C2005/2955, Transcript of Proceedings [2005] AIRCTrans 1647 (4 August 2005)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 12312-1

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

10.08AM, THURSDAY, 21 JULY 2005

Continued from 20/7/2005

PN948

THE COMMISSIONER: Yes, thank you, Mr Boatswain.

PN949

MR BOATSWAIN: Thank you, Commissioner. You will recall, Commissioner, that we'd reached the point when we adjourned last night that I had completed submissions in relation to the ground of fanciful, the claims are fanciful that were dealt in paragraphs 2.7 through to 2.22 of the outline of submissions of TOMAGO1. This morning I will address you in relation to the ground of objection relating to matters pertaining, that is, pertaining to relationship of employer/employee, which is addressed in paragraphs 2.24 in the outline.

PN950

Similar to the approach that was adopted in respect of the ground of fanciful or genuine claim, Commissioner, what I was proposing to do was to commence by making a general statement of principles that have developed in relation to the issue of matters pertaining before moving to each of the individual objections to particular claims as identified in schedule C to the outline of submissions. The starting point as a general statement of principle in relation to matters pertaining, Commissioner, is the definition of industrial dispute in section 4(1) of the Workplace Relations Act. I do not propose to take you to that at this point other than to note that among other things the definition provides that it involves matters about matters pertaining to the relationship between employers and employees.

PN951

Courts have sought to develop tests for whether matters pertained to the employer/employee relationship over a long period, the phrase having been used in the Conciliation and Arbitration Act 1904. French J in the Wesfarmers Premier Coal Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2004) FCA 1737, which I will refer to as the Wesfarmers decision, at paragraph 73 stated:

PN952

The word pertain has had a history of general exegesis in juris prudence relating to the concept of industrial dispute ...(reads)... of the Commonwealth Constitution.

PN953

The decision of the High Court in Electrolux Home Products Pty Ltd v Australian Workers Union (2004) ACA 40, which I will refer to as Electrolux, is but the latest in a line of authority on the way the term pertaining is to be applied. In Electrolux Gleeson CJ at paragraph 9 stated:

PN954

The established principle however is that in the context with which this legislation is concerned it is matters which affect employers and ...(reads)... "pertain to the relations of employers and employees".

PN955

THE COMMISSIONER: Whereabouts are you, I'm sorry, Mr Boatswain?

PN956

MR BOATSWAIN: In Electrolux.

PN957

THE COMMISSIONER: No, first off you took me to Wesfarmers at 73.

PN958

MR BOATSWAIN: Yes, I did and I indicated that Wesfarmers - - -

PN959

THE COMMISSIONER: Is that print M6550?

PN960

MR BOATSWAIN: No, it's not. I was referring to - it gets confusing I suppose, your Honour.

PN961

THE COMMISSIONER: Well, just when you name, because that is going to get confusing, give me the citation.

PN962

MR BOATSWAIN: Well, I had. That's (2004) FCA 1737 at paragraph 73. It might be convenient - - -

PN963

THE COMMISSIONER: Just a moment, Mr Boatswain. No, we don't have that before us. Did you give us a copy of it?

PN964

MR BOATSWAIN: Well, I can.

PN965

THE COMMISSIONER: Did you notify it or did you refer to it in submissions earlier and we didn't have it?

PN966

MR BOATSWAIN: No, if it's convenient - - -

PN967

THE COMMISSIONER: You have relied upon print M6550. You have done that - - -

PN968

MR BOATSWAIN: That's a Commission decision in which Wesfarmers was a party.

PN969

THE COMMISSIONER: Yes, that's right.

PN970

MR BOATSWAIN: That is not this authority which is a Federal Court.

PN971

THE COMMISSIONER: Yes, I know. My question was in previous submissions you have relied upon that Full Bench decision.

PN972

MR BOATSWAIN: Yes, I have.

PN973

THE COMMISSIONER: Yes. That was my question first off.

PN974

MR BOATSWAIN: I apologise.

PN975

THE COMMISSIONER: Okay. So yes, you have. But what you're referring to now is a different one which is a Federal Court decision.

PN976

MR BOATSWAIN: Yes.

PN977

THE COMMISSIONER: And did you notify us of that particular authority?

PN978

MR BOATSWAIN: No, I have not, Commissioner.

PN979

THE COMMISSIONER: Thank you. It's nicer to notify us rather than me spend time sifting through trying to find exactly what you're talking about. All right. Well, my associate will get that out for me in the break.

PN980

MR BOATSWAIN: If it's more convenient, Commissioner, what we have done and I apologise, as that was only a single sentence that was being directed to you I had not thought it was appropriate to take you to the actual decision for the purpose of the one sentence.

PN981

THE COMMISSIONER: Yes, but you've got to tell me where the one sentence comes from. No point in me looking at another decision trying to find your one sentence. It's helpful to know where the sentence comes from, wouldn't you admit?

PN982

MR BOATSWAIN: I would, Commissioner, and that is why I actually referred to the decision, its citation and the paragraph number in my submission to you.

PN983

THE COMMISSIONER: All right.

PN984

MR BOATSWAIN: But to make it easier, what I have prepared is a bundle of the authorities which I will refer you to in the order that I will be referring to them.

PN985

THE COMMISSIONER: In regards to pertaining?

PN986

MR BOATSWAIN: Matter pertaining, yes.

PN987

THE COMMISSIONER: And you have that for Ms Booth as well?

PN988

MR BOATSWAIN: Yes, I do. I have it for all parties and to assist I have actually placed a red tag on each of the authorities where the citation will be referred to for convenience. I should indicate that most of the extracts are single sentences or short passages so it is appropriate that I provide you with the full cases with the marking but I can indicate that apart from one or two passages it may not be necessary in the purpose of the submissions to actually go to the authority as I will be actually extracting and including in my submissions the particular passage that I'm referring to with the cross reference. But if I can - - -

PN989

THE COMMISSIONER: Yes, thank you, Mr Boatswain, that would be of assistance.

PN990

MR BOATSWAIN: Just to demonstrate that point, Commissioner, the opening statement, general principle, as indicated was in the Federal Court decision of Wesfarmers, if I can use it that way, at paragraph 73. That's on page 20 of the extract - of the judgment I should say, and you'll see that the fourth line of paragraph 73 of French Js decision at the end commences with the sentence:

PN991

The word pertain has had a history of -

PN992

That is the single sentence that I have extracted for the purpose of the general statement of principles. I should indicate there will be only one other authority that I will refer to that in my submission is not found in the bundle I've handed up and that's only because it was a recent decision of the Commission that we became aware of last night that actually was handed down in Darwin on the 18th of this month, two days ago and it was a matter that obviously had been handed down since the submissions have been prepared.

PN993

THE COMMISSIONER: Single member decision, is it?

PN994

MR BOATSWAIN: It's a single member decision but we will respectfully submit it's relevant to a particular clause that we're addressing as it is a relevant analysis of various full bench decisions and considerations addressed by the High Court and Federal Court decisions and as it's probably the most recent treatment of this issue we thought it was a matter that was relevant for your consideration in these principles, Commissioner. But that is a decision of Commissioner Richards of 18 July 2005. Again the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and the AWU and Bundaberg Foundry Engineers Ltd Certified Agreement. I do have a copy. It's in print 9603367 and at the relevant time I'll hand that up. But I'll just flag that that's the only additional authority that's not in the bundle before you.

PN995

Returning to the general statement of principles, Commissioner, I had referred to the expression by Gleeson CJ in Electrolux at paragraphs 9 in which he had stated:

PN996

The established principle however is that in the context with which this legislation is concerned it is matters which affect employers and employees in a capacity as such that pertain to relations of employers and employees.

PN997

His Honour went on to affirm at paragraph 10 earlier decisions of R v Kelly ex parte Victoria, R v ..... ex parte ANZ Banking Group and re Alcan Australia Ltd ex parte Federation of Industrial Manufacturing and Engineering Employees, restating that French J in Wesfarmers referred to at paragraph 73 as the well established proposition:

PN998

The relations of employers and employees refers to the industrial relationship and not to matters having ...(reads)... on that relationship.

PN999

Similarly in Electrolux McHugh J at paragraph 81 stated:

PN1000

For an agreement to be certified it must be about matters pertaining to the relationship between employers and employees in their capacity as such.

PN1001

His Honour also stated in that decision at paragraph 89:

PN1002

The test of sufficient direct effect on the employment relationship remains the key statutory limitation in 170LI.

PN1003

His Honour then went on to reject criticism of that test. The joint judgment of Gummow J, Hayne and Hayden in Electrolux at paragraph 161 referred to decisions in Portus and in Alcan, citing with approval the requirement that:

PN1004

For a matter to pertain to the relations of employers and employees it must affect them in their capacity as such.

PN1005

The test was phrased by Callaghan J at paragraph 241 of the Electrolux decision as:

PN1006

Whether the agreement pertains to the relationship between an employer and employee is to be objectively determined by the court.

PN1007

McHugh and Callaghan JJ, McHugh J at paragraph 60 of Electrolux and Callaghan J at 245 also indicated that:

PN1008

Provision of an agreement does not pertain to the employer and employee relationship if it concerns academic, political, social and management matters.

PN1009

French J in Wesfarmers, that's the Federal Court Wesfarmers, summarised the findings of the High Court in Electrolux in the following terms, and this is at paragraph 78 of Wesfarmers:

PN1010

The essential principle emerging from these judgments is that a matter pertains to the employer/employee relationship if it affects employers ...(reads)... with an employee as employee.

PN1011

It's our respectful submission, Commissioner, that for the purposes of assessing the objections to the various claims that have been objected on the basis of matters pertaining contained in schedule C, they are the general statement of principles that you would apply in assessing each of the objections that have been taken in relation to that ground. If I could then take you to the particular objections that we have raised on the basis of matter pertaining. On the first you will note by reference to schedule C, Commissioner, is claim 9, the travelling, fares and board - just excuse me for one moment.

PN1012

The objection is in a number of bases. The first, that the employer shall - or relates to the claim that the employer shall provide transport for all journeys between the employee's usual place of work and residence. It's our submission, Commissioner, that a series of cases have indicated that this is a private or domestic matter and this is in particular in the tax area. A decision of Lunny v Commissioner of Taxation [1958] HCA 5; (1948) 100 CLR 478, approved the decision of Newsome v Robertson, a decision (1953) 1 CR 7 where Denning LJ stated:

PN1013

Such costs were incurred for the purposes of living at home and not for purpose of work.

PN1014

And that approval is by Dixon CJ at page 485 of that report, that's the Commonwealth Law Report, and Williams, Kitto and Taylor at page 560. In Newsome v Robertson, Lord Denning stated that it is a levying expense as distinct from a business expense. It's our respectful submission that that is the situation in relation to that element of the claim and for the reasons set out in the application of the general statement of principles that is not a matter that pertains to the relationship between the employer as an employer and the employee as such.

PN1015

Equally there is a claim for the payment for travel and accommodation for the employee's family and that is the third paragraph of clause 9, the second sentence. It's our respectful submission that such a demand is not about the relationship between employer and employees. In a decision of the Association of Professional Engineers, Scientists and Managers Australia v Airly Coal at paragraph 77 to 80 of that decision but especially paragraph 79, Commissioner Bacon stated:

PN1016

The demands in those parts of the various claims which require the employer, directly or indirectly, to provide benefits to members ...(reads)... cannot give rise to an industrial dispute.

