C2005/4216, Transcript of Proceedings [2005] AIRCTrans 1798 (1 September 2005)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 12525-2

DEPUTY PRESIDENT IVES

C2005/4216

THE AUSTRALIAN WORKERS’ UNION
AND
VISY BOARD PTY LTD T/AS VISY SPECIALTIES
s.170LW - Application for settlement of dispute (certification of agreement)
(C2005/4216)

MELBOURNE

2.08PM, WEDNESDAY, 17 AUGUST 2005

PN1

MS Z ANGUS: I appear on behalf of the Australian Workers Union and with me this afternoon is MR D GRAY who is the responsible organiser, and MR K MOORE who is the site delegate.

PN2

MR L STEWART: I appear on behalf of the company.

PN3

THE DEPUTY PRESIDENT: Thank you. I'm not sure whose application this was. Was it yours, Mr Stewart, was it?

PN4

MR STEWART: Yes. It would probably be easier, your Honour, if I just give you a run through of where we're at. It is the AWUs application but I requested today's - - -

PN5

THE DEPUTY PRESIDENT: Okay, we will give you that.

PN6

MR STEWART: Yes, I requested the matter be brought on today, so it might be easier, also my involvement has been back somewhat in this matter so it might easier if I give you an update.

PN7

MS ANGUS: Or a back date.

PN8

MR STEWART: Or a backdate, as it might be. Your Honour, originally the notification to the Commission under section 170LW was made by the AWU and Ms Angus in particular on 1 August in which three matters were notified under the dispute settlement procedure of an EBA. Two matters are distinct in that they are arising in respect of the recently made but yet to be certified 2005 Coolaroo and Reservoir EBA and one of the matters arises in respect of the Visy Northern Agreement 2001. When I became aware of the matters and how they had been notified I though the best process would be to separate out those two matters and there's reasons for that, your Honour.

PN9

Firstly, the matter in respect of the 2001 EBA is distinct to two employees and both employees are here in the Commission today. It does relate to a payment that they have been receiving from the company and an ongoing entitlement to make a claim on an insurance policy. Given that it involves moneys to these employees we thought and agreed that it would be better to hear these matters and expedite them before I commence a period of leave next week and so that's why I asked the matters be called on. The other two matters are arising out of the newly made EBA and it was agreed during the negotiations of that agreement that because we couldn't reach a settlement on them that we would arbitrate those matters some time later.

PN10

They involve some 400 plus employees and they don't have a direct impact on anyone with any urgency and so what we would be seeking today is to have some directions set down in relation to those two matters, and I've spoken to Ms Angus about that, and we're in agreement that we could probably narrow the Commission's time by committing a lot of our arguments to writing and submissions on those two matters and so today what we'd be proposing would be to firstly set some direction dates with yourself in your calendar for the other two matters and then thirdly, for you to hear the arguments we have in relation to the third matter under the 2001 agreement.

PN11

THE DEPUTY PRESIDENT: All right.

PN12

MR STEWART: In respect of the dates for arbitration, your Honour, what I would be seeking is that there be some directions from yourself about the applicants filing and serving the submissions and then for the company to file and serve some submissions in reply.

PN13

THE DEPUTY PRESIDENT: Is there likely to be witness evidence in respect of those other matters, Mr Stewart?

PN14

MR STEWART: Look, it's hard to tell at this stage, your Honour. To be completely honest, I haven't gone into the detail of the matters at hand to know whether or not evidence would be required.

PN15

THE DEPUTY PRESIDENT: All right.

PN16

MR STEWART: I did in my discussions with Ms Angus say that I think a lot of it could be narrowed through submissions, but whether or not we would require evidence I am not sure at this stage.

PN17

THE DEPUTY PRESIDENT: All right. So if there is a requirement for evidence then you would file those submissions and witness statements by whatever dates we decide on?

PN18

MR STEWART: That's correct. Your Honour, what I would be proposing is that we have - I don't return until the start of October and if we could have a period until say the latter half of October for the filing and serving of submissions with then a hearing date some seven to 14 days thereafter.

PN19

THE DEPUTY PRESIDENT: Sure, okay. Do you want to briefly go off the record and we will see if we can set those dates up and then you can go back on and deal with the other matters. We will go off the record just briefly.

<OFF THE RECORD

PN20

MR STEWART: That takes care of the first matter now we are back on the record. The third matter, which I thought before I allow Ms Angus to rise and to put her opening comments to you, I thought it best if I just give you some understanding of it because it wasn't actually outlined in the original application dated 1 August. It's in respect of two employees from the Visy Board Coolaroo site, Mr Nguyen and Mr Leao, and in essence the dispute involves the interpretation of the wording of an EBA which is an EBA which has now gone past its nominal expiry date and is about to be replaced. So I thought it best if I just give you a copy.

PN21

MS ANGUS: I mean I don't want to play sort of silly procedural games here, but it does seem somewhat inappropriate that Mr Stewart be running arguments to you on the basis of an application that the AWU put to essentially counter an argument that you're pre-empting. It is exceptional and somewhat of an oddity in the context of an applicant - - -

PN22

THE DEPUTY PRESIDENT: Are you objecting to it, if you are, tell me, Ms Angus, or are you just simply making - - -

PN23

MS ANGUS: Well, can I foreshadow that I will object sort of within a minute or two. I'm just not quite sure whether Mr Stewart intends to actually run his arguments now, in which case we object, or if he is simply putting aside some procedural matter first of all for convenience sake.

PN24

MR STEWART: I'm doing nothing more than the latter and was going to suggest that if you didn't have a copy of that EBA, because it's expired it might be worthwhile if I give you one.

PN25

THE DEPUTY PRESIDENT: Yes, it would be.

PN26

MS ANGUS: I don't object to that.

PN27

MR STEWART: That was the only intention. So there is one matter and that is that we come before you under some relevant undertakings that were given by the union and myself and that was that we would expedite this matter, as I indicate earlier, and the undertaking which I want to put on the record that there would be no industrial action at the site, which I have discussed with both Mr Moore and Mr Gray in relation to the outcome of this matter. So I just put that on the record and that's the only procedural matters I want to put forward.

PN28

THE DEPUTY PRESIDENT: Okay. The agreement, is that agreement the Visyboard Pty Ltd Coolaroo Enterprise Agreement 2001, is that the one you're referring to, 24 October 2001?

PN29

MS ANGUS: Yes, it is, your Honour. It's the 2001 agreement, clause 16.

PN30

THE DEPUTY PRESIDENT: Yes, it was certified by Commissioner Whelan, is that the one?

PN31

MS ANGUS: It is. That's the one.

PN32

THE DEPUTY PRESIDENT: Yes.

