C2005/3001, Transcript of Proceedings [2005] AIRCTrans 2648 (30 December 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 13629-1

COMMISSIONER GAY

C2005/3001

ASSOCIATION OF PROFESSIONAL ENGINEERS, SCIENTISTS AND MANAGERS, AUSTRALIA, THE
AND
FORD MOTOR COMPANY OF AUSTRALIA LTD
s.170LW - Application for settlement of dispute (certification of agreement)
(C2005/3001)

MELBOURNE

10.27AM, TUESDAY, 06 DECEMBER 2005

Continued from 17/11/2005

PN1

THE COMMISSIONER: No change in the appearances, gentlemen? The case -there's been a brief conference in my room this morning which arose from the issues - comments made at the conference held on the day of the mention; that is, Mr Georgiou, Mr Wood and I have had a brief yarn this morning and the matter goes on. Mr Georgiou?

PN2

MR M GEORGIOU: No, I think Mr Wood is going to - - -

PN3

THE COMMISSIONER: Yes, he was. I thought you wanted to say something, all right. Yes, Mr Wood?

PN4

MR A WOOD: Yes, I'm happy to go first, thanks. Yes, of course, what I'd like to do at the outset is to, if it pleases the submission, just to hand up some documents to which I'd like to refer. There is an index in the document that I've just handed to Mr Georgiou and your associate with both submissions document together with a range of related documents which include, for instance, the award, the agreement and a variety of authorities that I may refer to.

PN5

Commissioner, I should point out that the submissions document is a document that I'll take you through this morning. It is different in some respects to the document which was filed previously but I'll certainly take the Commission through it.

PN6

THE COMMISSIONER: Yes. I think it might be useful to do and I'll do this now, mark firstly your correspondence. I won't mark everything on the file but I'll mark your material.

EXHIBIT #W1 MATERIALS SUBMITTED INCLUDING OUTLINE OF SUBMISSION AND LETTER DATED 30/09/2005

PN7

THE COMMISSIONER: The letter is a letter to Mr Georgiou. There is also - this is really a mini-omnibus, if such a thing exists - a letter also of that date from you to me and attached to both, it seems were the outline of submissions which is attached to what I now mark.

EXHIBIT #W2 OMNIBUS

PN8

MR WOOD: Thank you, Commissioner, and I think that to the extent to which we then refer to exhibit W2, it's indexed and tabulated and I think it can be sufficiently clear to - as to which documents I'll be referring as I go through this.

PN9

Commissioner, it's obviously been the subject of lengthy proceedings and fortunately, I think, we are at the stage where we can address the jurisdictional issues which arise so let me come straight to the point. There are two matters of course that are agitated by APESMA today, both purportedly pursuant to section 170LW of the Act. As the Commission knows, that section provides the Commission with the jurisdiction to deal with or indeed, according to paragraph (a), to settle disputes over the application of the agreement.

PN10

The relevant clause in the current Ford agreement, which is the 2003 agreement, is clause 1.7. The agreement, by the way, is found under tab B of the folder and clause 1.7 of the disputes procedure relevantly states that there is an agreed grievance process contained in the 1995 enterprise agreement. I don't think there's any dispute between the parties that that is indeed the applicable process.

PN11

The 1995 agreement I have not included in its entirety in exhibit W2 and I do have, however, a copy that may assist the parties and the Commission and if I can at least provide a copy of that document. I assume you might not want to mark that, Commissioner, but the document that I have just handed is a copy off the website which is in some senses unsatisfactorily set out. It's difficult to read for which I apologise but nevertheless six pages from the back of that document is the relevant attachment 2; attachment 2 is the process, the dispute or grievance process which operates under this agreement.

PN12

It's sought to be agitated pursuant to stage 5 of that process so about two-thirds down that page of attachment 2 one gets to the reference to stage 5 of the formal procedure. Again, that's difficult to identify exactly where we're referring to but I'll read what it says at that point. It says:

PN13

If the grievance remains after discussion at stage 4 -

PN14

which I don't take the Commission to at this point:

PN15

- the parties may choose one of the following -

PN16

and there are two options. The first option is where by agreement a matter is referred to an independent arbitrator, and clearly there is no such agreement in this case so - - -

PN17

THE COMMISSIONER: The prescient clause in the 1995 agreement, Mr Wood.

PN18

MR WOOD: It is an interesting clause for 1995. They say things anew. Well, there you go, 1995. In any event, in the absence of agreement there is a second option which is (ii) which relevantly states that:

PN19

Either party may elect to make application to the Australian Industrial Relations Commission. If the matter is referred to the Commission the parties agree that the decision on the matter shall be final subject to any appeal in accordance with the Industrial Relations Act 1988 -

PN20

as it was then:

PN21

- and shall be accepted -

PN22

and so on. That is the foundation upon which - and indeed is the only foundation upon - - -

PN23

THE COMMISSIONER: But that circumscribed the - and if you're calling that up now, Mr Wood, do you say that?