PN1017

It is our submission, Commissioner, consistent with the general statement of principles that we have referred to, also with the principle of consistency in relation to the consideration and findings of Commissioner Bacon in Airly Coal in respect of a similar demand, that you would regard that this demand, clause 9, travelling, fares and board, is not a matter pertaining to the relation of employer and employee as such and should be struck from the log.

PN1018

The next demand to which objection is taken on the ground of matter pertaining, Commissioner, is claim 10, the motor vehicle allowance. The demand and the basis of the objection is on a similar basis to that which we have just outlined in relation to travelling, fares and board. In particular the nature of the demand that all of the annual standing costs and all running costs associated with the use of the vehicle in circumstances where the employee uses his or her motor vehicle in the course of employment should be borne by the employer or an allowance paid comprehending the above, it is our respectful submission that that is not a matter that pertains to the relationship of the employer as such and the employee as such.

PN1019

In particular, although there is no specific reference to the family, the claim by its very nature would incorporate private usage by the employee or anyone else in the family who has access to and is licensed to drive a motor vehicle and for the same reason we submit that it is not directly referrable but is of an indirect consequential or remote consequence and therefore does not pertain to the relationship of employer and employee and therefore should be struck from the log. The next ground of objection is in relation to claim 14, the inclement weather claim. In particular we refer to the third paragraph of the demand which is in the following terms:

PN1020

In any area subject to cyclonic conditions the employer shall observe such cyclone procedure as is determined by the union and its members who are employed by the employer.

PN1021

We object on the ground of matter pertaining to that element of the demand.

PN1022

THE COMMISSIONER: What element?

PN1023

MR BOATSWAIN: That is the third paragraph, in any area subject to
cyclone - - -

PN1024

THE COMMISSIONER: What do you object to about the paragraph, why?

PN1025

MR BOATSWAIN: The clause is not tied to the relationship of employer/employee in their capacity as such. There is nothing in the clause that even restricts the cyclone procedure to the working area or working times. Earlier parts of the clause deal with work during inclement weather and clearly cover what will occur during working hours. In Nurses Midwives South Australia Public Sector Enterprise Agreement 2004, a decision of 30 September 2004 at print 952226, a decision of Senior Deputy President O'Callaghan, he rejected as not pertaining a clause that allowed the union the right to determine its satisfaction with remuneration levels and then to determinate part of the agreement. The Senior Deputy President stated at paragraph 25:

PN1026

Considered in isolation I cannot conclude that this clause is a matter pertaining to the employment relationship. It purports ...(reads)... with involvement of affected employees.

PN1027

Well, in that case there were no references to the employees at all. The reference here still requires the satisfaction of the union and its employees and we suggest that the application of Senior Deputy President O'Callaghan's views in relation to that matter are therefore applicable. Further, as noted earlier, both McHugh J and Callaghan J in Electrolux indicated that the provision does not pertain to the employer/employee relationship if it concerns academic, legal, social and managerial matters, and that's McHugh J at paragraph 60, Callaghan J at paragraph 245.

PN1028

We submit that consistent with the relevant statement of principles the difficulty with the third paragraph is it does reserve the right to the union to determine matters in relation to continuation of work to establish procedures, and you will note that the procedures are established by the union and its members, no involvement by the employer at all. It is on that basis we submit that that element of demand 14 does is not a matter that pertains to the relationship of employer/employee and should be struck from the log.

PN1029

The next claim to which objection on this ground has been taken, Commissioner, is claim 15 dealing with clothing. In particular the second sentence provides:

PN1030

In addition, on a six monthly basis the employer shall provide free of charge five pairs of overalls, five Tasmanian bluey jackets and five pairs of safety boots.

PN1031

In that respect the first sentence of claim 15 expressly provides for the employer to supply free of charge clothing required for the performance of work including all protective clothing, thus all work related clothing is covered by the first sentence of claim 15. The second sentence expressly deals with clothing in addition. That is, in addition to clothing required for the job. We submit that this by definition is clothing not related to the employment. Accordingly the provision of additional clothing to that required for work cannot be a matter that pertains to the relationship of an employer/employee as clearly the clothing is not work related. On this basis the second sentence should be struck from the log.

PN1032

THE COMMISSIONER: How many employees would wear safety boots outside of work, Mr Boatswain?

PN1033

MR BOATSWAIN: Well, from my experience it is not uncommon for those boots to be worn outside of work, but as is the situation with blueys, in fact my son actually was given a lend of one when we went and watched the Roosters and Eels match recently in wet weather.

PN1034

THE COMMISSIONER: Don't incriminate yourself, Mr Boatswain.

PN1035

MR BOATSWAIN: It was borrowed from my father who - - -

PN1036

THE COMMISSIONER: Don't incriminate your father, Mr Boatswain. We might leave that where it is.

PN1037

MR BOATSWAIN: But be that as it may, the principles provide that the approach that should be adopted is to assess the claims in terms of the words that are contained in the claims and any underlying intention that can be derived from their terms or any evidence that has been led. Now, there is no evidence that has been led by the union in relation to this demand therefore it is a matter that the assessment as to whether these claims are matters pertaining to the relationship must be made by an assessment of their actual words. The fact that it provides in addition to all protective clothing required for the job free of charge by definition means that this is in addition to and therefore outside the relationship of matter pertaining.

PN1038

One could speculate. If someone was getting 10 of these a year they might even have some very nice garage sales, but we don't want to speculate on that, Commissioner. The reality is it is the actual nature and terms of the demand itself which must be assessed and it is that which we have taken objection to. Just one moment, Commissioner, if I just can be excused. The next matter that we have taken objection to on this ground is - I should indicate, Commissioner, that we wish to seek leave to amend the objections in schedule C to additional objection on this ground in relation to clause 25, public holidays.

PN1039

The nature of the claim in demand 25, public holidays, relates to the second paragraph of that demand which provides:

PN1040

Any employer who terminates the employment of an employee for whatever reason shall pay the employee a day's ordinary wage for each holiday which falls within 28 consecutive days after the day of termination.

PN1041

We submit that once an employee ceases to be employed there can by definition be no matter pertaining to the employment relationship as that employment relationship has ceased. Paying former employees for holidays that fall after the employment relationship has ceased cannot therefore be a matter pertaining to the employment relationship. In South Australia v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia on 30 September 2004 at print 952221 - - -

PN1042

THE COMMISSIONER: 95221?

PN1043

MR BOATSWAIN: 2221.

PN1044

THE COMMISSIONER: What date?

PN1045

MR BOATSWAIN: 30 September 2004.

PN1046

THE COMMISSIONER: Yes, you have it in your - - -

PN1047

MR BOATSWAIN: It's in the bundle.

PN1048

THE COMMISSIONER: No, that's fine. I'm just taking a note.

PN1049

MR BOATSWAIN: Thank you. The Senior Deputy President dealt with a clause that provided income protection to redeployees to continue indefinitely. His Honour held that this clause did pertain in that it only affected redeployees and redeployees were employees. However, the Commission stated at paragraphs 28 to 29 of that decision:

PN1050

Thirdly, the South Australian Government argued that the claim ...(reads)... does not extend beyond a matter pertaining to the employment relationship.

PN1051

It is clear therefore from his Honour's reasoning that his Honour would have found the clause to be outside the matters pertaining description if it had purported to apply to employees after the employment relationship has ceased. Similarly in Wesfarmers French J at paragraphs 99 to 102 - - -

PN1052

THE COMMISSIONER: 99 to 202?

PN1053

MR BOATSWAIN: To 102.

PN1054

THE COMMISSIONER: To 102, thank you.

PN1055

MR BOATSWAIN: Rejected a trade union training leave provision which provided for payment to employees for trade union training leave whilst they were already on leave of another description as being paid for purposes extraneous to the employment relationship. Again it is clear that there is a need for a direct relationship to the employment which is not existing in the circumstances of this demand. Here these payments are being made to persons who have ceased to be employees in any form. The payments are not related to past service but to the occurrence of a future event. The matter therefore does not pertain to the employment relationship and the offending claim should be struck from the log.

PN1056

THE COMMISSIONER: You're reading from the quote? You're quoting from the decision, Mr Boatswain?

PN1057

MR BOATSWAIN: No.

PN1058

THE COMMISSIONER: That's your submission?

PN1059

MR BOATSWAIN: That's our submission.

PN1060

THE COMMISSIONER: Thank you.

PN1061

MR BOATSWAIN: And for the purposes of the submissions starting here, these payments are being made, is in relation to the fact that the relevant provision of this clause provides for payments for employees who are terminated for any reason. So once again, an employee who was dismissed for gross misconduct pursuant to this demand would be entitled to receive payment for any holiday that fell within 28 consecutive days after the date of that termination. Our objection on the matter pertaining is that once the employment relationship has come to an end entitlements to be paid for future events occurring cannot be said to arise from the - or be a matter pertaining to that relationship as such because it doesn't exist any more and that is contrasted with the situation considered by Senior Deputy President O'Callaghan when his rationale was that this entitlement arose during the employment.

PN1062

By analogy we submit that passage and that that I've referred to in French J in Wesfarmers indicate that an entitlement that is bestowed and continues after the relationship has been terminated cannot be a matter pertaining. The next matter we object to on this ground was claim 26 which is the sick leave, accident leave claim. It's in relation to the fourth paragraph where the demand is:

PN1063

The employer shall meet all the hospital/medical insurance costs for and on behalf of the employees.

PN1064

Again similar to the proposition that was addressed in respect of Commissioner Bacon's general comment about demands in various claims which require the employer directly or indirectly to provide benefits to members of the families of employees are not matters pertaining to the employer in the capacity of an employer/employer in his or her capacity as an employee. It arises, Commissioner, in our respectful submission that the requirement that the employer shall meet all the hospital/medical insurance costs does not fall within a matter pertaining.

PN1065

It is not suggested on the face of the demand that hospital and medical insurance costs related to any injury that are sustained at work, but it seems on its face to appear to be a commitment for the employer to meet hospital/medical and insurance, medical insurance costs for and on behalf of the employee generally which will also encompass by its nature any members of the employee's family and we submit on the basis of the principles that that is not a matter that pertains to the relationship of employer and employee as such and that paragraph of the demand should be struck from the log.

PN1066

The next demand which is objected to on this ground is demand 30, compassionate leave, and in particular the second paragraph of that demand which reads:

PN1067

The employer shall reimburse the employee for all travel expenses and accommodation costs associated with the taking of such leave.

PN1068

Now, this was claim 43 in APESMA log and is addressed in paragraph 91 of Commissioner Bacon's decision in Airly Coal. In that matter the Commissioner found that while the absence from work to attend a funeral and other matters is a matter that would pertain, the costs incurred do not arise from the employer/employee relationship. At the highest it is an indirect consequential remote effect of the relationship. All travel costs and accommodation costs associated with such a claim we would submit would also extend to the family, of any family members that would attend to the compassionate leave with the employee and in fact could extend any further.