PN33

MS ANGUS: Do you have a copy of that?

PN34

THE DEPUTY PRESIDENT: Yes, I do have a copy of it.

PN35

MS ANGUS: And the clause itself that we're relying on is actually outlined in the notification as well.

PN36

MR STEWART: Sorry to interrupt again, your Honour, but I just thought that I better note that off the Commission's web site today I printed that again and it's dated 14 August. It is Commissioner Whelan but it's Visy Industries Northern Enterprise Agreement 2001 entitled.

PN37

MS ANGUS: No, it's Coolaroo.

PN38

THE DEPUTY PRESIDENT: That's a different one.

PN39

MR STEWART: I think the clause is exactly the same.

PN40

MS ANGUS: Yes.

PN41

THE DEPUTY PRESIDENT: This is the AG2001/6170.

PN42

MR STEWART: No, I'm pretty confident the clause is exactly the same so I'm happy to proceed because I understand the clause.

PN43

THE DEPUTY PRESIDENT: Okay, fine.

PN44

MS ANGUS: Your Honour, thank you. I think up until now that's relatively uncontentious. There are three issues, it is one issue that we want to get your assistance on today and that does relate to clause 16 of the Coolaroo enterprise agreement which is identical in terms to the one that Mr Stewart is looking at himself. Your Honour, I think the only thing that Mr Stewart said so far this morning or this afternoon that we'd take issue is that it relates to two employees. That may be the case at the moment but I think in essence we have a different interpretation, or at least as we put it, we had a consistent interpretation of how that clause operated until about three weeks ago.

PN45

So while two employees are directly affected at the moment it may be that because we are now diverging in our views in how the clause should be interpreted that it may affect more employees in the future.

PN46

THE DEPUTY PRESIDENT: Yes.

PN47

MS ANGUS: That clause, your Honour, you did say you have got a copy there.

PN48

THE DEPUTY PRESIDENT: Yes. Clause 16 you said?

PN49

MS ANGUS: That's right. It's the second half of that clause. There's really three things that I want to do today, your Honour. Firstly, we would like to give you a short background to the inception of the clause, how the clause came into being, and I think it's fairly uncontentious history and Mr Stewart will tell me otherwise, which is why we're not doing it in a more formal evidentiary sense but just to outline for the Commission's benefit. Secondly, I want to talk you through the clause itself, and thirdly, we would like to introduce you just briefly to the two people in the back who are two case studies if you like, two people who fall within that clause and as a result of diverging interpretations of that clause are now seriously disadvantaged.

PN50

So, your Honour, first of all by way of background to that clause, salary continuance which is provided in that agreement is available for employees where they have an accident, an illness, an injury, a sickness, anything that prevents them from their usual work. It started quite some time ago in 1998, it's the first agreement that you'll find salary continuance within any of the Visy agreements, and it is essentially is an insurance policy put in place with the premiums paid by Visy that provides employees a percentage of their income for an ongoing period of time, subject to certain events.

PN51

The first as I pointed out, the first agreement that it exists in the Visy agreements as a whole, or this agreement, we will focus on this agreement, is in 1998, which is the agreement preceding the one that you're looking at. We don't want to over complicate the facts in this arrangement so we're focusing only on these provisions. But in essence the 1998 agreement the arrangements were entered into by Visy with Citicorp Life was the insurer who provided then coverage for employees and the wording of the clause was where the employees were unfit to do their job they would receive 90 per cent of their ordinary income and that was made up of 75 per cent income, 15 per cent superannuation, and so employees prior to 30 June 2001 would be covered by the Citicorp Life insurance policy, which has now expired, and then in the course of the next EBA that comes into place in 2001, which is the relevant agreement for today's proceeding, the Citicorp Life and Visy concluded their contractual arrangement.

PN52

Citicorp Life is no longer the insurance provider for employees post 30 June 2001 and the new provider is Alliance and they provide then coverage under this existing, the current enterprise agreement for all employees who are sick, injured, have an accident that makes them unable to work. All employees from 30 June 2001 onwards are covered under a different insurance arrangement scheme with a different provider. The terms of that coverage changed slightly and what happens in essence, and I'll go to the details of the clause in a moment, what happens in essence under the Citicorp insurance period, where employees are unfit for work, and that's the language of the clause, where they're unfit for work Citicorp will provide them with insurance cover indefinitely or until a number of events, either they turn 65, they return to work or they move to the superannuation totally and permanently disabled category of the same insurer.

PN53

So it's Citicorp provided the insurance for the salary continuance and also provided the insurance under the superannuation scheme for totally permanent and disabled. In the post, in the 2001 onwards period we have a different arrangement, a modified arrangement. Alliance provides coverage for a two year period and then at the expiration of two years Visy provides its own coverage, subject to certain circumstances, provides its own coverage for the post two years, for the employees who require salary continuance after a two year period. Okay. So we have a number of players here, your Honour, who are relevant, aside from the employee him or herself who is subject to these provisions, these salary continuance provisions, there is Citicorp, the original insurance provider who is now no longer the insurance provider, there is Alliance who is the current insurance provider, there is Visy themselves and Visy assumes coverage after a two year period, and then there is Citicorp again in a different capacity as the superannuation insurer who is the body that forms an assessment about whether an employee is totally or permanently disabled.

PN54

THE DEPUTY PRESIDENT: Okay. So Citicorp retain the T and PD part, do they?

PN55

MS ANGUS: They did, correct, as the insurer for the superannuation fund.

PN56

THE DEPUTY PRESIDENT: Yes.

PN57

MS ANGUS: That's I think the uncontentious background but Mr Stewart will correct me if that's not uncontentious. The clause itself, your Honour, and if I may, I will actually just read through it so that it's fresh in everyone's mind. There's a couple of uncontentious parts that I'll put to one side. There's a 30 day waiting period, the company pays for the premium of the policy. They're not matters that are at issue today. The clause itself though in essence provides the following:

PN58

A maximum duration of cover by the insurer will be a two year period. At the conclusion of the two year insurance policy the insurer shall advise the ...(reads)... by workers compensation or the insurer.

PN59

So we have in essence sort of three steps, three tiered, this is how we would put the clause to you, your Honour. There's a maximum duration by the insurer. We know that's Alliance for a two year period. At the end of the two year period what happens is that the insurer and the company have discussions and they advise each other, that's incidental to us or the obligations under the EBA, about the status of the claimant. What is relevant to us in terms of an obligation on the employer is that a claim for a TPD is outstanding, and we say that that's actually quite a specific term, that describes a formal process where an employee lodges a claim with the Superannuation Board and on a monthly basis there is a board of medical assessors who determine and the insurers to the superannuation fund, they determine monthly on the basis of the claims put to them whether or not an employee is totally and permanently disabled.

