.
PN519
That would be particularly in the case where a minimum $100 per day in addition to all other payments, together with all costs associated with such training or study, including the cost of travel and accommodation fees, books and materials are added to that claim. They are in circumstances where, unlike the claim that was considered by Commissioner Bacon where it was pointed to be associated with the employee's profession, this study and training leave is not so restricted and includes matters involving courses approved by the union and employees.
PN520
It is our respectful submission based on the relevant principles that we have outlined relating to the framework for which claims are attained by negotiation, conciliation and arbitration that this claim would be considered to be fanciful and incapable of giving rise to industrial dispute. In relation to the industrial context in which this claim was advanced, it is our respectful submission that we have not identified any single clause of that nature within the relevant drafting award.
PN521
If I could then take you to clause 41 of the AMWU log of claims. This is a claim of reinstatement, Commissioner. The claim provides that:
PN522
The employer shall not dismiss any employees (whether or not such dismissal takes place before the making of any award or agreement made in settlement of the log of claims); further, the employer shall reinstatement forthwith any employee dismissed ...(reads)... lost as a result of the dismissal.
PN523
If I refer you to paragraph 69 of Commissioner Bacon's decision in Airly Coal. In paragraph 69 of Commissioner Bacon's decision he refers to claim 60.1 which removes from the employer the right under any circumstances to terminate employees' employment. I do not intend to make light of the claim that the observations generally made, it is not my expectation that the coal mining employers would give up their right to terminate employment during my lifetime. Nor do I think it is likely, Commissioner, in the foreseeable future to remove from employers such a fundamental right. The claim is unrealistic and fanciful.
PN524
It is our respectful submission on the rationale and the basis of that finding that it would be equally likely that you would conclude that it is unlikely that the employers who are the respondents to this application would give up the right to dismiss an employee. Equally it would be in the application principles and authorities that the claim that the employer would reinstate forthwith any employee who has been dismissed during the time of the operation of this business and being repaid any wages lost as a result of dismissal would clearly be considered to be beyond the scope of ambit and is to be unrealistic and unlikely to be achieved through the parameter of negotiation, conciliation and arbitration.
PN525
It is our respectful submission that on that assessment alone you would determine that the clause 41 is beyond the scope of any ambit claim and it could not give rise to a finding of dispute. I should indicate that the Drafting Production Planners and Technical Workers' Award does contain a right of termination. Could I then take you to clause 42 of the AMWU log of claims. That is a clause relating to redundancy and retrenchment. The first numbered paragraphs are 42.1 of the demand, provides that:
PN526
At least two years before any decision about redundancy and retrenchment is taken ...(reads)... the decision to be taken.
PN527
Paragraph 2 talks about, "The consultation referred to shall include examination of measures to minimise or avoid terminations." Clause 3 then provides that:
PN528
Where termination of employment, due to redundancy on the part of an employer shall determine, together with the employee or the union...(reads)... terminated due to redundancy.
PN529
It then proceeds, it says number 5, although the previous claim was 4, but:
PN530
Where employees are transferred to other duties due to redundancy an employer shall provide income maintenance payments ...(reads)... where appropriate.
PN531
And 6:
PN532
An employee shall be entitled to the above ...(reads)... given by the employer.
PN533
Can I take you to paragraph 73 of the decision of Commissioner Bacon. You will note that paragraph 73 refers to claim 69 which demands, among other things, that upon redundancy employees are entitled to payment based on 20 weeks' pay per year of service. That is the entitlement that is claimed in the second bullet point of 42.3, Business Leave. The Commissioner proceeded to state:
PN534
The current standard is three weeks per year of service. The claim demands any increase in the current redundancy payment by seven times. ...(reads)... it is fanciful.
PN535
It is our respectful submission that the same finding in relation to that element of the demand would be available and would be one that you would make with confidence. We first of all note the similarity of the entitlement to 20 weeks' pay for each year of service in the two. In any respect, a claim of 20 weeks' pay for each year of service is clearly beyond the scope of the ambit doctrine, is something that would not be achievable by a framework of negotiation, conciliation and arbitration and therefore cannot give rise to industrial dispute.
PN536
THE COMMISSIONER: Just before you move on, Mr Boatswain, I'll just take you back to clause 34 of the log which your argument I think was that it constitutes unlimited leave.
PN537
MR BOATSWAIN: Yes.
PN538
THE COMMISSIONER: In that regard you took me to paragraph 68 of Commissioner Bacon's decision in regards to unlimited study leave. How does the Commissioner's analysis that the APESMA claim at 72.1, which is found at paragraph 74 of the Commissioner's decision sit with the argument you gave me in regards to clause 34 of the AMWU log?