PN1069

It could be a situation if an employee went with a number of friends who were not even employees of the company but paid for any of those travel expenses or accommodation costs, on the face of this demand the employer would be required to reimburse the employee. It is our respectful submission that that demand as framed is not one which pertains to the relationship of employer/employee and should be struck out. Could I then take you to clause 34 - I keep on using clause - demand 34 of the log of claims, conciliation and arbitration leave. We would seek leave to add an objection on the ground of matter pertaining to this demand.

PN1070

It is conceded both Wesfarmers and the decision of Rural City of Murray Bridge Nursing Employees ANF Aged Care Enterprise Agreement 2004, Schefenaker Vision Systems Australia Pty Ltd, the Schefenaker decision, Commissioner, which is a Full Bench decision of 18 March 2005 in print PR956575, makes it clear that genuinely it was a matter pertaining whatever the reason for leave. However, both cases also acknowledged that the mere framing of a clause in terms of leave would not make it a matter pertaining if it's not really about leave and that is addressed by French J in Wesfarmers at paragraphs 96 to 97 and in Schefenaker at paragraphs 88 and 91. In Wesfarmers French J held:

PN1071

The purported granting of paid leave for an employee to attend trade union training when that employee was rostered off duty ...(reads)... pertaining to the employment relationship.

PN1072

In respect of the demand that is currently before you in claim 34, it should be noted that the proceedings for which an employee is granted leave do not have to relate to proceedings about the employer and further, that the employee can be called on to research material that may be required under federal or state industrial relations legislation. In effect the claim requires the employer to fund an employee undertaking activities for a union in any proceedings under federal or state industrial relations legislation or to assist the union in preparation of any material that might be required under federal or state industrial legislation. In effect therefore the provision requires the employer to fund the union's research.

PN1073

In the matter of Lei Cornu Furniture Centre v National Union of Workers, it's a Full Bench decision of Senior Deputy President Hancock, Deputy President Maher and Commissioner Lewin of 27 June 1996, print N2389, the Commission was required to deal with a clause that provided that union delegates shall be allowed 30 hours per week on full pay to attend union business. The majority, comprising Senior Deputy President Hancock and Deputy President Maher stated:

PN1074

We have concluded that a claim by the union - - -

PN1075

THE COMMISSIONER: Stated at where?

PN1076

MR BOATSWAIN: Just give me one moment. It's at page 6 of the - - -

PN1077

THE COMMISSIONER: Yes, there would be no paragraph numbers.

PN1078

MR BOATSWAIN: There's no paragraph numbers, no.

PN1079

THE COMMISSIONER: No, page 6. No, that's fine, thank you.

PN1080

MR BOATSWAIN: And it's the second paragraph on that page, Commissioner.

PN1081

THE COMMISSIONER: Thank you.

PN1082

MR BOATSWAIN:

PN1083

We have concluded that a claim by the union for a full time or near full time union delegate paid by the employer is not a claim about ...(reads)... to attend a training course or courses.

PN1084

Accordingly we submit that the clause allows an employee to be paid for work of non employer related proceedings, or the preparation of non employer related research for an indefinite period is not a clause about leave but one about the provision of assistance to the union. It is not a matter pertaining to the relationship between the employer and the employees in their capacity as such. There's a perfect example of what this clause or this demand would entail given that the current debate and agitation going on in relation to the proposed workplace relations reforms it is conceivable under this demand that the union could grant an employee unlimited leave to assist the union in preparation of material in relation to that campaign.

PN1085

That is just one example of the breadth and the nature of the demand that takes it, in our respectful submission, outside of the employment, employer and employee relationship and therefore is not a matter that pertains. The demand in its entirety therefore should be struck from the log and I say the entire claim because the second paragraph provides an additional payment of $100 a day in addition to other payments for any employee who is granted unlimited paid training and study leave - sorry, I withdraw that. I was reading the wrong demand.

PN1086

THE COMMISSIONER: Yes. No, that's all right. I was looking for the figure and I thought, well, he - yes. You're onto 35 now, aren't you?

PN1087

MR BOATSWAIN: Yes, I jumped ahead of myself. I do apologise. I withdraw that last submission. Too many demands. The next matter to which we took objection to on this ground, Commissioner, is the clause - - -

PN1088

THE COMMISSIONER: Study and training leave, isn't it?

PN1089

MR BOATSWAIN: Yes, it is. I apologise. The demand is objected to on this ground on a similar basis to the submissions we have just advanced in relation to clause 34. Again the study and training leave is unlimited paid leave to be granted to all employees to take leave or training, including trade union training leave to attend any training or study courses approved by the union and employees, including preparation for and sitting examinations. We submit that the claim as formulated does not represent genuine leave. It is noteworthy that the demand is not related in any way to the profession or undertaking of the employee related to their employment.

PN1090

In fact, under this demand it would be possible that the employer would be required to pay the employee to obtain training so as they can change their career and work for another employer. Equally we take the objection that the demand as formulated requires that the approval of the course is by the union and the employee and not, on its face, there is no right or involvement of the employer to assess the suitability or the appropriateness of the leave. So it is an unrestricted right to be determined with the approval of the union and the employee for unlimited paid training and study leave unrelated to the work that is performed by the employee.

PN1091

It is our respectful submission that such a demand falls well outside the relationship of the employer as such and employee as such. It does not have the direct relationship that is required and as such should be struck from the log.

PN1092

THE COMMISSIONER: That's the whole claim?

PN1093

MR BOATSWAIN: Yes. The whole claim, it's our respectful submission, as I was alluding to earlier by mistake, the second paragraph provides an additional payment in relation to any training leave that has been provided. Obviously it is therefore contingent on such leave being granted if the demand for leave is struck from the log on the basis that it is not a matter pertaining, therefore the second paragraph has no work to do and therefore cannot be severed from the first paragraph. Therefore we submit that if our objection is upheld the entire demand should be struck from the log.

PN1094

The next matter that we take issue with on this ground is claim 36, the English class. Again, Commissioner, I would seek leave to vary our list of objections to include this on this ground.

PN1095

THE COMMISSIONER: 37, are you?

PN1096

MR BOATSWAIN: No, 36.

PN1097

THE COMMISSIONER: 36.

PN1098

MR BOATSWAIN: We have objected in schedule 6 on the ground it's not an allowable award matter. We wish to add to that, that it is not a matter pertaining. Claim 36 is quite short:

PN1099

The employer shall provide English classes for those employees who desire to attend such classes. English classes shall be conducted during normal working hours and paid by the employer.

PN1100

On its face this is clearly not about the relationship between employers and employees. It has no connection to the work. In the decision of Airly Coal Commissioner Bacon was faced with a similar claim. At paragraph 92 of that decision Commissioner Bacon concluded the claim was on its face did not relate to the employer/employee relationship. On a similar basis we would submit applying the relevant principles that this claim would not be considered a matter pertaining to the relationship of employer as such and employee as such and therefore the demand should be struck from the log.

PN1101

The next matter to which we take objection is clause 37 of the log of claims. It is the demand dealing with the National Training Board. It's our respectful submission that a demand that the employer is to establish and continue to participate jointly with the employees and the union a National Training Board is a matter that does not pertain to the relationship of employer and employee as defined. This detailed clause requires the employer to establish a National Training Board which has those responsibilities set out in claim 37.5, and you will see that there are eight Roman subparagraphs setting out the areas of responsibility.

PN1102

The claim is clearly commendable but is not about the employer/employee relationship in their capacity as such as required by Gleeson CJ in Electrolux at paragraph 9 or McHugh J in Electrolux at paragraph 89 of that decision. Even though such a board would have an eventual effect on employees such requirement is too remote and in that regard we refer to French J in Wesfarmers affirming the decisions of Kelly Portus and Alcan which we have previously referred to. The requirement for a direct effect was stated by McHugh J in Electrolux at paragraph 89 of that decision. It is to be noted that in particular clause 37.5(vi) refers to training throughout the industry and that is:

PN1103

Consistent standards of training throughout the industry including both on and off the job training.

PN1104

We submit that that makes it clear the clause is not about training in respect to the particular employer the subject of the log but industry wide training. We respectfully submit that for these reasons on the application of the relevant principles and the assessment of the demand as a whole - - -

PN1105

THE COMMISSIONER: So it's the whole clause?

PN1106

MR BOATSWAIN: The whole clause.

PN1107

THE COMMISSIONER: The whole claim, Mr Boatswain.

PN1108

MR BOATSWAIN: The whole claim. It's difficult, Commissioner. So many decisions refer to them as clauses and I get tongue tied. The whole of the demand we submit cannot be severed in relation to the establishment of the National Training Board. It is our respectful submission the whole demand falls outside of the principles, is not a direct relationship as an employer as such, an employee as such and therefore should be struck on the ground that it is not a matter pertaining. The next matter that we take objection to on this ground is demand 39 which is the clause dealing with recognition of prior service. This clause provides:

PN1109

For the purpose of calculating an employee's service period with the employer all periods of employment with any previous employers shall be deemed to be service with the employer.

PN1110

In Electrolux McHugh J stated that there needed to be a sufficient direct effect of an employment relation for a matter to pertain as required by the Act and that is at paragraph 89 of that decision. Similarly both Gleeson CJ and McHugh J made it clear that there was a requirement that for a matter to pertain it needed to affect the employers and employees in their capacity as such. Here the recognition of prior service is not service with the current employer at any earlier time but with any previous employer, hence this clause is not about the relationship between the employer and the employee in that capacity as such but the employer in his or her capacity as a former employee of a former employer.

PN1111

Such proposition needs to be distinguished from the decision in Airly Coal. In that case there was a claim in identical terms. Commissioner Bacon at paragraph 100 of his decision stated:

PN1112

Clause 60.2 determines how an employee's period of service is to be determined. The claim requires service with ...(reads)... from the employer/employee relationship.

PN1113

However we submit that that passage needs to be considered in light of the particular industry in which the claim was there made and therefore hence the reference to long service leave in the Airly Coal decision. In Airly Coal the industry was the coal industry. In the decision it was made clear by Commissioner Bacon earlier in the decision that that particular industry had a history of portable long service leave and he read the clause in that light. Thus the Commissioner had earlier stated in relation to that same claim at paragraph 71:

PN1114

He employers submit that this claim is fanciful. In considering the claim on its face one might quickly agree. However in the coal mining industry ...(reads)... to an employee.

PN1115

It's our respectful submission that in the aluminium industry there is no such portable long service leave history. Moreover, on a proper reading of the claim in the light of the decision in Electrolux, which was not referred to by Commissioner Bacon in his decision, the clam is not limited to service with a previous employer in the industry. It can relate to any previous employer no matter how remote in time or how remote in industry. As Electrolux has established, that there is a requirement that there be a direct effect on the employment relationship and there be a relationship with the employer and employee in their capacity as such, it is clear that this claim does not pertain to the employment relationship between my client, Tomago and its employees. On this basis the entire claim should be struck out from the log on the ground that it is not a matter pertaining.

PN1116

The next ground to which objection has been taken, Commissioner, is 42 and that is the demand dealing with redundancy and retrenchment. Claim 42(5)(b) requires:

PN1117

The payment of relocation expenses incurred by the employee and his/her dependents.