PN60

If a claim for TPD is outstanding, or if there is a probable return to work, then the company shall continue to make ongoing payments and those ongoing payments occur until either the employee is aged 65, or declared incapacitated by either two formal bodies, and that is workers compensation or the insurer. Now, I have deliberately tried to sort of step everyone through it because it is important that we know what the words say and so in big picture sense we have an arrangement that was agreed to over two, although in modified form, over two agreements we have an arrangement where an employee would continue to have their salary maintained until either one of these things happened. Either they returned to work or they turned 65, or they were assessed as totally and permanently disabled on the basis and therefore shifted off Visy's books and onto, if you like, Citicorp, the insurer's superannuation books on the basis of having their claim properly assessed according to this medical tribunal and then determined as totally and permanently disabled.

PN61

That process, as I have said, that's about a monthly assessment process. That's at the employee's elective and that a process takes about three to four months. Now, until about three or four weeks ago - - -

PN62

THE DEPUTY PRESIDENT: Sorry, isn't there is a fourth, Ms Angus, just on those words? If there is no T and PD claim outstanding, so presumably there's a T and PD claim that's been dealt or may never happen or else has been in and been dealt with so it's no longer outstanding, but there is no probable return to work, what then happens?

PN63

MS ANGUS: Well, perhaps it's in that grey area that is the dispute between the parties because our view is that given a claim for a T and PD is in fact a - that is a defined process. An employee has to lodge a claim, it's subject to a panel, they make their assessment, if that employee is then declared by that panel T and PD, then they would full outside of the scope, they would no longer receive salary continuance.

PN64

THE DEPUTY PRESIDENT: Yes, so they would pick up the T and PD benefits.

PN65

MS ANGUS: Instead, and the T and PD benefits I think is three times their ordinary salary. In circumstances where an employee has not elected to have their claim assessed under that board then there is some likelihood or some probability at some stage of a return to work, the salary is maintained for until either the year 65 or until they return to work.

PN66

THE DEPUTY PRESIDENT: Yes.

PN67

MS ANGUS: So I think what I heard your Honour say was that there's a fourth. I don't think we'd put it that there's a fourth. There's an area where an employee has not applied, either chosen not applied to have their status assessed as T and PD, or they may apply at some future date, but in any event, they are still eligible for ongoing payments until they then elect to proceed to that sort of assessment. So that's how we would understand that clause I think. I think that addresses your question.

PN68

THE DEPUTY PRESIDENT: Well, carry on. It's sufficient at this point in time. I'm not sure that it does totally. I mean I think ultimately you have to define what you mean by an outstanding claim for T and PD.

PN69

MS ANGUS: Okay, we can do that. An outstanding claim or a T and PD is a claim where that has commenced, ie. the employee has elected to have their status assessed and the decision is pending.

PN70

THE DEPUTY PRESIDENT: Yes.

PN71

MS ANGUS: Either because they've applied but not have it decided, or because it's still in the process of being determined.

PN72

THE DEPUTY PRESIDENT: So if it's been decided, if there has been a claim and that claim has been decided and it's been decided in the negative, such that the claim for T and PD is disallowed, then the claim is no longer outstanding?

PN73

MS ANGUS: And then they would be eligible for salary continuance on that basis.

PN74

THE DEPUTY PRESIDENT: But only on the basis that there's a probable return to work. So if there was no probable return to work, the claim has already been dealt with for T and PD and it's been knocked back, but in the instance where there is no probable return to work, how do you deal with that?

PN75

MS ANGUS: Obviously there's so many different scenarios that it's hard to work out how the clause applies to each of those.

PN76

THE DEPUTY PRESIDENT: Yes.

PN77

MS ANGUS: I am just being told that we believe there have been examples of instances where people have had their case assessed, found that they were not T and PD and then have gone back on salary continuance, or stayed on it.

PN78

THE DEPUTY PRESIDENT: But I mean at the moment you're dealing with the clause and what the clause says and I think what you were doing,
Ms Angus, when I rudely interrupted you was giving me scenarios that could occur and you said there were three scenarios and it just occurred to me on reading it that depending on how you define an outstanding claim then there may be a fourth scenario, and that's the one that I've just put to you.

PN79

MS ANGUS: Yes.

PN80

THE DEPUTY PRESIDENT: That if the claim is not outstanding and has been dealt with and there is no probable return to work, and I admit that becomes an assessment in itself by someone presumably, but if there is no probable return to work then the criteria for payment of the salary continuance no longer would apply, it would appear.

PN81

MS ANGUS: Well, I see Mr Stewart nod his head which doesn't invite me to respond in the affirmative at all. Perhaps the way - - -

PN82

THE DEPUTY PRESIDENT: I'm merely just asking the question at this stage but I've not even read the clause before.

PN83

MS ANGUS: Yes.

PN84

THE DEPUTY PRESIDENT: But it just occurred to me as you were speaking about scenarios.

PN85

MS ANGUS: Yes. Sorry, I'm having words in both my ears, apologies,
your Honour. We are confident that there is a precedent, there are practices in the past of people who have - that this clause has been interpreted in a manner by the company as well as by ourselves to mean that either a claim is outstanding which can mean anything from it hasn't been applied, application has not been made, it's been but not yet resolved, or it's been made but rejected but maybe again made at some future time and therefore in that broader sense is outstanding.

PN86

THE DEPUTY PRESIDENT: Yes. Well, I must say, the scenario that I've put to you, which as I say just occurred to me in reading it now, is one that seems a little bit odd in that on the one hand if somebody had a T and PD claim rejected, that is, the insurance company and their medical assessors found that the person was not totally and permanently disabled, but somebody else assessed or even the same people assessed that there was no probable return to work, there seems to be - - -

PN87

MS ANGUS: There's a gap.

PN88

THE DEPUTY PRESIDENT: There seems to be a bit of a contradiction inherent in that scenario. But it's not necessarily a fatal contradiction in that it depends upon, I suppose, the medical criteria that apply to T and PD, and there would be medical criteria that applied to T and PD, as opposed to some doctor or doctors saying something about probable returns to work and those two things may vary. The criteria may vary.

PN89

MS ANGUS: Yes, I have two responses and I hope I will remember my second by the time I get to it. We have no objection to the medical panel of that insurance body, medical panel making a determination about T and PD one the claim is before them.

PN90

THE DEPUTY PRESIDENT: On T a PD, no.

PN91

MS ANGUS: And we have never had a dispute about the terms of that. We do have an issue about private doctors making judgments about T and PD and then Visy - - -

PN92

THE DEPUTY PRESIDENT: No, but they doesn't suggest that that's what happened here.

PN93

MS ANGUS: That's point 1. No.