PN539
MR BOATSWAIN: I'm sorry, the argument about what? 72?
PN540
THE COMMISSIONER: That's the claim, the APESMA claim that Commissioner Bacon was looking at.
PN541
MR BOATSWAIN: You will recall that when we first addressed paragraph 68 of Commissioner Bacon's decision and in relation to claim 34 of the log, you will recall that I actually made the point that there seemed to be a number of elements of the claim where they talk about claim 45 is for 30 days or six weeks to special paid leave for private purposes.
PN542
THE COMMISSIONER: The APESMA claim?
PN543
MR BOATSWAIN: Yes, the APESMA claim. Then the second sentence of paragraph 68 refers to, as is the claim 72.4.1 for 20 days' paid leave per year to attend meetings including stop work meetings. And then claim - - -
PN544
THE COMMISSIONER: Where are you now, sorry?
PN545
MR BOATSWAIN: I'm sorry. Paragraph 68 of Commissioner Bacon's decision.
PN546
THE COMMISSIONER: Yes, yes, I have that.
PN547
MR BOATSWAIN: And in that there are three - there are effectively three claims addressed in the one paragraph.
PN548
THE COMMISSIONER: Yes.
PN549
MR BOATSWAIN: And essentially we say that the AMWU log comprising clause 34 and clause 35 is analogous to and represents the various claims or the three claims for leave that is addressed in paragraph 68 of Commissioner Bacon's, where we have the, first of all, six weeks, Special Paid Leave for Private Purposes, that's been addressed and we've dealt with that before. We then deal with 72.4.1 which is the 20 days' paid leave per year to attend meetings and stop work meetings, and I indicated that that was some of the issues that relate to the conciliation and arbitration leave.
PN550
THE COMMISSIONER: Well, that's what you say, yes.
PN551
MR BOATSWAIN: That's our submission, and equally, in relation to the study and training leave, there is an additional period of unlimited paid training and study leave including trade union training leave to attend any training or study course approved by union employees, and it goes on. We say that that - - -
PN552
THE COMMISSIONER: Where's trade union training leave, I'm sorry?
PN553
MR BOATSWAIN: Clause 35 of - - -
PN554
THE COMMISSIONER: That's study and training leave?
PN555
MR BOATSWAIN: Yes, and it talks of - - -
PN556
THE COMMISSIONER: Well, you're saying any training or study course approved by the union, but where does it - yes, including trade union training, yes, I see that now in 35. Yes, okay, so go on, where are we now?
PN557
MR BOATSWAIN: In respect of your question we say that the consideration of the leave that is contained within clauses 34 and 35 in the log of claim fall within the consideration and the conclusions drawn by Commissioner Bacon in relation to the analogous claims for leave that were considered by him in paragraph 68.
PN558
THE COMMISSIONER: Yes, and your argument to me on claim 34 was the unlimited basis.
PN559
MR BOATSWAIN: Correct.
PN560
THE COMMISSIONER: The unlimited, and now I'm saying to you, how does that sit with Commissioner Bacon's determination in relation to the claim before him which was 72.1 found at 74 of his decision in regards to union representation entitled to unlimited time and facilities to perform all duties related to that position, and the Commissioner clearly says, "In the Commission's view the claim is extravagant but it is not fanciful." That's what I'm putting to you. I don't want you to go over your submissions. I just ask you how does that determination of the Commissioner sit with your submission to me in relation to a claim by the AMWU at 34 for conciliation, arbitration leave?
PN561
MR BOATSWAIN: My apologies. I misheard you when you were referring to paragraph 74 so I haven't addressed myself to that in my answers, I apologise.
PN562
THE COMMISSIONER: I'll give you a moment to read it.
PN563
MR BOATSWAIN: Thank you. There's one differentiation, is that clause 74 deals with authorised union representatives. The study and training leave in clause 35 of the AMWU refers to all employees shall be - - -
PN564
THE COMMISSIONER: No, not the study and training. Claim 34, conciliation/arbitration leave. What would be the purpose of conciliation/arbitration leave?
PN565
MR BOATSWAIN: Again, just reading this, the clause that was considered - the claim that was considered at 72.1 was for an authorised union representative.
PN566
THE COMMISSIONER: Unlimited time.
PN567
MR BOATSWAIN: Correct, and we have said it is unlimited - the difference with clause 34 of the AMWU log is that unlimited time is granted to any employee, not one who is an authorised union representative. In other words, I would not be making the submission that if the - - -
PN568
THE COMMISSIONER: Well, you said to me the complaint was it was unlimited.