PN24

MR WOOD: I think - I'm not quite sure if I understand the question.

PN25

THE COMMISSIONER: The question is do you think that by calling up that particular provision in its application now does it apply in its literal sense?

PN26

MR WOOD: It simply can't apply in its literal sense because the - apart from the fact that the Act having been changed there are certain things that can't on their face be applied. But one has to give the current agreement effect and the current agreement, that is the 2003 agreement, expressly seeks to apply the process in the 1995 agreement and it is indeed, if you like, virtually the only and sole guide as to what the disputes process is to be for the parties and to the extent that it's capable of application we say that that should be the case.

PN27

But of course our submission will develop that the process itself can only go so far as it's allowed by section 170LW of the Act save for instance to the extent that that part, stage 5(ii) might assert that the matter shall be final and that it may not be constrained necessarily or restrained to dealing with matters arising under the agreement. To the extent that they exceed those matters section 170LW can only deal with the matters which do fall squarely and fairly within the scope provided by the statute. I'll deal with that shortly as we go through.

PN28

THE COMMISSIONER: Yes.

PN29

MR WOOD: There are two issues, Commissioner, before the Commission. The first is the overtime issue, the cap, which is imposed in respect of certain categories of employees. The second issue is the relevant rate at which graduates are paid when they enter the workforce. Those matters are, I think, reasonably clearly understood from the application which is made by APESMA.

PN30

I want to turn to paragraph 6 and onwards of the submission document in exhibit W2 and deal with section 170LW. As I have noted, the power under that section is to settle disputes over the application of the agreement. The first point I want to make here is in reference to the documents which have been filed by APESMA in this document and I'm not sure if they have been given an exhibit reference or not but - - -

PN31

THE COMMISSIONER: No, they have not.

PN32

MR WOOD: It might be appropriate actually to number that.

PN33

MR GEORGIOU: No.

PN34

MR WOOD: No?

PN35

MR GEORGIOU: Unless I get up.

PN36

MR WOOD: Okay. I'll simply refer at this point to the fact that the APESMA submissions which are not dated on their face but run to some eight pages - but the point I wanted to make about those, Commissioner, is what they don't refer to expressly - and that is they don't refer expressly to the manner in which - the matters which are being agitated by APESMA in relation to the agreement. It's manifestly obvious as you read through those submissions in various locations that they pertain to issues which are wholly and solely matters which relate to the award. And I will take the Commission to these in further detail later but in respect of the overtime issue at part E on page 2 of the APESMA submissions, the notation is made that the association submits that the company is in breach of its award obligations by imposing a ceiling cap on overtime.

PN37

Moreover, at part J they assert that the association submits that this is entirely in accordance with award obligations and encapsulates clause 5.5 of the award. There is no material link or reference in these submissions and nor is indeed, in our submission, capable of making any link to the relevant provisions of the 2003 agreement. The basic premise of our argument is that accordingly the Commission has nothing in these circumstances that it can deal with which is a dispute arising over the application of the agreement. There's no link, there's no nexus, and I'll take the Commission to that shortly.

PN38

In respect of the second issue, which is the graduate entry rate, the same problem arises, although manifestly more so, in our submission, because throughout that document and in the conclusions again there are references to the award rates of pay, the misapplication, either of award rates of pay or alternatively the fact that award rates of pay have not been modified. On my reading of the APESMA document the only complaint which one can say relates back to the enterprise agreement is on page 7 where there is a reference at (iii) in the middle of that page that there is an agreement between the parties that in 1993, 1995 and 1997, that the EBAs agreed to vary the award rates to reflect the EBA increases. But again there's nothing specifically that can possibly relate to the 2003 Ford agreement.

PN39

Now, the powers under section 170LW are well understood to be effectively powers of private arbitration and the disputes procedure in the agreement does not, in our submission, confine its operation to disputes over the application of the agreement. That's clear. I took the Commission already to the 1995 agreement and indeed the reference at the beginning of the attachment 2 to the 1995 agreement refers to general workplace grievances. However, to be said that a matter referred to the Commission under the disputes procedure is not characterised as a dispute over the application of the agreement then section 170LW has no application and the Commission in those circumstances will be exceeding its statutory role to determine a dispute and would therefore be acting without jurisdiction.

PN40

Now, in support of that authority, if I can take the Commission to tab D, there is a reference to the CFMEU decision. That case concerned what was then section 170MH of the Act as it was at the time of that decision, although for present purposes section 170MH was identical to section 170LW of the current Act.

PN41

THE COMMISSIONER: Yes.

PN42

MR WOOD: At paragraph 34 of that decision on page 658 the High Court on appeal from the Federal Court noted that:

PN43

The parties to an industrial situation are free to agree between themselves as to terms through which they will conduct their affairs. Their agreement has effect according to general law. If their agreement is certified it also has effect as an award.