PN94

THE DEPUTY PRESIDENT: The only suggestion in this about any assessment other than a T and PD assessment is this suggestion of a probable return to work.

PN95

MS ANGUS: And the other point that I want to make, your Honour, is that it's our view and it's the way the clause has been interpreted up until this point, that simply put it's one or the other.

PN96

THE DEPUTY PRESIDENT: Yes.

PN97

MS ANGUS: You are either T and PD according to what we have determined is the authority, which is this superannuation board, or there is a probability of a return to work.

PN98

THE DEPUTY PRESIDENT: In other words, if you're not totally and permanently disabled there must be a probability that you will return to work at some time.

PN99

MS ANGUS: That's it, your Honour.

PN100

THE DEPUTY PRESIDENT: That's the position you're putting.

PN101

MS ANGUS: Yes.

PN102

THE DEPUTY PRESIDENT: Yes, okay.

PN103

MS ANGUS: And that certainly has been the practice for the past seven years for the operation of this clause, is that - well, that's the way both parties as we understand, and with some generosity on both sides, have interpreted this clause. So our view and perhaps this is the source of contention between the parties, is that crucial to that process the intention of the clause always - the intention of the parties rather in relation to that clause, always was that employees themselves in this situation could elect to either commence the process of having their claim assessed as T and PD or to continue on salary continuance on the basis that they would probably - there was some hopefulness that there was a probable return to work at some later stage.

PN104

It was that elective that was crucial to our interpretation of the clause and what we understood was in fact the shared interpretation of the clause until three weeks ago and now we understand that the company has changed its view and is of the view that if any doctor no longer just with this sort of - where once we had privilege this authority was the body that would make the assessment as to T and PD, now if there's any party along the way that declares an employee T and PD then payments will cease, I think is - well, Mr Stewart can run his own argument, but I think that's the essence of the dispute between the parties, is that we had always understood that it was at the employee's elective to have their assessment - - -

PN105

THE DEPUTY PRESIDENT: I am perhaps misunderstanding you. If there's a T and PD claim it must be presumably assessed by the relevant insurer, in this case Citicorp. It couldn't be assessed by any doctor, surely?

PN106

MS ANGUS: No, that's correct, that is true. The issue is though what gives rise to a T and PD claim and the company is keen to, if you like, without wanting to be too emotive in the language, is keen to force people onto making these claims in order to get them off their books, in order to get the Citicorp insurer to pick up the tab rather than Visy continuing to maintain their salary under these provisions.

PN107

THE DEPUTY PRESIDENT: Right.

PN108

MS ANGUS: So there's a sort of a push/pull between Visy's attempt to encourage people onto T and PD and our interpretation of the clause which is, well, they may elect to have their case assessed as T and PD, or they may maintain their salary with a probable view of returning to work at some stage.

PN109

THE DEPUTY PRESIDENT: All right. Well, perhaps it's a good time that you tell me about the live cases you have got.

PN110

MS ANGUS: Indeed and there are two relevant ones at the moment, if I can introduce you to Lecio Leao in the back and Van Nguyen here also and I won't go into too much, your Honour, although if it assists at all we are happy to file some written material if that need be, but we just say that at this stage but don't necessarily press that, simply to say that - if your Honour would bear with me. Yes, okay. Lecio, and I’m sorry to put sort of obvious details in a sense, it's feel a bit crass, but Lecio is 61. He has been off work since last February and had a cardiac arrest two years ago or a number of items but most particularly a cardiac arrest. He was at - what, about a year ago or some time previously was assessed by a doctor as T and PD, a doctor.

PN111

Not this authority that we say is the body that's most appropriate to assess these sort of claims, but was assessed as T and PD and has since had an operation some two months ago on his heart. The prognosis is good and in fact he is hopeful that in fact that sort of assessment by his doctor in terms of his doctor's view about his own progress is that that circumstance, that assessment that the doctor has personally made is likely to change on that basis. But nonetheless, on a form his doctor wrote at some stage TDP, okay, issue 1, and on that basis the company is keen to cease payments on that basis.

PN112

THE DEPUTY PRESIDENT: But that's not a Citicorp assessment of his - - -

PN113

MS ANGUS: No, that is a not a Citicorp assessment. That is one private GPs assessment of his claim. The second case is Mr Van Nguyen who has had a back injury, who's been off on WorkCover some two years ago and has still got a back injury. He is in his late 40s. His doctor also individually, his individual GP, knowing - and we are talking about individual GPs out in the suburbs who don't know the background necessarily of what provisions are contained in enterprise agreements, who don't understand the industrial implications of the assessment that they make, but nonetheless do use the language and in his circumstance,
Mr Nguyen, in his late 40s has been declared T and PD and the company's view is on the basis of that single assessment his payment should cease as well.

PN114

So here we have two examples of people, which is actually I think quite a tallying example because in Mr Leao's case, I'm sorry about the pronunciation, he had been assessed as T and PD but is likely actually to have that assessed overturned, or whether there is a likelihood or not, at least his prognosis is now good and that situation may now change, its influx. In the other instance we have Mr Nguyen who has also been by an individual GP assessed as T and PD, but he is 41 and he has got another 25 years of productive work in the labour market to go and the critical element of the company's assessment, the company's interpretation of this clause, is that both of these employees would then be taken off its books, they would be handed over to Citicorp insurer's total and permanent disability and they would be then paid out and that would be the end of any productive working life that might be available to them

PN115

So in essence really that's our argument. Our argument is that the clause is being interpreted by Visy now in a manner that enables them to put employees off their books that were never intended to be put off their books. The clause had been understood jointly by the parties as a provision that enabled ongoing maintenance of salary unless one of three circumstances occurred, an employee turned 65, an employee returned to work or, and the contentious one, an employee, we say, had chosen to lodge a claim before this body that was in a position and an agreed position to make that assessment and that assessment was that the employee was totally and permanently disabled, in that context they would be removed from the books and that would, to be prude, your Honour, that would be the end of their working lives.

PN116

THE DEPUTY PRESIDENT: Yes. The circumstances with both of these employees is that there has been, at least as I understand you, there has been no claim for total and permanent disability.

PN117

MS ANGUS: Correct. Neither of them have sought to have their circumstances assessed because both of them believe that at some stage they will go back to work.

PN118

THE DEPUTY PRESIDENT: There has simply been the view of a particular practitioner of their particular condition and they have characterised that as being totally and permanently disabled but in what sort of context you don't know.

PN119

MS ANGUS: That's correct, and without any awareness of the industrial implications of what - - -

PN120

THE DEPUTY PRESIDENT: A claim for T and PD in the context of this clause you would say is a claim for T and PD in the context of the insurance company or the insurance policy that covers totally and permanent disabled?