PN569
MR BOATSWAIN: Unlimited and also for all employees.
PN570
THE COMMISSIONER: Well, you didn't say that earlier, but that's what you're saying now, claim 34 is unlimited but it's also associated to all employees?
PN571
MR BOATSWAIN: Yes.
PN572
THE COMMISSIONER: Yes, thank you.
PN573
MR BOATSWAIN: Returning to claim 42 of the AMWU claim, the redundancy and retrenchment, you will recall that we were talking on - first of all the aspect of the finding that 20 weeks' pay for each year of service was fanciful. There are other elements to the claim as contained in the AMWU log which we say takes the matter further and render the claim even more beyond the scope of the ambit document. Fundamentally the first bullet point where there would be a payment of at least two years' notice of termination - I withdraw that.
PN574
There was entitlement to be provided with at least two years' notice of termination or payment in lieu thereof, coupled with the entitlement in 42.6 for an employee to receive the abovementioned benefits and payments in full, notwithstanding employee leaves their employment during the period of notice, we say clearly is fanciful within the context of the submissions that have been made as to the relevant principles that would be applied. It is not something that would be attainable in the framework of negotiation, conciliation and arbitration.
PN575
We respectfully submit that if you look at the redundancy entitlements as a package contained in 42.3(c), the two years' notice, the 20 weeks' pay for each year of service, the income maintenance payments, all relocations likely to be incurred by an employee when considered as a whole or individually as the subject interest or the total entitlements for redundancy, we say that they are clearly beyond the cope of any ambit and would not be achievable through the framework of negotiation, conciliation and arbitration.
PN576
It would appear from reading Commissioner Bacon's decision the sufficient basis in regard the matter as fanciful was simply the requirement of 20 weeks' redundancy pay for each year of service. At 2.18 of the following the outline of submissions, Commissioner, there is an extract of McHugh J from the decision of SBSF ex parte Attorney General of Western Australia providing the basis of the concept that a bare claim to attract the regulatory function of the Commission would be beyond power. As he states there:
PN577
If demand is so extravagant that it cannot be reasonably understood to provide the changes in terms and conditions of employment ...(reads)... does not really want what it demands.
PN578
His Honour then continues on to say:
PN579
If other circumstances indicate the organisation serving the log is nonetheless seeking to improve the terms and conditions of its members the proper conclusion may be ...(reads)... in respect of those terms and conditions.
PN580
That seems to be the situation in the present case. He then continued:
PN581
Even allowing the ambit document full operation so as to facilitate variations of the award in the future ...(reads)... can create a dispute for the purpose of the Act.
PN582
As indicated in 2.19 of the submission, it is our respectful submission that this is the precise situation that exists in this application. Support for its conclusion arises from the terms of the log. The fact that the log is effectively identical to the terms of the log that was considered by Commissioner Bacon in which he considered that it was unsuccessful and wholly invalid and also, we suggest, in the inferences available from the manner of authorisation of the demand in the log of claims in this application.
PN583
In 2.20 of the outline of submissions we refer to the authorisation of the demand in the log of claims given by electronic ballot of the National Council of the AMWU and the relevant documents for that have been attached to the outline of submissions on behalf of the AMWU. The request for authorisation of the service of the log of claims clearly demonstrates that what was sought was the making of the award by the Commission performing the functions of the general regulatory body.
PN584
You would be open to make this inescapable conclusion from the consideration of the request of service of the log of claims to the National Secretary dated 8 April 2005 and from the internal memorandum from the National Secretary dated 21 April 2005 purportedly endorsing the service of letter of demand of log of claims.
PN585
THE COMMISSIONER: So it's a conclusion that your submission draws, Mr Boatswain?
PN586
MR BOATSWAIN: Yes, and we invite you to draw that conclusion. It's on the basis that, particularly in the context of the extract from McHugh J in 2.18 of Tomago1, the outline of submissions, that what has occurred has been a request to issue a standard pro forma log of claims in almost identical terms to the claims used unsuccessfully by another organisation, without any reference to or apparent consideration of the relevant terms and conditions of employment of the employees proposed to be subject of the log of claims. Essentially what has happened is administrative act.
PN587
THE COMMISSIONER: My apologies, Mr Boatswain. Please continue.
PN588
MR BOATSWAIN: It's relevant there is no scope clause or any attempt to define any industry or classification of employees the subject of the claims contained in the log of claims. It is our respectful submission that the inescapable conclusion that you would draw from the nature and circumstances of the issue of the log of claims and the letter of demand is that what was contemplated by the notifier was an act that would be sufficient to rely on the Commission's jurisdiction in the context referred to or rejected by McHugh J in the above extract.