PN1118

As previously submitted, benefits payable to an employee's family are clearly not matters that relate to the relationship between the employer and employee. In Airly Coal Commissioner Bacon stated at paragraph 79:

PN1119

The demands in those parts of the various claims which require the employer directly or indirectly to provide benefits to members of ...(reads)... cannot give rise to an industrial dispute.

PN1120

Equally we refer to claim 42(6):

PN1121

An entitlement to benefits notwithstanding that an employee leaves during the period of notice of termination.

PN1122

Again on the same basis as outlined previously, once an employee leaves the service as an employer there is no relationship between the employer and the employee in those respective capacities. An employee who has left employment during the period of notice is no longer an employee and a claim requiring payment of, for example, relocation expenses is not a requirement for a sum to be paid to the employee in his or her capacity as an employee. Where the employment relationship has ceased there is no ability for demands contained in a log of claims or in an award or agreement to deal with such issues as these matters cannot pertain to the employment relationship within the existing principles. Accordingly those claims should be struck from the log.

PN1123

The next matter that we take objection to, Commissioner, is claim 44 dealing with information and in particular the first sentence which requires:

PN1124

The employer to supply all information considered by the union and employees to be necessary so as to allow the union to improve or maintain an employee's welfare.

PN1125

The true nature of the claim can be seen in the fact that the information is to be provided so that the union can take the appropriate action in relation to the employee's welfare. Again it is not a claim that is about the relationship between the employer and the employee in their respective capacities but about the relationship between the union and the employer. Further, the welfare of the employees is not limited to their welfare at work, nor is the information sought limited in any way to information restricted to the relevant relationship.

PN1126

A number of cases have considered clauses requiring information to supplied to unions Usually the information sought relates to names and addresses. In TNT Pty Ltd trading as TNT Express and Wrightway Transport Pty Ltd trading as Wrightway Express v TWU, it's a decision of Senior Deputy President Lacy of
7 April 2005, print 956975, the Commission was faced with a clause allowing union access to employees' time and wage records. At paragraph 22 of that decision the Commission indicated that such clauses have a mixed juris prudential history and referred to the similar case of re Atlas Steels Metals Distribution Certified Agreement, the Atlas Steels matter. The Full Bench in Atlas Steels stated at paragraphs 35 to 36:

PN1127

On the face of it the clause constitutes an agreement between an employer as employer and the union as union. There is nothing in the ...(reads)... pertaining to the relationship.

PN1128

The Commission in TNT Transport then examined subsequent decisions including Health Minders and National Union of Workers Comprehensive Enterprise Agreement. It is a Full Bench decision at print 926554 of Senior Deputy President Polites, Senior Deputy President Watson and yourself, Commissioner Larkin, on 10 January 2003. Senior Deputy Lacy then stated:

PN1129

The TWU submitted that the purpose of the clause is self evident to ensure that the terms and conditions embodied in the agreement are met ...(reads)... for which the TWU contends.

PN1130

Commissioner, it should be noted that there is no reference in the log of claims here that is before you to the information sought being subject to applicable legislation. In contrast, the clause is completely open as to any information and for any purpose. More recently the issue has been again in South Pacific Retreading (Windsor Gardens) Enterprise Agreement, a decision of 3 May 2005 before Senior Deputy President O'Callaghan in print 957737. In that case the Senior Deputy President at paragraphs 28 to 31 stated:

PN1131

As to the first part of the NUW submissions it is my view that the union notification clause is not clearly linked to any other provision ...(reads)... application for certification.

PN1132

Again here there is no link to redundancy and no link to compliance issues. We submit that the claim does not pertain and should be struck from the log in its entirety. The next claim to which objection is taken, Commissioner, is claim 49 the contracting/subcontracting labour hire clause. It is objected on this ground on a number of bases. The first sentence of the demand, Commissioner is that:

PN1133

The employer is not to employ contractors or consultants without the express approval of the union and its employees.

PN1134

This sentence fails to be about matters pertaining on several grounds. First, the claim is about the relationship between the employer and the union, not about the relationship between the employer and the employee. We refer to a decision of Nurses Midwives South Australian Public Sector Enterprise Agreement, a decision of Senior Deputy President O'Callaghan in print 952226 and the discussion about - - -

PN1135

THE COMMISSIONER: 95?

PN1136

MR BOATSWAIN: 952226.

PN1137

THE COMMISSIONER: Thank you.

PN1138

MR BOATSWAIN: And the discussion about claim 14, inclement weather, and we have addressed that previously. Secondly, as previously noted, both McHugh J and Callaghan J in Electrolux indicated that a provision does not pertain to the employer and employee relationship if it concerns managerial matters, and that's at paragraph 60 in relation to McHugh J and at paragraph 245 for Callaghan J. This claim refers to the - - -

PN1139

THE COMMISSIONER: Sorry, what paragraph?

PN1140

MR BOATSWAIN: Callaghan is at 245.

PN1141

THE COMMISSIONER: Thank you.

PN1142

MR BOATSWAIN: This claim refers to the employer's managerial rights to determine what the form of labour is used to complete work. Thirdly, the claim in effect prevents the employer engaging contractors without the approval of the union and employees. As such the clause falls within the High Court authority of R v Commonwealth Industrial Court ex parte Cox [1968] HCA 86; (1968) 121 CLR 313 of the Cox decision where the High Court found the dispute about a clause which purported to prevent the employment of independent contractors outside the factory was not a dispute about an industrial matter.

PN1143

The claim can clearly be distinguished from the claims considered in the High Court R v Moore ex parte Federal Miscellaneous Workers Union of Australia [1978] HCA 51; (1978) 140 CLR 470, referred to as the Moore decision, and in the clause in the Schefenaker decision where the provision merely provided for the regulation of the terms of employment of any person engaged by the employer. The clause here is in similar effect to the clause considered in Wesfarmers. In Wesfarmers French J stated at paragraph 104 - it might be preferable to take you to this extract because it is lengthy, Commissioner. It's at tab 1. If I take you to paragraph 104 of that decision which is at page 26, at paragraph 104 of that decision French J states:

PN1144

Clause 33 includes provisions which would impose restrictions or qualifications on the use by the employer of independent ...(reads)... following approach will be able to be taken.

PN1145

And it goes on to talk about:

PN1146

The employer will consult with the employees and union representatives and discuss the most cost and time effective manner. The work ...(reads)... contractors to carry out warranty work on equipment.

PN1147

His Honour then extracts the relevant clause and he then continues:

PN1148

There is also a requirement the union be notified of the employer's intention to engage a contractor for work related to the preparation and mining ...(reads)... of the kind required by section 170LI.

PN1149

Commissioner, in the Transport Workers Union of Australia v Australian Air Express, a decision dated 24 June 2005, at print 959284, a Full Bench comprising Senior Deputy President Harrison, Senior Deputy President Hamberger and Commissioner Smith, the majority comprising Senior Deputy President Harrison and Commissioner Smith examined the various cases that had dealt with contracting out, summarising at paragraph 48:

PN1150

On one side of the line is a clause prohibiting or regulating the employer's right to engage or use contractors and on the other a clause ...(reads)... the second does pertain.

PN1151

We submit that clearly this part of the demand falls into the first category and therefore does not pertain and should be struck from the log. In relation to subparagraph (b) of the demand, Commissioner, which provides:

PN1152

Where contractors or consultants are employed or contracted contractors, consultants and/or their employees shall join the union.

PN1153

We object to that demand on the basis that the decision in Electrolux clearly showed that a requirement that the employer deduct union fees was not a matter that pertained to the employment relationship. A claim that requires employees to join a union and that would be similarly not about the relationship between the employer and the employee in the capacity as such. In KL Ballantyne v National Union of Workers The Laverton Site Agreement 2004, a decision of
22 October 2004, print 952656 which is at tab 14, a decision of Vice President Ross, the Commission was required to consider among things a clause that provided that the union was to be given an opportunity to recruit workers as members and that adequate time be allowed for delegates to discuss union matters with new workers as soon as practicable. Vice President Ross held at paragraph 170:

PN1154

The clause pertained to either the relationship between the union and the employer or the relationship between the employees and the union but did not pertain to the relationship between the employer and employee.

PN1155

We submit that the provision in this demand is even more remote. It purports to require the employer to require the employees of a third person as well as the third person themselves to join a union. We submit the clause cannot under any circumstance pertain to the relationship between the employer and its employees in that capacity as such and should be struck from the log on that ground itself. But it's also relevant, Commissioner, at this point in time - I withdraw that. I will deal this is in a moment. The next subparagraph in the demand is at paragraph (c) which provides:

PN1156

The employer shall not engage former employees as contractors or consultants except with the express written approval of the union and employees.

PN1157

We respectfully submit that not only in this provision caught by the decisions of Cox and Wesfarmers that we have referred you to but in purporting to cover former employees it is clearly not about the relationship between the employer and its employees in the capacity as such. Accordingly the clause cannot pertain to the relationship of employer and employees and should be struck from the log. We then deal with the last sentence or paragraph in demand 49 which provides:

PN1158

The employer shall immediately upon deciding to engage contractors on work covered by the log of claims notify the union of such decision and also immediately forward by certified mail to the union the name and address of the contractor and the number of employees employed by the contractor.

PN1159

We object to that clause on the basis it does not pertain as it is about the relationship between the union and the employer, and we repeat our submissions that we've previously made in relation to that aspect in regard to the first aspects of this demand. Information, particularly the decisions of - I withdraw that. I also remind you, Commissioner, that in relation to the claim 44 dealing with information we refer to the decisions of TNT Transport and South Pacific Tyres. We submit that the extracts that we referred to in relation to that clause also applies to this particular demand.

PN1160

Nothing in this demand links the claim to any pertaining matter employers and employees of the employer. Further, the names and addresses sought are not even those of the employer's own employees but employees of a third party. We submit that clearly no part of this element of the log of claims pertains to the employment relationship and should be struck out. Just excuse me for one moment. The other factor that is relevant in relation to this clause and it's probably to deal with at this moment, Commissioner, is that there are elements of the claim that we say assessed as a whole, and this is clause 49, identifies that the effective purpose of claim 49 is not in relation to dealing with contractors but really dealing with the issue of preference of employment.

PN1161

In that regard we refer you to the decision of Thiess Contractors which we have previously taken you to. Thiess Contractors is a Full Bench decision at print P9291 and in particular the examination of the issue of industrial dispute of employer/employee relationship which commences on page 8 and continues on page 9 of that decision, Commissioner. In that regard we're referring to the approach that has been adopted by the various courts and this Commission in assessing clauses or claims of this nature and that is to look at the intention of the claim, first of all from its own terms and then by considering the log of claims in its entirety to ascertain the underlying intent of this clause. In the matter of Thiess Contractors on page 9, having already dealt with an issue of genuineness the Full Bench stated:

PN1162

However, it may well be the claims attacked by Thiess meet the test of genuineness but fail to meet the requirements of the creation of an ...(reads)... ex parte The Shell Company.

PN1163

The Full Bench then quote from the former Gibbs J at page 325 in this form:

PN1164

Such a demand is one which the employer themselves would have no power to grant. It seems to me impossible to accept that a demand of that ...(reads)... the capacity of the employer to bring about.