PN121

MS ANGUS: That's right. That is a precise term, that to lodge a claim for T and PD is a process. That is naming a process. It is not where someone decides that it's T and PD. In support of that you can see the final sentence of the clause as a whole, is that the company continues to make payments until declared total incapacitated by either workers compensation or the insurer. In that instance we may the insurer is the superannuation insurer that does that formal assessment.

PN122

THE DEPUTY PRESIDENT: That being the case, if there's no claim for T and PD, what do you say the company is now trying to require?

PN123

MS ANGUS: They're trying to then say, "Well, if there's no claim for T and PD, but we think you're T and PD, therefore it's improbable you'll return to work and so on that basis payments should cease," whereas we say that's not the case. If there's no claim for T and PD that has been lodged by the applicant, by the employee, then it's because they believe that there's the probability that they'll be returning to work at some stage and so on that basis the salary should be maintained under this clause.

PN124

THE DEPUTY PRESIDENT: It's a one or the other circumstance.

PN125

MS ANGUS: That's right. They are our submissions. Our view is that more generally the consequences for employees in this instance are dire if the clause is interpreted in a more narrow way as the company is putting. Medical technology changes. We've got an example here of circumstances because of an operation that occurred. Circumstances changed. We have another 25 years of active opportunities for Mr Nguyen to be available to return to work. The alternative interpretation of the clause is that these people are shunted off to permanent disability and will then lose an opportunity to return to work at some future stage. We consider that unfortunate. In essence, they're our submissions.

PN126

THE DEPUTY PRESIDENT: Do you concede, Ms Angus, that the company has an entitlement by some means or other to be reassured that in the event that there is no claim for T and PD, that there is a probable return to work in order for it to continue its payments?

PN127

MS ANGUS: We do accept that. We accept that if there's no claim for T and PD then there is some probability of a return to work.

PN128

THE DEPUTY PRESIDENT: What I'm asking you is, do you concede that the company is entitled, if there is no claim for T and PD, the other circumstances that will continue payments is that there is a probable return to work?

PN129

MS ANGUS: Yes.

PN130

THE DEPUTY PRESIDENT: It's one or the other, a claim for T and PD or a probable return to work. I'm simply asking, do you concede that the company is entitled to be reassured by some process or other that there is a probable return to work?

PN131

MS ANGUS: We do accept that and in fact that has been dealt with in this clause. The final sentence is that:

PN132

The payment is subject to ongoing independent medical assessments and participation in return to work programs where appropriate.

PN133

That has been quite expressly dealt with, that issue of what about people in the gap. Yes, the company is entitled to either - if employees are not electing to have their claim assessed as T and PD, they are entitled to have some sort of expectation of a return to work, a probable - - -

PN134

THE DEPUTY PRESIDENT: Is there any criteria that you're aware of that determines probability?

PN135

MS ANGUS: I don't think that the discussions at the commencement went into that detail and I don't think there are such criteria, other than that joint commitment that there be ongoing independent medical assessments and that there was a compulsion on people to engage in return to work programs if they are appropriate and that that be the assessment process.

PN136

THE DEPUTY PRESIDENT: It seems a probability question could become problematic.

PN137

MS ANGUS: Yes.

PN138

THE DEPUTY PRESIDENT: Go ahead.

PN139

MR STEWART: Thank you, your Honour. Firstly, I best put on the record that the joint interpretation Ms Angus was saying existed is not necessarily so and I'll take you through my interpretation of the clause which is only different in a couple of very small aspects, some of which your Honour has already gone to.

PN140

Both the employees in question, Mr Nguyen and Mr Leao suffer injuries which restrict them from any interaction in the workplace. There is no return to work interaction with these employees. There is only what Ms Angus says now, which is not supported by any medical reports of any doctor that there's some possibility now, I think was the word she used, in the future for Mr Leao. That goes very much to the heart of the nature of an entitlement to have some understanding of where the two might lie that you're referring to at the end.

PN141

I will give you some of the background in respect of these two employees as well, as to what the company did, because Ms Angus says there is a change in the way we are interpreting the clause. I don't accept that, your Honour. There might be, for any number of reasons, industrial or otherwise, why the company might have continued payments in circumstances where someone was TPD in the past, but that doesn't change the nature of the words on the page. There's any number of authorities, Goldberg J, I think, in the Amcor decision spoke about the words on the page. We don't say that we have changed our interpretation at all.

PN142

There were meetings called with respect to both these employees on 23 June to discuss their claims. The reason that that happened is because in accordance with the clause IUS, who are the underwriter of this insurance policy, notified the company, as they are meant to do, that the 2 years of the payments had ceased. At that point, what happened was that an assessment of these employees' files was undertaken. On the file we have an absence of these employees for over 2 years and medical evidence, which I have copies here, both saying that these people are TPD and there is no probability of return to work.

PN143

On that basis we read the clause and very correctly go through the same stepped procedure that Ms Angus took you to, that there is no claim outstanding because no claim has been made. We say that just a plain English interpretation for a claim to be outstanding, a claim must have been made.

PN144

There is no probable return to work because the medical evidence that we have on the employees' files says there is no probability of return to work. What we do then is, we say okay, well, in accordance with the clause our requirement to continue payment to this person is only to be continued in the event that they make a claim for TPD so that a claim is outstanding. We brought the employees in with their union organiser Mr Moore and we said to them, "Here are the claim forms. We're happy to assist you to fill them out and in fact we'll extend the period of your payment for another ongoing period so that you can fill them out."

PN145

Following that the reply from both employees and their representative was that, "We're not making a claim because if we don't make a claim you have to continue to pay us to age 65." That is the point of which we are in dispute in relation to Mr Nguyen and Mr Leao.

PN146

THE DEPUTY PRESIDENT: Okay. It brings me back to a question that I was asking Ms Angus. This issue of probability, how do you say that's addressed in a consistent fashion? It would seem to me that you could get as many medical opinions about that as there are doctors almost.

PN147

MR STEWART: Yes, and that's a fair point, your Honour. We would say that it's actually already contemplated within the general words of the clause in that it's an involvement in a return to work plan. That is the basis upon which there is an ongoing medical assessment. That is the basis upon which the company continues to make payment. It's recognised that in circumstances where there is a long return to work, back to full fitness, the employees are going to need full payment throughout that period. It's the involvement in the return to work plans and the ongoing medical assessments that gives rise to that scenario that you're referring about some probability existing.

PN148

You're absolutely correct, it could change from doctor to doctor if a particular employee was to see a number of doctors. We could get a number of different definitions. What we saw when we opened the files of these particular employees is that there had been no return to the workplace at all in over 2 years. There was no return to work plans entered into at all for these employees and the only medical evidence we have is that they have no probable return to work and in fact they are TPD. With that medical evidence in place we interpret the clause that way.