PN589
I make it clear we are not contesting that the authorisation or the electronic ballot that was conducted and the issuing of the memorandum were not capable of being undertaken by the Rules of Organisation. We however suggest that an analysis of the process which was applied, and a proper analysis of the content of the log of claims, which we are still examining, clearly establishes that there was no attempt at all to tailor the log of claims that has been served with the industry or the regular employees or the employers who are going to be the subject of the claim.
PN590
It was merely a standard process, pro forma exercise to attract the jurisdiction of this Commission so that it could make a decision in relation to wages and conditions that we considered to be fit and appropriate for the circumstances of the employment and the fact that the log of claims which has been served and has demonstrated in Schedule B bears no resemblance of the reality of the industrial context of the employees that have been sought to be roped into the Draft and Production Planners and Technical Workers' Award.
PN591
We would support the drawing of that inference and the conclusion by you that what is in fact before you is an administrative exercise by the union in an attempt to simply enliven your jurisdiction without satisfying the jurisdictional requirements and the standards established by the High Court and adopted and applied by this Commission. As indicated in paragraph 2.22 of the outline, Commissioner, we have prepared a table of objections to the clauses contained in the log of claims at Schedule C. What I was proposing to do, Commissioner, is to take you to them now. I don't know - I remember you mentioned ten to 3.
PN592
THE COMMISSIONER: No, 3, I think it's 3 o'clock.
PN593
MR BOATSWAIN: My apologies, I thought you said ten to 3. Obviously if I could draw your attention to Schedule C of the outline. Now, a number of the clauses that are listed in the schedule have already been addressed by reference to Schedule A on the basis of the finding that they were fanciful in the context of the decision of Airly Coal, so obviously it's not proposed to repeat those submissions. For example, the first field in Schedule C dealing with clauses 1, 3, 4 through to 37 dealing with minimum weekly wage special rates and allowance are the matters that have been addressed in the submissions so far.
PN594
As to the next clause, which is clause 9, Travelling Fares and Board, and you will recall that they were the matters that were addressed in paragraph 57 of the - - -
PN595
THE COMMISSIONER: I'm sorry, Mr Boatswain, say that to me again, clause 9, or claim 9?
PN596
MR BOATSWAIN: Clause 9, you will see the second field says, clause 9, Travelling Fares and Board?
PN597
THE COMMISSIONER: Yes.
PN598
MR BOATSWAIN: And a reasonable objection is fanciful. That clause 9, it was in relation to paragraph 57 of the Airly Coal decision, that was a matter that I have addressed you on in relation to - - -
PN599
THE COMMISSIONER: No, wait a minute. 59, Commissioner Bacon - you're not referring to the Action Food Barns then? You're relying on Commissioner Bacon?
PN600
MR BOATSWAIN: Yes.
PN601
THE COMMISSIONER: At what paragraph?
PN602
MR BOATSWAIN: At 57, but we also say as we did, Commissioner, remembering that the Action Food Barns is the Riordan decision and we're relying on - - -
PN603
THE COMMISSIONER: Yes, but what I said to you earlier, I don't know whereabouts in that decision.
PN604
MR BOATSWAIN: I see.
PN605
THE COMMISSIONER: You see, you're giving me an authority, you're saying to me, look, this is the reason we object, clause 9, Travelling Fares and Board. Now, you've been through what you say is exaggerated or fanciful, not genuine and what-have-you, you've just taken me through that. But why do you rely upon that particular decision? What's in that decision that you say to me convinced me that - this particular one is objectionable clauses, so it goes to all your grounds, your contrary to law or what-have-you. So whereabouts do you say that - how should I read that? Am I going to read the whole decision? Is it the whole decision, is it paragraphs of it, or what is it?
PN606
MR BOATSWAIN: Well, Commissioner, we're addressing the ground of complaint and fanciful and I had laid the foundation by earlier in my submissions addressing the relevant passages from Riordan and SBSF.
PN607
THE COMMISSIONER: Right, so what you're saying is it's not a specific reference?
PN608
MR BOATSWAIN: No.
PN609
THE COMMISSIONER: In Schedule C it is not a specific reference?
PN610
MR BOATSWAIN: No.
PN611
THE COMMISSIONER: All right. That's what I just wanted to know. Where you've relied upon it you've outlined it in the major part of your written submission or outline of submission?
PN612
MR BOATSWAIN: Yes.
PN613
THE COMMISSIONER: There's nothing further, nothing else?
PN614
MR BOATSWAIN: No.
PN615
THE COMMISSIONER: Thank you.