PN1165

I do not read further from the quote. At about point 8 of that decision, Commissioner, the Full Bench continues:

PN1166

From these decisions we draw the conclusion that the critical issues in the matter are whether the demand for preference by the union ...(reads)... a proper basis on which to act.

PN1167

It then continues over the page, at the top of page 9 in finding:

PN1168

We are also of the view that the assent or dissent of the employer to the claims is in this matter irrelevant. We arrive at this conclusion for all ...(reads)... sections 298K and 298L.

PN1169

They're not cited there but they are obviously references to the Workplace Relations Act. It's our submission, Commissioner, if you look at the intent and purpose of this clause on the face of it, it is not a clause that pertains to the relationship of the employer and employees as such but the purpose of this clause is to provide preference of employment to employees of contractors and the contractors themselves by requiring first of all that the employer will not employ contractors or consultants without the express approval of the union. Where they are employed or contracted they must join the union, it is prescriptive. In subparagraph (b):

PN1170

Contractors, consultants of their employers shall join the union.

PN1171

It goes further to provide that:

PN1172

The employer shall not engage former employees as contractors or consultants except with the written approval of the union and employees.

PN1173

It then continues in the second last paragraph:

PN1174

The employer shall ensure that any contractor or subcontractor or any other person engaged shall pay to the employees of the contractor or subcontractor or other person the wages and conditions contained in this log of claims.

PN1175

And finally a requirement that:

PN1176

As soon as a decision is made to engage contractors the employer must notify the union of such decision and also immediately forward by certified mail the names and address the contractor and number of employees employed.

PN1177

It is our respectful submission that it is clear on any view of that clause that either as a whole or by individual elements it is a matter that is a demand that cannot be made by this Commission and further, it is a demand which is not one which in any way pertains to the regulation of employer and employee. It is one which tips over the line that has been established by the authorities to be one that cannot give rise to industrial dispute and should be struck from the log.

PN1178

THE COMMISSIONER: Is it convenient at that point to pause for a courtesy break, Mr Boatswain?

PN1179

MR BOATSWAIN: Absolutely, Commissioner.

PN1180

THE COMMISSIONER: Yes. The Commission will adjourn for 10 minutes.

<SHORT ADJOURNMENT [11.41AM]
<RESUMED [11.55AM]

PN1181

THE COMMISSIONER: Yes, whenever you're ready, Mr Boatswain.

PN1182

MR BOATSWAIN: Thank you, Commissioner.

PN1183

MR BOYCE: Commissioner, sorry, might I just indicate I need to leave today about 20 past 12, if I could be excused?

PN1184

THE COMMISSIONER: Yes, of course, Mr Boyce. Thank you.

PN1185

MR BOATSWAIN: Thank you, Commissioner. Before I move to the next ground I thought it would be an appropriate time just to hand up that additional authority that I had mentioned to you that has only become available in the last day or so. This is a decision of Commissioner Richards dated 18 July 2005 involving the Bundaberg Foundry Engineers Ltd, the AMWU and the Australian Workers Union in relation to a certified agreement 2005. You will see from the headnote, Commissioner, that the dispute that is the subject of this decision related to a consideration of the authorities in respect of whether a clause pertained to a requisite relationship, the clause being that partially prohibited the engagement of contractors.

PN1186

If I can briefly take you to paragraph 7 of that decision that is on page 3, you will see that the commencement - if I take you to paragraph 6 at the top of the page it will probably put it more in context. You will see that the Commissioner refers to Schefenaker and the Full Bench in re TWU, cases I've taken you to, and it indicates on the third line:

PN1187

Both appear to proceed on the basis that labour hire agencies fall within ...(reads)... discussed generally in Otis Elevator -

PN1188

And I don't read that. In paragraph 7 the Commissioner then refers to Schefenaker and the relevant clause being considered before the Full Bench in that decision dealing with an obligation on an employer party to the agreement to "instruct" any labour hire it engages to increase the wages. We indicate here, if I can just stop there, that obviously the nature of the clause which we've objected to in claim 49 of the log is of a different nature in that it is not one which involves the instruction, but we submit prohibition on the basis of engagement in that it cannot do without the express approval of the union and employees.

PN1189

At paragraph 10 of the decision that I've just handed up the Commissioner then addresses for the purposes of the approach, determining whether or not a term of an agreement relating to contractors pertains to the requisite relationship the Full Benches in Schefenaker and TWU would appear to require the Commission must reach a number of express related judgments about the clause before it and the Commission then sets out three questions set out by bullet points. Significantly I take to the second point and that is:

PN1190

Secondly, on the basis of the plain words of the relevant clause in the context of the agreement as a whole and any other relevant evidence ...(reads)... of the Cox and the Moore decision -

PN1191

Which I have already taken you to. The Commissioner then goes through and analyses the judgment of the Commission in terms of the Full Bench decision in the TWU in paragraph 11 and proceeds through to paragraph 16 in his decision where he extracts a statement from the Full Bench in Schefenaker and where he says:

PN1192

The provision in question evidences a detailed agreement with the company requiring consultation about the usage of labour hire employees ...(reads)... onto their own employees.

PN1193

And noting that the emphasis in the commencement of the extract was added by the Commissioner. At paragraph 17 the Commissioner then continues:

PN1194

Having examined the provision in question in its own terms ...(reads)... the status of the clause for the purposes of section 170LI.

PN1195

Now, if I can just stop there, Commissioner. I refer to that analysis by the Commissioner as correctly supporting the proposition that the appropriate course is to attempt to discern the underlying intention from the words of the demand itself and interestingly the intention that was identified in the Schefenaker decision and the TWU Full Bench decision referred to concerned the security of employment of the employees covered by the agreement. It's our respectful submission that that evidence is missing from the demand that is currently the subject of this log. Noting in paragraph 18:

PN1196

The Commission noted that this task as carried out by the Full Bench in Schefenaker may have been assisted it would seem by the preamble to ...(reads)... it went on to specify -

PN1197

And then over the page it actually extracts that preamble which is emphasised again by the Commissioner as:

PN1198

The employer and unions confirm commitment to permanent direct employment.

PN1199

Again if I interpose, no such preamble or no intention is capable of being derived from the demand 49 before you. We submit that the intent is one of preference to union membership and not that of protection of permanent direct employment. In paragraph 21 of the Commissioner's decision he then refers to the fact that:

PN1200

In re TWU the Full Bench considered the two judgments of the High Court.

PN1201

And he's referring there, as you will see from directly above in paragraph 20, to re Cox and re Moore, the two decisions I have referred to you in my submissions, and then quotes the Full Bench as putting it in this way, and a direct quote:

PN1202

On one side of the line is a clause prohibiting or regulating the employer's right to engage or use contractors and on the other a clause providing ...(reads)... falls on the permissible side.

PN1203

Again I interrupt or interpose to say that there is no evidence that has been led by the union in relation to the purpose of this section, of this claim. The claim can only be interrupted there on the underlying intent as referred to and we respectfully submit given the terms of that the Commission did conclude its intent is that of preference. I would then draw your attention, Commissioner, to paragraph 27 of the Commissioner's decision where he refers:

PN1204

The Full Bench in effect found that the matters of the Full Bench in Schefenaker that clause 17.2 and 17.4 might partially prohibit ...(reads)... pertained to the requisite relationship.

PN1205

Again interposing, the current demand does not have that ancillary intention to effect an increase in the number of permanent employees and therefore those factors which were significant in the balancing and assessment by the Full Bench in the Schefenaker decision was absent in this matter. If I could then refer you to paragraph 34 of the Commissioner's decision. Again the Commissioner having reviewed the various High Court decisions makes the statement:

PN1206

On the High Court's reasoning a clause that constitutes a prohibition that extends to forbidding albeit partially the engagement of independent ...(reads)... an employee's interests.

PN1207

Again we note that we do not have that intent but we submit that the effect of the demand as drafted does constitute a prohibition that extends to forbidding albeit partially the engagement of independent contractors, unless the specified matters and the consent of the union is provided. Interestingly one of the matters the Commissioner then went to address is a claim that is similar to the second last paragraph of demand 49 which provided for a requirement that payment be made in similar terms to the award. That's referred to at paragraphs 37 where he refers to sub elements. The first sub element at 38 and the second at paragraph 39:

PN1208

poses a question which a clause prioritising the termination of contractors during an economic downturn constitute a prohibition (or partial prohibition) or a regulation on the engagement of those contractors.

PN1209

You will then see from the decision that the Commissioner addresses the second sub element posed and came to the conclusion based on the authorities that such provision placed a prohibition on contractors in a particular circumstance and was fatal to the agreement. He refers to that finding in paragraph 44. In his conclusion the Commissioner then provides because of the certified agreement an opportunity for the parties to reconsider its position and indicate within 14 days whether an application is to be made or otherwise it will be dismissed. But significantly in paragraphs 48 and 49 of his decision the Commissioner says this:

PN1210

The Commission brings to the parties attention in concluding that because of its finding above it has not had need to reach a concluded judgment ...(reads)... provision in terms detailed above.

PN1211

Continuing:

PN1212

One issue which might arise here is whether in the context of the available evidence the apparent prescription of an actual rate of pay ...(reads)... in re Cox.

PN1213

We would submit, Commissioner, that the answer to both of those questions is yes as clearly being flagged by the Commissioner without the necessity of making such a conclusion and as such the answer yes on both counts would be fatal to the application and also fatal to the attempt to have clause 49 that is currently before you considered one which can give rise to an industrial dispute and one which pertains to the employment of employer as such and employee as such. I apologise for taking some time in addressing that issue but since it was so appropriate to this matter and only came to my attention late last night I thought it was appropriate to address that.

PN1214

If we can then turn to the objections, the next objection is clause 51, the environment. This claim deals with the requirement the employer ensures on site and related off site activities are performed in an environmentally aware manner with a number of specific steps required to be taken, and I do not take you to those at the moment. In the decision of Electrolux the High Court established that a provision of an agreement does not pertain to the employer and employee relationship if it concerns political or social matters, and I referred earlier to McHugh J at paragraph 60 Callaghan J at paragraph 245, environmental issues are both political and social.

PN1215

The position here needs to be distinguished from two instances when an environmental clause was found to pertain, though in both cases the finding was unnecessary as the clause was also found to be outside the log of claims. Both were decisions of Senior Deputy President O'Callaghan in the Australian Services Union v Corporation of the City of Port Augusta, it's a decision of 19 November 2004 at print 953472, and the District Council of Copper Coast v Australian Municipal, Administrative, Clerical and Services Union, dated 23 December 2004 at print 954669. It should be noted that both cases are contained in the bundle that have been handed to you, Commissioner, at tab 15 and 16 concerned local government. The clause in those cases read as follows:

PN1216

Clause 27, environmental efficiency, the parties agree to work towards greater environmental efficiency in all council operations and adoption ...(reads)... in council's operations.

PN1217

In Australian Services Union v Corporation of the City of Port Augusta Senior Deputy President O'Callaghan noted the submissions of the parties at paragraph 14:

PN1218

The parties put to the Commission that this clause affected the way in which employees went about their work that waste issues were part of employee functions and the clause was ancillary to the duties of employees.