PN149

THE DEPUTY PRESIDENT: We probably need to be a little bit careful about that term because on the one hand there's the use of it in a generic sense, totally and permanently disabled in some sort of general way, or alternatively there's totally and permanently disabled in a particular context and the context is a claim on a particular insurer against a particular criteria. I think it's not particularly contentious to say that the clause is probably clear enough in that it puts T and PD into a context and that context being totally and permanently disabled against particular criteria within a particular insurance policy, not totally and permanently disabled because Dr Joe Blow simply uses that terminology.

PN150

MR STEWART: There's no dispute from the company on that point, your Honour.

PN151

THE DEPUTY PRESIDENT: Which means you can almost put that aside as to whether they're totally and permanently disabled or not because the only sense that T and PD makes in this context is T and PD in the context of Citicorp and their criteria. You really come back to, don't you, the issue of probability because T and PD is then pushed aside, there's no claim for it, it's an issue then of probability.

PN152

You say then, while the company looks at the file and sees comments by doctors, including the comment that we have just spoken about, and the company takes a view that based upon that there's no probability for a return to work and therefore no access to salary continuance. That's correct, isn't it?

PN153

MR STEWART: Where they have not been engaged in any return to work plans or undergoing any regular medical assessment, that's correct.

PN154

THE DEPUTY PRESIDENT: You're simply saying, "The evidence that is before us" and I'm purposely going to leave the T and PD out of it because T and PD in the way I'm reading this, applies only to that insurance scenario, so there is no T and PD claim here. The company looks at this and says, "Okay, well, what's the probability of this person returning to work because we need it to be probable, that is more likely than not, that the person will return to work to be entitled to be continued to be paid."

PN155

MR STEWART: That's correct.

PN156

THE DEPUTY PRESIDENT: "The evidence that is before us in the way of what's on the file is that that is not probable and therefore we will stop payment." That's essentially the company's position.

PN157

MR STEWART: That's correct, your Honour.

PN158

THE DEPUTY PRESIDENT: If that was the scenario - and I'm speaking just on what's occurring to me at the moment. You refer to independent medical assessments further down. Have there been any of those done?

PN159

MR STEWART: Yes, there are.

PN160

THE DEPUTY PRESIDENT: Subsequent to you coming to this conclusion?

PN161

MR STEWART: Yes, your Honour. In fact on a periodic basis, I think monthly, but I'll stand corrected, the insurer who is making the salary continuance payments for the first 2 years of that injury and absence from the workplace, requires medical assessment being provided.

PN162

THE DEPUTY PRESIDENT: That's hardly independent, is it, if done by the insurer.

PN163

MR STEWART: It's from the employees' own doctor.

PN164

THE DEPUTY PRESIDENT: From the employee's own doctor?

PN165

MR STEWART: That's correct. We receive copies of those reports. I really think we're getting to understanding the clause now and how it works. Rather than labour the point I'll go to the way that the position on the union's interpretation of the clause would be. It has been put in the meetings I've had with the employees that in circumstances where there is no participation in any return to work plans and all the employees' own treating doctors say that there is no probable return to work, that that of itself doesn't mean that at some point in the future that might change, "But we don't want to make a claim for TPD, we want to just sit back, sit and do nothing because we have no ability to work, and receive payment until age 65."

PN166

I come back to the joint interpretation of how we got to this clause. Your Honour, that was never the company's interpretation in putting together this clause. The company's position was this: in the event that somebody does have an ability to return, they will get ongoing payments. Where they make a claim but that claim is ongoing, denied or there's a dispute over that TPD claim - I probably use the word "dispute" and be careful in the words I choose - payments will continue because a claim is outstanding.

PN167

The clause goes on and says:

PN168

The company will continue to make payment until the employees is declared totally incapacitated by either the insurer or the workers compensation or they return to work.

PN169

Clearly, the clause interprets and is designed to only make payments in those certain circumstances. It is not there so that an employee that does not have that ability to return. Ms Angus uses the words "this has had dire consequences". Yes, your Honour, we're dealing with emotive subjects here. Quite clearly, when an employee is injured it's an emotive situation that we're in, but the reality is that we have a clause in place, we have a set of words which I believe are quite clear on their face as to when payment is entitled.

PN170

THE DEPUTY PRESIDENT: They're clear on their face I think, Mr Stewart, but for being so they're nonetheless problematic in many ways because - - -

PN171

MR STEWART: I don't disagree.

PN172

THE DEPUTY PRESIDENT: - - - if you had a circumstances where it was the opposite - you say there are doctors that are now saying on their advice that there's not a likely return to work, but if a doctor says to you, "Well, if this person continues with the treatment that they're on and that treatment ultimately proves to be successful, then it is more likely than not that they will be able to return to work and I assess that that could happen somewhere in the next 3 years." Does that constitute a probable return to work?

PN173

MR STEWART: Not within the words of this clause, your Honour, because the clause, as I've indicated goes on and says

PN174

The payment is subject -

PN175

and we're talking about the ongoing payment to age 65:

PN176

Is subject to ongoing independent medical assessments and participation in return to work programs.

PN177

Our interpretation of that means that quite clearly it has to flavour the use of the word "probable" and yes, you're right, the clause in hindsight should have been drafted in a much more concise way.

PN178

The union's interpretation of the clause gives rise to an absurdity because in their interpretation we don't even need to have any T and PD insurance because it would never be required. There would be no need to have the insurance, which the company pays considerable money for to have in place, as the fallback for those unfortunate employees who can't return to work.

PN179

THE DEPUTY PRESIDENT: You say that use of the words "and participation in return to work programs" is a qualification upon the receipt of the benefit so that if you don't participate in return to work programs then your entitlement to the benefit may be put at risk.

PN180

MR STEWART: Yes. Your Honour, the clause has been put together, as you can see - - -

PN181

THE DEPUTY PRESIDENT: No, I understand that.

PN182

MR STEWART: - - - in such a way that - I think all the words have to colour each other.

PN183

THE DEPUTY PRESIDENT: What I was going to ask you, Mr Stewart, is, again it's problematic, how and when does that cut in? An employee has a heart attack, is incapacitated for a period of time after the heart attack, qualifies on that basis for salary continuance insurance, but is unable to, at that particular point in time, participate in a return to work program. Is it sufficient for a medical practitioner to say, "Well, subject to treatment and subject to all things being equal and subject to this person doing all of the right things, they will be able to participate in a return to work program at a particular time in the future"?