PN616
MR BOATSWAIN: Apart from the comments I've already made in this particular clause when I was addressing it in relation to Schedule A, I've taken you through that.
PN617
THE COMMISSIONER: Yes.
PN618
MR BOATSWAIN: Correct.
PN619
THE COMMISSIONER: All right, and the same with Commissioner Bacon's decision?
PN620
MR BOATSWAIN: Yes. Where I've - the difference here is where we will address clauses where objection is taken to, in relation to Commissioner Bacon that I may not have addressed or there is any specific issue there, I will cross-reference and address that.
PN621
THE COMMISSIONER: All right then. If you don't do that, then I just take it as general and I don't have regard to it necessarily except as in what the verbal submissions are and what's contained in the previous paragraphs or previous sections of this written submission?
PN622
MR BOATSWAIN: That is correct, Commissioner.
PN623
THE COMMISSIONER: Thank you.
PN624
MR BOATSWAIN: And on the basis that we have already outlined the, what we say is the relevant principles and authorities to establishing what is the appropriate test for assessing whether a claim is fanciful and beyond ambit.
PN625
THE COMMISSIONER: Okay.
PN626
MR BOATSWAIN: And so rather than repeating those authorities in relation to every ground or there are objections taken to every claim, we're simply nominating that the identification that we did in General Purposes at the outset of our submissions in relation to this fanciful claims, applies to each of the grounds where we have nominated that authority.
PN627
THE COMMISSIONER: All right. Now in your written submission you've not made reference to Electrolux?
PN628
MR BOATSWAIN: We have made reference to Electrolux.
PN629
THE COMMISSIONER: In the written submission?
PN630
MR BOATSWAIN: In the outline of submissions.
PN631
THE COMMISSIONER: Sorry, in the outline of submissions?
PN632
MR BOATSWAIN: Not precisely. We have made a reference to matter pertaining.
PN633
THE COMMISSIONER: No, no, no. Is there a reference to Electrolux in the written outline of submissions, because if there isn't, the next thing I will say to you is, okay, if there isn't, whereabouts in Electrolux do I go to ascertain what the High Court said in regards to Travelling Fares and Board, as that matter pertains? Because you see what I'm saying to you? I don't have a reference. Unless you've got a reference at the beginning of your written outline of submissions.
PN634
MR BOATSWAIN: What I was proposing to do in relation to Schedule C is at the moment I'm just addressing the ground of fanciful. I would then - - -
PN635
THE COMMISSIONER: When you get to pertaining, you're going to take me to the exact reference of the High Court in Electrolux?
PN636
MR BOATSWAIN: Yes, that's - - -
PN637
THE COMMISSIONER: Thank you. That's all I wanted to know.
PN638
MR BOATSWAIN: Thank you.
PN639
THE COMMISSIONER: That was my question. Whenever it's convenient for you to - be it before 3 or after 3, Mr Boatswain, whenever it's convenient for you.
PN640
MR BOATSWAIN: I would appreciate, it would be convenient at the moment to have a break at this moment.
PN641
THE COMMISSIONER: Yes, all right then, we'll adjourn and this matter shouldn't take too long and we'll reconvene this matter when I've finished my other matter. My associate will let you know, but we shouldn't be too long on that matter, thank you.
<SHORT ADJOURNMENT [2.55PM]
<RESUMED [3.14PM]
PN642
THE COMMISSIONER: Mr Boatswain, my associate advises me that you seek to put an application before me?
PN643
MR BOATSWAIN: Yes, I apologise, Commissioner. I'm just feeling a bit unwell prior to but definitely since lunch. I do not believe I'm well enough to continue. I'd like if possible to adjourn the matter now.
PN644
THE COMMISSIONER: Well, I was going to adjourn at 4 o'clock, so it's a matter of 45 minutes earlier. We'll adjourn the matter and I think we've agreed we'll adjourn the matter till 2 o'clock on Wednesday, 20 July and if required we'll continue the matter on Thursday, 21 July.
PN645
MR BOATSWAIN: Thank you.
PN646
THE COMMISSIONER: The Commission stands adjourned.
<ADJOURNED UNTIL WEDNESDAY 20 JULY 2005 [3.15PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
EXHIBIT #TOMAGO1 AMENDED OUTLINE OF SUBMISSIONS AS AMENDED FILED 07/06/2005 PN151
EXHIBIT #TOMAGO2 DRAFT PRODUCTION PLANS TECHNICAL WORKERS' AWARD 1998 PN152
EXHIBIT #TOMAGO3 CLERICAL AND ADMINISTRATIVE EMPLOYEES' TOMAGO ALUMINIUM CO PTY LIMITED AWARD 2000 PN153
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