PN1219

His Honour noted at paragraph 15 that he was not able to construe the clause as machinery provision stating:

PN1220

On its plain words it commits the parties to environment efficiency agenda.

PN1221

Nor, at paragraph 17, could he find that the clause could be ignored on the basis it was trivial. Nevertheless his Honour did find that in the circumstances the clause did pertain, stating at paragraph 18:

PN1222

Clause 27 pertains to the employment relationship insofar as it details work related matters to be discussed between the council and its employees.

PN1223

We submit that these aspects demonstrate that the matter pertained because in the particular circumstances of local government employment the local government had as one of its governmental functions the care of the local environment, including waste disposal. Environmental issues were part of the actual work and were not incidental to the work. The aluminium industry can thus be distinguished. Caring for the environment is incidental to the industry, not part of the industry proper and the work to be performed by the employees sought to be covered by the log that is currently before, as it would be in the local government, accordingly we submit that the environment demand in 51 is not a matter that pertains and should be struck out.

PN1224

The next objection is in relation to claim 53, shop stewards together with its appendix 1, the shop stewards charter. Commissioner, this provides that - - -

PN1225

THE COMMISSIONER: And appendix 1, you're bringing in appendix 1 for this argument as well?

PN1226

MR BOATSWAIN: Yes. It's our submission that the only operative role for appendix 1 is through claim 53. So if claim 53 is struck it follows that appendix 1 must also fall. This claim provides:

PN1227

The employer is to provide both time and facilities to enable shop stewards to perform the duties set out in the shop stewards charter.

PN1228

Which forms appendix 1 to the log and for that reason we say there is that connection established, Commissioner. Because the claim requires the provision of both time and facilities the claim cannot be classed as a provision about leave. To the extent that the claim is about the provision of time it is relevant to consider the fact that the claim needs to be genuinely about leave, as we've addressed previously when addressing you under claim 34 of the conciliation and arbitration leave provision.

PN1229

We respectfully submit that an examination of the activities under the charter shows clearly that the main thrust of the charter is not about leave at all but about union activities. Thus the charter deals with matters such as right to approach or be approached for the payment of union dues, to move into other departments to converse on any matters in accordance with union policy, to hold monthly stop work meetings, to access to telephones, cupboards and furniture, to efficiently carry out the union responsibilities, to place matters of interest to members and a locked noticeboard under the control of the shop steward, to have guest speakers at meetings on the job in accordance with union policy.

PN1230

The decision of Schefenaker makes it clear that there are circumstances in which union delegate clauses can be legitimate and we refer to paragraphs 125 and 131 of the decision about taking it to them, Commissioner. However the claim that is currently before you incorporated in the charter and requiring an employer to provide facilities to allow the enumerated activities to take place goes further than that which is allowed. As one example the first provision of charter gives right to a shop steward to approach a member for the payment of union dues. It is thus a clause related to recruitment and maintenance of union membership.

PN1231

It is the type of clause rejected by Vice President Ross in Ballantyne and Senior Deputy President O'Callaghan in the Iplex Pipelines Australia Certified Agreement Elizabeth South Australia 2004 which is a decision of
20 October 2004, print 952586, which is located at tab 17 of the bundle that has been handed to you. While Commissioner Grainger sought to distinguish these cases in GA Gathercole Pty Ltd and Australian Meat Industry Employees Union Victoria Meat Processing Agreement, a decision of 11 February 2005 at print 955701 which is at tab 18, the distinction was on the basis that the clause he was concerned with imposed an obligation on the employer that pertained to the requisite relationship. We submit the same principle does not apply here.

PN1232

Similarly the requirements to provide a telephone and storage and a union noticeboard are clearly not matters that pertain. In the decision of Ballantyne a clause relating to union noticeboards was held to be ancillary or incidental to matters that pertained following Merkel J in the Electrolux matter at first instance. Both followed in the majority in Australian Air Express case which I have already referred to. However the Iplex Pipelines only found the matter was incidental because it related to another demand or claim within the log. The Commission expressly noting that without such provisions the conclusion may well have been different.

PN1233

A union noticeboard clause was rejected as not pertaining in the Airly Coal decision at paragraph 110. In Alcheringa Hostel Inc, ANF and HSUA Certified Agreement 2002, which is a decision of 11 November 2004 at print 953139, Senior Deputy President Kaufman, the Commission looked at the nature of what the clause allowed. In that case as here, there was no limitation on the nature of the notices that could be placed on the noticeboard. The Senior Deputy President stated at paragraphs 35 to 37:

PN1234

In my opinion the clause in this case is distinguishable from that considered by Higgins J in the Federated Clothing Trades ...(reads)... I must refer to certify the agreement.

PN1235

Commissioner, similarly we say that the clause before you there is nothing to suggest that any of the clauses in the charter are limited to matters that pertain to the employment relationship. The facilities required of the employer can be used by the union for any purpose whether related to the relevant relationship or not, the clause therefore it is submitted does not pertain and should be struck in its entirety from the log.

PN1236

THE COMMISSIONER: Mr Boatswain, is the objection to the full clause and the full appendix?

PN1237

MR BOATSWAIN: Yes, it is.

PN1238

THE COMMISSIONER: Every single thing, point 1 to 7 of the appendix?

PN1239

MR BOATSWAIN: Just one moment, Commissioner. It is, Commissioner. The reason we say that is that both of the clauses are driven and dependent upon the operation of appendix 1 and we say that those provisions in consideration, as we have submitted, clearly takes it outside the province of matter pertaining and therefore the entire clause as drafted and as presented and served on my client should be struck as it does not constitute a matter pertaining. The next matter that we take issue with on this ground is the child care clause in - - -

PN1240

THE COMMISSIONER: And not the right of entry, did you withdraw that?

PN1241

MR BOATSWAIN: Excuse me. Just excuse me one moment. I do apologise, it seems to have overlooked my submissions. Yes, we do object to that on that basis. Thank you, Commissioner.

PN1242

THE COMMISSIONER: On what basis? Pertaining.

PN1243

MR BOATSWAIN: On the ground of matter pertaining.

PN1244

THE COMMISSIONER: Yes.

PN1245

MR BOATSWAIN: The basis of objection is quite succinct - no, I withdraw that objection, Commissioner. Yes, we withdraw the objection on that ground to right of entry.

PN1246

THE COMMISSIONER: So I can amend TOMAGO1 to remove clause 54?

PN1247

MR BOATSWAIN: Yes. That then brings us to - - -

PN1248

THE COMMISSIONER: I think your estimate last night of your length of time was a tad optimistic, Mr Boatswain.

PN1249

MR BOATSWAIN: I'm not far off it, Commissioner. That is, I'm not far off from finishing.

PN1250

THE COMMISSIONER: Good.

PN1251

MR BOATSWAIN: The next matter we take objection to is claim 55, parking of vehicles. In relation to this matter it is the third sentence being:

PN1252

The employer shall fully insure the employees vehicle so parked against loss or damage.

PN1253

It is our respectful submission that on the basis of the principles we've referred you to that an obligation placed on the employer to fully insure an employee's vehicle against loss or damage we say as drafted is not restricted to the time that it is parked at the parking facilities that have been sought and as such taking further, then that direct relationship is a matter that is outside of the matter pertaining provisions and therefore that sentence, the third sentence should be struck from the demand on the basis of matter pertaining issue.

PN1254

The next objection is in relation to paragraph 56 which is the child care provision. The objection on this ground is on the basis that the employer is to required to provide child care services to employees children as determined by the employee. The cases suggest that child care could in appropriate circumstances be a matter that pertains and that is a matter that was addressed by Commissioner Bacon in Airly Coal. Equally in Le Cornu, which I've referred to earlier, decided in
1996 - - -

PN1255

THE COMMISSIONER: I'm sorry, that last authority?

PN1256

MR BOATSWAIN: The Le Cornu decision. It's an earlier reference that I have given you, Commissioner.

PN1257

THE COMMISSIONER: No, that's all right. I don't interrupt. I just didn't hear what you said.

PN1258

MR BOATSWAIN: I apologise. The majority suggested that:

PN1259

Whether child care was a matter that pertained as a live question but as child care became more prevalent in consensual contracts between employers and employees ...(reads)... Callaghan J made it clear that the test was an objective test.

PN1260

And that is at paragraph 241 where he stated:

PN1261

Where the agreement pertains to the relationship between an employer and employee is to be objectively determined by the court.

PN1262

In Electrolux there was clearly evidence that there was a level of consensual payment of union dues and many earlier decisions had referred to such a position. This was not a relevant factor taken into account by the High Court. It is therefore suggested that similarly there is a need here to take an objective look at the clause. The demand that is currently before you is not about the employment relationship because it is not tied to the employment. As an example, the child care can be demanded whether or not it needed to enable the employee to attend work and it can cover times both before and after working hours, even at night for example to allow parents to attend social events after work has ceased.

PN1263

Accordingly in terms of the demand as it has been drafted and served, there is no sufficient direct link to the employment relationship as required by the Electrolux decision and it's our submission that the demand therefore does not pertain. The next matter to which we take objection is paragraph 57, the amenities. It is limited to the last demand, though not numbered but it's the fifth dash relating to suitable lock up facilities, protection of employees clothing and belongings, any items stolen, destroyed, damaged, lost shall be replaced by the employer. We simply submit that that sentence imposing an obligation where any item may be stolen, destroyed, damaged or lost is one that is not directly related to the employment relationship.

PN1264

As drafted, any conduct by the employee on the day where he in fact loses any property, to suggest that that should be replaced by the employer we say falls outside the matter pertaining principle and that element of the demand should be struck. The next matter that we take issue with in relation to this matter is site security which is demand 58. Under this claim any site security can only be introduced with the agreement of the union and its employees. According to the clause in our submission suffers from two defects, first, as noted above in relation to claim 14, inclement weather, Senior Deputy President O'Callaghan in the Nurses Midwives South Australia Public Sector decision rejected as not pertaining a clause that allowed the union the right to determine its satisfaction with remuneration levels and then to terminate part of the agreement.

PN1265

We submit that this demand also allows the union to determine what site security measures are needed. Secondly, there is nothing in the clause to tie the security measures to the working relationship. For example, security measures may relate to preventing children having access to dangerous parts of the site or may relate to preventing theft of company property by outsiders, or the prevention of terrorist acts against the factory. These would only indirectly relate to the employment relationship. As McHugh J stated in Electrolux at paragraph 89:

PN1266

The test of sufficient direct effect of the employment relationship remains the key to the statutory limitation in section 170LI.

PN1267

Here there is no sufficient direct effect to the employment relationship in the demand as it is currently drafted and due to the way it is drafted and presented it should be struck out as it falls outside the matter pertaining principles. The next matter to which objection is taken on this ground is claim 59, mortality payment. The claim requires the employer to provide an insurance policy to cover employees deaths from any cause whilst employed with the employer. The insurance is not necessarily related to work. As French J in Wesfarmers stated at paragraph 78:

PN1268

The essential principle is that a matter pertains to the employer/employee relationship if it affects employers/employees in their capacity as such.