PN184

MR STEWART: Your Honour, I would reply by saying that that has to be interpreted at the time upon which the company's obligation to make payment commences at the end of the 2 years, in much the same way that the Victorian WorkCover Authority goes about making an assessment when they cease their payments. Anything could happen. I think the comment was made medical advancements mean that things could change. Yes, of course things could change. That's an inevitability that there could be an off-chance that something could change.

PN185

At the time at which the company's obligation to make the payments commences, which is, in accordance with the clause, at the end of the 2 years, at that point there has to be - because it says the payment. We're talking about the payment by the company to age 65 and so I believe the clause has to be read that - - -

PN186

THE DEPUTY PRESIDENT: You say at the point of 2 years there must be an ability at that time for the employee to participate in a return to work program?

PN187

MR STEWART: Your Honour, I think that's the way the clause reads.

PN188

THE DEPUTY PRESIDENT: I'm just asking you. That's what you say is the - - -

PN189

MR STEWART: Yes, that's right. Again I'll come back to, I think it's much the same as the way the VWA makes their assessment at the point upon which - I think the words they use is "meaningful employment" in the OH and S legislation.

PN190

THE DEPUTY PRESIDENT: How would that work if the employee is terminated by the company?

PN191

MR STEWART: That's a pre-condition, that if termination occurs then payment continues.

PN192

THE DEPUTY PRESIDENT: Yes, but how does the participation in a return to work program work then?

PN193

MR STEWART: That's what I say, I think it's almost a pre-condition that if termination occurs - obviously the latter, ie. the return to work involvement can't occur and so payment will continue.

PN194

THE DEPUTY PRESIDENT: Didn't you just say that at 2 years, when the company assumes the liability associated with the payment, then one of the conditions for payment is the ability to participate in return to work programs? You can't get the payment unless you participate in a return to work program after 2 years.

PN195

MR STEWART: Yes.

PN196

THE DEPUTY PRESIDENT: If the company terminates you then you obviously can't participate in a return to work program, so how do you get the payment?

PN197

MR STEWART: The clause actually contemplates that, your Honour, where it says the company will continue to make the payment even if the employee is terminated by the company, so that, obviously, if termination occurs they can't participate and so the requirements for the payment are removed but if the company does that they do that at their discretion through termination, then you will get your payment till age 65 and those pre-conditions to the payment - - -

PN198

THE DEPUTY PRESIDENT: Participation in the return to work program is conditional upon you being maintained in employment and conditions whether or not you receive the entitlement, in your submission.

PN199

MR STEWART: The ability to involve yourself in the return to work plan would be conditional upon you being in ongoing employment.

PN200

THE DEPUTY PRESIDENT: Yes, so it's not a condition precedent for getting the entitlement necessarily.

PN201

MR STEWART: What I would say the clause is interpreting is that if the company terminates your employment, obviously through no fault of your own, you can't participate in the return to work programs.

PN202

THE DEPUTY PRESIDENT: The only point I'm making and I'm not trying to sort of tie you up in knots, Mr Stewart, I'm simply - it seems to me you can't have it both ways. You can't say there's condition precedent to receiving the entitlement that the person participates in a return to work program, but then make the participation in that program conditional on something else, in this case whether or not we decide to keep you employed.

PN203

MR STEWART: I would say the outcome of that is that if in the circumstance where your continuation of employment was taken away by the company, the clause already says, "In that case you'll get payment till age 65 so you are no worse off as a result of that." I don't think that the two are inconsistent, your Honour. Again it comes back to a clause that - - -

PN204

THE DEPUTY PRESIDENT: Better to get yourself fired, Mr Stewart.

PN205

MR STEWART: It could be, your Honour, and I think the reason the union pushed to have those words in there at the time was to stop that very situation, was to stop the company just simply terminating an employee at the end of the 2-year period and saying, "Well, now you can no longer involve yourself in a return to work program so therefore you don't have any payment." That, I'm instructed from the people who were there when this clause was put together, was the very reason why those words were inserted.

PN206

I believe that the entitlement to the payment by the company, just in closing if we go over it, the basis upon which we reach the situation with Mr Leao and Mr Nguyen today is that the requirement is there for the company to make ongoing payment once a claim is outstanding. We say that a claim at the moment in relation to those employees is not outstanding because it has yet to have been made and so we say on any interpretation of outstanding, there has to be a claim on foot for it to be outstanding.

PN207

We say that on the employees' own medical evidence for over 2 years they haven't been involved in any return to work programs and their own medical evidence says they don't have a probable return to work. On that basis the clause should be read that there is no entitlement to ongoing payment.

PN208

In closing we have had numerous discussions with the employees, and I have extended their weekly payments a couple of times now, to explain our interpretation and to assist them in putting a claim form together. We have now stopped their payment so that we could just at least get to this point. I just put on the record we are happy to extend their payment until today's hearing because that was part of the undertakings that were given at the time that se decided to bring this matter forward. However, what Mr Nguyen and Mr Leao can't do, your Honour, we say, is not make a claim, have no probable return to work and continue to get payment under this clause. That's our interpretation of the clause.

PN209

Unless I can assist you further, your Honour, those are the submissions.

PN210

THE DEPUTY PRESIDENT: Thank you, Mr Stewart.

PN211

MS ANGUS: Can I just address two points quickly. Your Honour, I think you're right that it really ultimately turns on an issue of how the parties understand the probableness of returning to work. It is highly probable that a man in his forties with serious back problems will at some stage return to work. That is a probability.

PN212

THE DEPUTY PRESIDENT: That depends upon how you assess it, Ms Angus. I'm not sure whether I would go so far as to say that. There has got to be, in my view, some criteria about assessing probability. That seems to me to be where the nub of this issue lies.

PN213

MS ANGUS: Your Honour, to be frank, your difficulty is that neither party can provide you with that.

PN214

THE DEPUTY PRESIDENT: Yes, thanks very much.

PN215

MS ANGUS: Apologies for that, but it does turn on an issue of probability and we definitely take issue with the point that Mr Stewart made about returning to work issues and it went like this, I seem to recall, "It is in our view certainly possible for a situation to arise where an employee may not be in an immediate position to return to work now, but it is probable that they will at some stage, some future stage and that in that situation they would still be eligible for salary continuance and that - - -"

PN216

THE DEPUTY PRESIDENT: Sorry, run that by me again.

PN217

MS ANGUS: A situation where an employee now, at the given point now, is unable to work, unable probably to participate in return to work programs, but it is probable that they will be able to return to work at some future stage and therefore would be eligible for payment under this clause. Mr Stewart is of the view that if you can't return to work now, if you can't participate in a return to work program, then it's probable that you won't ever be able to and therefore you fall outside of the scope of these provisions and you're not entitled to pay.

PN218

You seemed to be having a debate, the pair of you, about the return to work programs and Mr Stewart omitted those final two words "where appropriate". This clause clearly envisages a situation where the assessment of an employee is according to their medical assessment and participation in return to work programs where appropriate. It is appropriate in a situation where an employee is unable to return to work at the 2-year mark, for example, but may be able to return to work at some subsequent date, then they may not be in a position to engage in return to work programs but that's because the clause itself envisages that by putting that proviso of where appropriate. That would be an example of where it would not be appropriate to require people to return to work immediately, but it's probable that they will at some subsequent date.

PN219

Likewise, the example that you also raised, your Honour, in relation to termination, an employee could be terminated but still receive salary continuance and that would be a situation where it's not appropriate, according to the wording of this clause, for them to engage in return to work programs.

PN220

I raise those as two examples to broaden the scope of what we would argue is a very narrow reading of the company's.

PN221

THE DEPUTY PRESIDENT: I'm not sure that in any event the words "participation in a return to work program" necessarily lead to the conclusion that on a particular date, being the 2-year timeframe that Mr Stewart alluded to, the employee must go to work. I'm not sure that the words "participation in a return to work" - I'm helping you - - -

PN222

MS ANGUS: In fact, we would argue that participation in a return to work program is not actually an indication of much at all, other than a procedural involvement in the active return to work, but that doesn't tell us much about probability.

PN223

THE DEPUTY PRESIDENT: It has got to mean something. It's just a matter of what it actually means and that seems to me to be the issue with a couple of ..... what does "where appropriate" mean?. What does participation in a return to work program mean? What does probable return to work mean?

PN224

MS ANGUS: The qualifier "where appropriate" gives some indication of - in the drafting of this clause, the intention of the parties was that there could be situations where people wouldn't engage in a return to work program, but it's still probable that they'll return to work. That is why that caveat of where appropriate - that gives an indication of the intention of the parties in that context.

PN225

THE DEPUTY PRESIDENT: Yes, but in order to make this operate in a practical sense, all of those things have got to be given some meaning, because some the things that Mr Stewart raises about the open-endedness of it otherwise and the fact that under certain circumstances T and PD becomes sort of a superfluous issue in the absence of giving some meaning to some of these phrases that are in there.

PN226

MS ANGUS: If what you're really saying by that, your Honour, is that it has less commercial or less financial value than ongoing salary maintenance, then I'm not sure that that - for example - - -

PN227

THE DEPUTY PRESIDENT: No, I'm not saying anything about any financial value, I'm simply saying that to give practical effect to these phrases in here, starting from the phrase "probable return to work" and including the phrase "participation in return to work program" and the last bit that you have so rightly alluded to "where appropriate", unless you know what you mean by that, then giving practical effect to this clause becomes hugely problematic.

PN228

MS ANGUS: Can I add one more point in response to that, your Honour. Mr Stewart contests that there was agreement about how this clause applies. This clause has not been, until this point, the subject of dispute since 1998 and Mr Stewart has been with Visy for several months now so while we would certainly say that the clause has to be interpreted on its face and that the exercise that we hope your Honour is going to engage in will shed some light on what these words mean and how they apply to these two individuals. Again we make the point that this clause has been applied consistently and without dispute up until this point and so Mr Stewart is just not right about his view that - coming along at the eleventh hour that in fact there hasn't been agreement in the past.

PN229

Your Honour, can I just say, clearly it's a slightly convoluted matter to put before you to seek assistance from the Commission. If there's any written material that would be useful for the Commission in assisting you in making a decision, please let us know and we're happy to supply that.

PN230

Let me say one more thing, it's slightly unfair of Mr Stewart to say "We will extend payment to these people up until today." We thought we had an agreement that these people would most certainly be paid until the Commission determined the matter. I understand that Mr Stewart in fact cut payment 2 weeks ago to both of these people which is contrary to our understanding of an agreement that was reached.

PN231

THE DEPUTY PRESIDENT: Just, I guess, on that subject to some degree, there seems to me to be two issues here and you, I think, quite appropriately raised it right at the outset, Ms Angus. There's the issue of what this clause means in the agreement to any employee. That's not a particularly pressing issue if nobody is currently having their situation addressed under that clause. The difficulty here is that's not the case, we're not addressing the clause in its general sense alone, we're addressing it in specific relation to a couple of individual employees. That seems to me to be quite a different matter.

PN232

What I was going to suggest is it might be worth us having some discussion just off the record briefly about that, if the parties have got no objection to it. I'm prepared to give what meaning I'm able to give to that clause by way of a determination. However, I think there are the two things that arise, one is two specific individuals and their particular circumstances and what should occur in respect of those, and then more generally, what does this clause mean for the future for anybody it happens to come up in respect of.

PN233

MR STEWART: In relation to that, your Honour, I came here today under the understanding we're talking about Mr Nguyen and Mr Leao and it was in relation to those specific cases that we were going to assess the clause, just so you're aware of where I've come to this.

PN234

I'm happy to go off the record to discuss the situation in relation to Mr Nguyen and Leao if that's the course your Honour wants to take. Before doing so, though, while we are on the record, the matter was just raised by Ms Angus about the words "where appropriate" and I hadn't had a chance to address you on that. If I may just briefly, what was said is that where appropriate provides some caveat to the fact that it might not be appropriate in every circumstance where somebody at the time that the payments commenced couldn't participate in a return to work program, but in the future sometime they might be able to.

PN235

Again I come back to the words on the page, your Honour. I think that they're the very words that colour the observation you made, your Honour, about well, maybe it's not at the point on which the 2 years end that you make that determination, maybe in circumstances where the medical evidence of the doctor is that sometime in the future there may be an ability to return to work. That's where participation in a return to work program straightaway might not be appropriate, but there needs to be some specificity attached to this clause. It needs to be interpreted in some way so it gives it meaning.

PN236

I would say that in these circumstances of Mr Nguyen and Mr Leao, dealing with the medical evidence we have in respect of those two employees, that there is no probable return to work at the moment and so the decision by the company to terminate the payments was on that basis. I think that to not restrict in some way the understanding of that clause leaves it open-ended and it gives it no meaning at all and it does render almost invalid and unneeded any T and PD insurance, but that where appropriate do colour that very circumstance that your Honour commented on. I just wanted to make those observations.

PN237

My involvement, I just put on the record, I take instructions in relation to the people who drafted this clause, your Honour, and I'm not bringing at eleventh hour a new interpretation which cuts off at the knees how this clause is operated. I am here representing and taking instructions from those people who actually drafted the words.

PN238

THE DEPUTY PRESIDENT: That fine. Thank you, Mr Stewart. Any
objection to going off the record briefly?

<NO FURTHER PROCEEDINGS RECORDED