PN1269

We submit that this clause does not affect the employers and employees in their capacity as such. It is about matters having an indirect consequential and remote effect on the employment, thus is not a matter pertaining and on that basis should be struck. The next matter we take exception to is demand 65 which is health schemes. Commissioner, under this clause the employer is required to pay all costs for health schemes for employees and their families as deemed suitable by the union and the employees. The demand fails to pertain on two bases, first, as previously noted, benefits to a family of an employee need not have any connection with the employment relationship.

PN1270

In the Airly Coal decision Commissioner Bacon decided that demands which require the employer either directly or indirectly to provide benefits to members of the employee's families are not matters between the employer in the capacity of an employer and the employee in his or her capacity as an employee in a way that is direct. Secondly, as noted above, in relation to demand 14, inclement weather, again Senior Deputy President O'Callaghan in Nurses Midwives rejected as not pertaining a clause that allowed the union to determine its satisfaction with remuneration levels and then to terminate part of the agreement. We submit that this demand also allows the union to determine what health schemes or insurance costs are suitable.

PN1271

There is nothing in the demand to tie the insurance or the health scheme to the working relationship. For example, the union and the employees could determine that overseas travel insurance must be included in health insurance for it to be deemed suitable, even if the travel overseas was totally unconnected with the working relationship. Again we would submit that as drafted and as served the demand in relation to health schemes does not pertain and therefore should be struck from the log in its entirety.

PN1272

The next demand that we object to on this ground is demand 67 international conventions. Commissioner, the claim requires the employer to give effect to international conventions ratified by Australia. The claim makes no attempt to restrict the type of convention to which the employer must give effect. The claim therefore does not pertain for at least two reasons. The first, the requirements to comply with international conventions is political or a social matter and not one that relates to the relationship between the employer and employees in their respective capacities, nor is there any sufficient direct relationship as such.

PN1273

As previously noted, both McHugh J in Electrolux at paragraph 60 and
Callaghan J at paragraph 245 stated:

PN1274

The provision of an agreement does not pertain to the employer and employee relationship if it concerns political or social matters.

PN1275

We say this demand does address both political and social matters and therefore the authority of Electrolux does not pertain. Secondly, the range of international conventions which Australia has ratified makes it clear that this clause is about matters that have no relationship at all with the employment relationship. To name but some of the conventions that Australia has ratified in the past few years makes this clear, the convention on the safety of spent fuel management, the safety of nuclear waste management, convention for the conservation of Southern Blue Fin Tuna, the United Nations Convention against the illicit trafficking of narcotic drugs and psychotropic substances, there are a number, Commissioner.

PN1276

It's our respectful submission that a demand that seeks to require that Tomago comply with all international conventions is one which clearly does not pertain to the required subject matter and should be struck out in its entirety. The last matter that we object to on the ground of not pertaining is home based work. The basis of objection to that claim which is claim 70 and the log of demands is that firstly, the first two paragraphs properly considered relate to decisions by the union and its members and not about the relationship between the employer and employee. You will note that the employer shall not allow an employee to work from the employee's home except with the express approval of the union and the employees.

PN1277

Further, when the union employees approve and the employer is advised of those employees interested in home based work the employer shall facilitate such work and in addition providing all tools and equipment necessary, provided to home based employees wages and conditions of employment no less beneficial than those provided on site. Again the decision in Senior Deputy President O'Callaghan in the nurses midwives decision is relevant as the claim gives the union the right to determine to its satisfaction that the proposition that the employee seeks to work from home. The clause also concerns managerial matters, determine how and where work is to be performed in the business. On the face of the demand the effect of the demand is to prevent the employer from engaging employees to work at home without the union's consent and therefore the principles in Cox that we have referred to previously would have application.

PN1278

Accordingly we would submit that the provision as it is contained in the log does not pertain, it cannot be salvaged and therefore should be struck in its entirety from the log. Commissioner, they are the submissions in support of the second round of objection being those demands which are objected on the basis of not being matters to pertaining.

PN1279

THE COMMISSIONER: I'm sorry, just back to demand 70, it's just the first two paragraphs, Mr Boatswain? The third paragraph really is mentioned in
paragraph 2 anyway.

PN1280

MR BOATSWAIN: Yes. Well, the difficulty we have with severing, Commissioner, is that the operative clauses of the demand are one and two and that if one and two - - -

PN1281

THE COMMISSIONER: So it's the whole clause?

PN1282

MR BOATSWAIN: Yes, we have submitted the whole clause.

PN1283

THE COMMISSIONER: Yes. On the basis that you say one and two are not matters pertaining.

PN1284

MR BOATSWAIN: Yes.

PN1285

THE COMMISSIONER: And the other two paragraphs would have to go if I'm persuaded by your argument?

PN1286

MR BOATSWAIN: That is correct, Commissioner.

PN1287

THE COMMISSIONER: Yes. Whenever you're ready.

PN1288

MR BOATSWAIN: Thank you. In relation to the third ground of objection, they are addressed in clause 2.26 and 2.27 of TOMAGO1.

PN1289

THE COMMISSIONER: Sorry, of TOMAGO1?

PN1290

MR BOATSWAIN: TOMAGO1, our outline of submissions. The basis of the objection is a number of the claims on the grounds that they relate to matters contrary to law. These claims relate to matters contrary to law on two bases, first, the claims involve a contravention of the Trade Practices Act, secondly, a number of the claims involve a contravention of the Act, that is the Workplace Relations Act, in essence that they involve a contravention of Part XA of the Act. If I can stop there, Commissioner, the appropriate approach I would submit is that I would adopt the submissions of Mr Boyce in relation to the Trade Practices Act which he made yesterday in support of our objection on this ground. I do not think it is necessary to repeat those.

PN1291

Secondly, in relation to the contravention of Part XA of the Act, they involve essentially the contractors provision. I have already addressed you during the matter pertaining as to that element of the objection - - -

PN1292

THE COMMISSIONER: It's only the one demand?

PN1293

MR BOATSWAIN: Essentially that demand, yes and that demand I have addressed you on on the basis of it effectively being a preference clause and that's being its necessary intent and with reference to the Thiess Contractors decision that I referred you to. Again I don't propose to repeat those submissions in the context of this objection. Equally you will see, Commissioner, a number of demands which have been objected to in the schedule C on the basis that they are not allowable matters.

PN1294

THE COMMISSIONER: This is the section 89A argument?

PN1295

MR BOATSWAIN: Yes. What I would submit to the Commission is I would concede that there is authority in the Commission to suggest that it is open to the Commission to make findings of dispute even though the matters are not allowable. The basis of our objection - - -

PN1296

THE COMMISSIONER: That's Vice President Ross's decision that I think on transcript I think I did record the citation for that decision. I think the AMWU had it as a listed authority as well.

PN1297

MR BOATSWAIN: Our submission is however that it remains a relevant consideration for the purpose of your deliberation in relation to the objections that have been raised and the outcome of those applications based on jurisdiction and that is this way, Commissioner, that similarly to the approach that Commissioner Bacon took in that matter that was before him in Airly Coal, and I will address this is in more detail shortly, that having made the findings in relation to effectively the bulk of the demand that was the subject of the proceedings essentially he came to the conclusion that there were only a number of, I suppose, insignificant in the context of inoperative clauses that did not deal with any of the substantial matters of wages, allowances, hours, leave and the like as all of those had been struck out as either being fanciful or not matters pertaining in respect of the log that had been considered by him in Airly Coal.

PN1298

We respectfully submit that at the conclusion of your assessment if you accept our objections to the various demands on the same bases that we have outlined, that you will also be left with a situation where there will be a number of clauses that survive but those clauses will not deal with wages, allowances, leave or any of the provisions of substance and the Commissioner we will submit quite properly then assessed the log of claims that was then before him having made those findings and drew the conclusion it would be impractical for the Commission to then proceed to make a finding of dispute given what was left once the operative clauses had been struck.

PN1299

We would submit that it would be relevant for your consideration to take into account that what is left after the objections also includes demands that do not relate to allowable matters and therefore are matters that could not ultimately be the subject of an arbitrated decision by the Commission and we raised the non allowable matters in that context, Commissioner. Proceeding then with TOMAGO1, part 3 of the submission addresses onus of proof and we in that outline of submission refer to the authority of Toohey J that provides that the applicant bears the onus of establishing that the jurisdiction of the Commission has been properly enlivened and the applicant for that purpose of these proceedings is the notifier, Commissioner. As his Honour said in SPSF at page 288:

PN1300

It follows that when the Commission is faced with a challenge to the existence of an industrial dispute the onus does not shift to the respondent to demonstrate ...(reads)... that jurisdiction exists.

PN1301

We respectfully submit that that approach has been adopted and followed in this Commission. There is a prima facie approached which has been taken to paper disputes but essentially what that has been accepted as finding is that an evidentiary burden shifts to the respondent. The evidentiary burden we would submit has been satisfied by both reference to the two awards that we have tendered in the respondent's case, addressing for the purposes of the contemporary industrial standards and equally taking your attention to those facts and knowledge that you have in relation to this industry and this particular employer from your position with the Commission.

PN1302

Having discharged the evidentiary onus that onus is then shifted back to the respondent and I stress it is the evidentiary onus. The onus that is required to establish jurisdiction never shifts, as is clear by Toohey Js decision and it is our respectful submission that the applicant has not discharged the onus of establishing that the claims are genuine and capable of creating an industrial dispute within the meaning of the Act. Accordingly the jurisdiction of the Commission has not been enlivened by this application and the application should be dismissed.

PN1303

In conclusion, Commissioner, the test is for the Commission to be satisfied by the applicant, that is the notifier, that the demands in the log are reasonably attainable within the framework of negotiation, conciliation and arbitration in the foreseeable future or in due course. Further, that the claims pertain to the relationship of employer/employee and can lawfully be made by the Commission. If not, then the claim is incapable of giving rise to an industrial dispute within the meaning of the Act, assessed in terms of the relevant principles, we submit a high proportion of the claims contained in the log could not be contained in any dispute finding.

PN1304

While it is open for the Commission to strike out each claim individually the proper approach is to consider the log as a whole as otherwise the outcome would be impractical. Considered as a whole the log would be regarded to be significantly flawed to the extent that the log as a whole could not be considered to give rise to industrial dispute. In that respect, Commissioner, it would be appropriate for me to address you on a matter you raised with me yesterday. You will recall that you raised with me the Full Bench decision in terms of the issue of aggregation.

PN1305

THE COMMISSIONER: Yes. And that's an authority that the AMWU were relaying upon.

PN1306

MR BOATSWAIN: Certainly. If I can just address that point because it is a significant point we respectfully submit in relation to your assessment of not only the log but also the approach adopted by Commissioner Bacon in determining this matter. If I can take you to that decision, the Australian Industry Group v AMWU, I'll use the shorthand, and ANA Contract Staff, a Full Bench decision of Melbourne, 13 September 2002, print 921867. The issue of aggregation, as it's been described, is dealt with in paragraph 16 of that decision. The Full Bench in that matter says:

PN1307

As in other cases in which it is sought to challenge a final dispute on the basis that the written log of claims is not real and genuine ...(reads)... that it may be imprudent and short sighted.

PN1308

And I don't read on further other than to finish with the last sentence of that paragraph:

PN1309

Organisations cannot reasonably be expected to moderate ambit claims because the cumulative effect if they were all achieved at once would be economically unsustainable and industrially unrealistic.

PN1310

Now, it is our submission, Commissioner, that the principle of aggregation involves the assessment of a lack of industrial reality by first accumulating the various demands and then making an assessment as to whether they reflect industrial reality. As specifically referred to, the Commission Full Bench referred to the combining of the annual leave and public holiday provisions. It's our respectful submission that is different from the approach that has been adopted by Commissioner Bacon in Airly Coal on two bases and the first is demonstrated by a reference to his treatment of the wages claim which I believe is what prompted from memory your inquiry. In that regard I take you to paragraph 44 of Commissioner Bacon's decision to demonstrate the distinction. First the Commissioner says:

PN1311

In addition to the above -

PN1312

And the above is a listing of minimum wages claim -

PN1313

the payment of a number of allowances in these claims are bare claims. That is, an industry allowance of $400 per week. Payment appears to depend only on the ...(reads)... be considered individually -

PN1314

And I emphasise that -

PN1315

The fact that each is a bare claim that will be payable to every employee and each is to be paid for all purposes, it is open to conclude that each ...(reads)... attack by the employees.

PN1316

I think I indicated yesterday I think that is a typo, it should be employers. And he goes on to set out a table representing it. He then addresses in paragraph 45:

PN1317

The claim for 5000 per week as minimum bonus is clearly fanciful. The claim is so extravagant and unrealistic that it is inconceivable as to when such a ...(reads)... in the foreseeable future.

PN1318

He then continues in 46:

PN1319

The Commission has the same view of the amounts claimed for each of the allowances or payments.

PN1320

And again he refers to the fact that the allowance is payable for the fact of employment and he continues making findings there. Significantly he then goes to paragraph 49, having in paragraph 48 itemised each of the industry allowances which has described as fair claims -

PN1321

Each of the claims is fanciful and unrealistic. Accordingly none of the claims can give rise to an industrial dispute. In reaching this conclusion I ...(reads)... consideration of its genuineness.

PN1322

And I emphasise those words. He then notes at the balance of paragraph 49:

PN1323

By way of comparison there are other allowances claimed in the log about which the employers did not raise any objection. The amount claimed ...(reads)... in addition to the fact of employment.

PN1324

He then concludes in paragraph 54 of his decision:

PN1325

It is the Commission's view that the minimum wages and allowance claims, whether considered individually or collectively, are fanciful and ...(reads)... do not give rise to an industrial dispute.

PN1326

Now, we submit the difference there is that what Commissioner Bacon has done has involved the proper characterisation of the wages demand that was contained in the log. Now, this does not involve aggregation as referred by the Full Bench. In any event, the Commissioner made an assessment concerning the reality both as part of the wages demand and individually and found on both bases that the demands were fanciful. Now, we say significantly, as we have suggested, the principal aggregation involves an accumulation of all demands and a consideration of the accumulation log as to reflective of industrial reality.

PN1327

We have been very careful in our submission to not adopt such an approach and in fact the second basis that we refer to in relation to Commissioner Bacon's approach which we would respectfully submit is the appropriate one for the Commission to follow, is that we would describe it as viewing the log in totality as opposed to its aggregation and again that is clear when you look at the conclusion of Commissioner Bacon's decision which is at paragraph 128 and 129. We submit that this is the correct approach and if I take you to 128 of Commissioner Bacon's decision he says:

PN1328

There is a significant number of matters (claims) in the log which the Commission could not include in any dispute finding. These ...(reads)... long service leave and shift penalties.

PN1329

The next paragraph the Commissioner - sorry, I withdraw that. Paragraph 129 the Commissioner continued:

PN1330

The Commission has concluded that in the circumstances the proper approach is not to consider each claim individually but to consider the log as ...(reads)... does not give rise to an industrial dispute.

PN1331

If I stop there, that is the key difference. He makes it clear that he is not aggregating and then making an assessment. He has made the assessment on individual claims. Having made those findings the Commission then considers what he should do with the log having made findings in relation to each individual demand contained within the log in accordance with the appropriate principles and we would submit that is, as I said, a label that we would submit is either a holistic approach or viewing of the log in totality after the findings have been made in relation to individual clauses. That is a separate and distinct from aggregation. Going back to the Commissioner's decision he states:

PN1332

Further, the log taken as a whole is properly characterised as an attempt to enliven the jurisdiction of the Commission in order that the Commission may ...(reads)... is an industrial dispute.

PN1333

So again that is the second leg that has been - or approach that has been upheld by the High Court in the SPSF decision and in Riordan where that second aspect of attempting to attract the Commission's jurisdiction in weighing of a regulatory body fixing what wages it considers appropriate in the circumstances is one which is not permitted, cannot give rise to an industrial dispute. Again we submit that is an appropriate course to be adopted and it is one that should be adopted in this matter, not only because of the similarity in the various demands that are being objected to on the same grounds, which we have already addressed the Commission upon, but it is an appropriate way to deal with it so that there is not an impractical outcome.

PN1334

Can I also address that decision while I have it open, Commissioner. On the earlier pages before addressing aggregation the Full Bench in ANA Contract Staff undertook an assessment of the relevant principles established by SPSF and the Riordan decisions and the union in its filed outline of submissions which have been served on us attempt to, we respectfully submit, elevate the conclusions in this matter in relation to the appropriate test to have application to the submissions that we have filed and that which we have made to you orally. In essence the criticism seems to be captured in paragraph 14 of the decision where the Full Bench says:

PN1335

We think the submission which is outlined in paragraph 13 gives too little weight to the judgments of the other members of the court and ...(reads)... as determined by the Commission.

PN1336

Now, in that respect, Commissioner, in relation to the comments contained in
that - - -

PN1337

THE COMMISSIONER: What part was it I'm sorry/

PN1338

MR BOATSWAIN: That's paragraph 14 of the Full Bench in ANA Contracts.

PN1339

THE COMMISSIONER: Thank you. Yes.

PN1340

MR BOATSWAIN: It's our respectful submission that that criticism, and that is that criticism that the submission that was made gave too little weight to the views of other judges, cannot be applied to our submissions. We have extracted the relevant ratio of all of the judges in the SPSF and Riordan decisions including that of Kirby J. In fact we would submit that our submission as to the relevant principles that are obtained by an assessment of the judges firstly, is founded on the statement of general proposition by Kirby J in Riordan and that is as well as the other judgments made by the various High Court Justices in both of those cases.

PN1341

You may recall that we took considerable attention in formulating that to you on the first day of our submissions in respect of the test being whether there is a prospect that the demand can be attained through a framework of negotiation, conciliation and arbitration in the foreseeable future or in due course. It's our respectful submission that that formulation is in an amalgam and a combination of each of the principles enunciated by their Honours and in particular that passage of Kirby J which we identified in the Thiess Contractors Full Bench decision. It is also relevant to note, your Honour, that none of the other judges in the SPSF, in the Riordan decision expressly adopted or cited with approval Kirby Js citation - sorry, Kirby Js general propositions.

PN1342

We say not much turns on that other than the fact that we have deliberately and specifically adopted a comprehensive assessment of the High Court pronouncements on the relevant test and therefore the criticism contained in paragraph 14 of the ANA Contract Staff decision cannot be directed towards our submissions as to what is a relevant approach that you should take in assessing these claims. Finally before leaving that matter I also draw your attention to paragraph 15 of that decision and where the Full Bench talks of:

PN1343

As to the judgments to which we have referred indicate some generosity of approaches required when considering whether a claim can properly be described as fanciful -

PN1344

There's a reference to 3 per cent inflation and the like, but significantly they then turn to:

PN1345

The cost involved in the service of the log of claims and subsequent Commission process is not inconsiderable. The cost is one which registered organisations ought not be expected to outlay too frequently.

PN1346

Where, as in this case, a large number of employers are served with the log and those employers provide labour in a wide range of classifications to a variety of industries, that fact also is relevant in assessing the type and amounts of the claims made. We would just respectfully submit that it is relevant that the demand that is contained in the log that has been served here and served only on three employers and it does not appear to address a wide range of classifications to a variety of industries as contemplated by the Full Bench in that decision and that is a factor that we respectfully submit you should take into account in assessing the excessive nature of the demands that are contained in the log that is before you and would be relevant in determining that they are so extravagant and so excessive that they would have to be described as - or concluded to be fanciful.

PN1347

Accordingly, Commissioner, in conclusion we would submit that the approach that was adopted by Commissioner Bacon that we have referred you to, both in relation to assessing the appropriate demands and also his approach in concluding what to do in relation to the log based on the findings that he has made is the appropriate one and I can do no more than adopt almost as my submissions the conclusions made by Commissioner Bacon. As previously outlined we would submit that either on the basis of consistency related to those findings that he had made, or simply by the application of the relevant principles that we have taken to you in some detail, that you would find that the bulk of the demands contained in this log are so excessive, so unreflective of the industrial reality that they are both fanciful, they are not matters pertaining and otherwise as nominated are unlawful.

PN1348

For those reasons what would be left is the same situation that was confronted by Commissioner Bacon, a situation where it would be impractical for you to proceed further with what is left and in any event, on the basis that it is clear from the inference that we would have you draw from the notification clauses which I have addressed to you previously and the very nature of the log itself, that this is simply a demand that has been taken as a whole, is properly characterised as an attempt by the union to enliven the jurisdiction of the Commission in order that it may be regulate wages and conditions, that is impermissible and for that reason itself the entire log should be struck out. Thank you, Commissioner.

PN1349

THE COMMISSIONER: Thank you, Mr Boatswain, for those submissions. The Commission is going to adjourn. We will reconvene where we will hear the union's reply. Thank you.

PN1350

MS BOOTH: Commissioner, may I make these submissions to you? Commissioner, although I am very loathe to do so, understanding that it is the preference of this Commission to resolve this matter today, I am concerned of the large number of authorities that have been provided to us this morning. I am concerned that the luncheon adjournment is not going to be a sufficient opportunity for me to consider these authorities and provide a succinct response to positions put by Tomago. Commissioner, on that basis I wish to request a greater adjournment so we do have the opportunity to consider fully the position that's been provided by Tomago in this case.

PN1351

THE COMMISSIONER: Well, Ms Booth, I must say that's most unusual.

PN1352

MS BOOTH: Certainly, Commissioner.

PN1353

THE COMMISSIONER: The vast majority of the material has been filed. I think today there was only a couple of extra authorities, four, weren't there, four extra? The folder.

PN1354

MS BOOTH: Sorry, Commissioner. A large number of the authorities that have been provided in the supplementary list of authorities have not been previously provided to the AMWU.

PN1355

THE COMMISSIONER: Well, Ms Booth, it's the union's application so if you seek an adjournment - Mr Boatswain, do you have something to add in relation to that?

PN1356

MR BOATSWAIN: No, I have no submission in relation to that. It's a matter for the Commission.

PN1357

THE COMMISSIONER: Thank you, Mr Boatswain. Ms Booth, you contact my associate in regards to when the union want this matter listed and you'll have regard to Mr Boatswain's diary in that regard. It's a most peculiar submission. However the Commission stands adjourned to a date to be fixed.

<ADJOURNED INDEFINITELY [1.11PM]