PN44

Now, I note that that was the case back in - the legislation at that time. It's not necessarily the case now. They go on to say:

PN45

To the extent that an agreement provides in a manner that exceeds what is permitted either by the constitution or by the legislation which gives the agreement effect as an award, it cannot operate to that effect.

PN46

So, in other words, what they're saying on application of the current facts is the fact that the 1995 disputes procedure might say that this applies to any matter that might - or any workplace grievance that can't permit the Commission to deal with matters which might meet that power unless it's consistent with the scope of section 170LW. The company submits that neither of these matters are, according to our characterisation, disputes over the application of the agreement and accordingly there is no jurisdiction.

PN47

I won't take the Commission in any detail but at paragraph 10 of the submission that we have handed up there is a point that we wish to respond to APESMA's assertion in correspondence that the company waived its rights on jurisdiction simply to make the point that there is no waiver of rights of jurisdiction; either jurisdiction exists or it doesn't. It's not a matter that can be waived in these circumstances. We say the facts point to there being no jurisdiction to deal with the matter.

PN48

So what is a dispute over the application of the agreement? Well, in order to determine whether either of these issues are disputes over the application of the agreement is a two-step process. The first is to properly characterise the dispute and the second then is to determine whether there is a sufficient nexus which is identifiable to the provisions of the agreement. If on that point I can take the Commission to tab H, the Automated Meter Reading Services decision or AMRS decision, a decision of a Full Bench of this Commission of September 2002, found in Print 922053.

PN49

I'd like to turn - that by the way, simply from reading the headnote, Commissioner, was a matter which concerned whether the dispute before the Commission on that occasion was a dispute over the application of the agreement for the purposes of section 170LW and again, simply from the headnote itself, the notation that there's a requirement both to characterise the matter in dispute and also to see if there was some basis for finding that dispute. At page 26 of the decision there is the oft quoted provisions, and I'll start at paragraph 72, as to the meaning of the expression "dispute over the application of the agreement". Their Honours - the majority make the following points, that that term "dispute over the application of the agreement" has not been judicially considered. In that case they weren't referred to any particular authorities but they - and I'll quote:

PN50

In CFMEU v AIRC the High Court identified the particular issues with which the Commission was asked to concern itself as to disputes over the application of the agreement. However, that acceptance appears to be have been intended as an asserted premise in the Court's reasoning.

PN51

They go on and say in paragraphs 73 and 74 in reference to the Alcoa decision, which I won't take the Commission to, but at 75 they encapsulate the conclusions that:

PN52

A relationship between the provisions of the relevant agreement and the subject matters in dispute would appear to be an essential element in the identification of any dispute over the application of the agree.

PN53

THE COMMISSIONER: It would be hard to conceive of any circumstance where that wouldn't be so.

PN54

MR WOOD: It's manifestly obvious and it's clear.

PN55

THE COMMISSIONER: Yes. Anyway, there it is, but that's right.

PN56

MR WOOD: It's the principle and of course it's the very principle which we say APESMA has failed to identify in this matter. There is no relationship in our submissions between the provisions of the agreement and the agreement and the subject matters in dispute. The subject matters which are in dispute, both of them, are matters that arise clearly and fairly within the terms of the award.

PN57

So then if I can, let me take you to that specific issue in respect of overtime. The award itself, and clause 5.5 of the award is the clause that regulates overtime - it's not regulated by the agreement. According to APESMA the award does not place any restrictions on the number of overtime claims by employees and the company is considered to be in breach of its obligations. However, the claim by APESMA in these circumstances is that the company is in breach of the award on a premise that the agreement and the award interact, and presumably interact in a way that the actual rates of pay afforded the salary employees are covered by the agreement applicable to the overtime mechanisms of the award.

PN58

That premise, in other words, is not correct. Importantly, the agreement in no material or in no actual respect deals with employee entitlements to overtime, although the agreement does presuppose that overtime itself exists but it's provided for elsewhere and elsewhere being in the award.

PN59

THE COMMISSIONER: That does have to be assumed an interrelationship between the operations of awards and agreements though because the alternative is that it would be necessary to repeat everything in an agreement for it to operate smoothly in a day-to-day way. For example, you can imagine an award that travelling along following the statutory regime and that the pay rates are adjusted according to the safety net cases, and the award provides for leave loading, unexceptionally is in there in the code of award conditions - code of word rules and so on.

PN60

In the agreement there are enhanced bargaining rates of pay and there might even be an annual leave clause but perhaps in some more modern way that in an old way, sets out different permutations if someone can take annual leave and so on.

PN61

MR WOOD: Yes.

PN62

THE COMMISSIONER: Is your contention that the agreement properly applied in relation to the real world, with the real bargained rates of pay for a person on annual leave wouldn't provide for a leave loading?

PN63

MR WOOD: It's a question of fact and it's a question of nexus and that's what the cases say. What is - how do you characterise dispute and then it was what is the nexus between the dispute and the agreement? I think that's a factual issue in each case for determine in particular circumstances. So it might well be in the example you give that that would be the case.

PN64

What we contend in this case is the specific issue, the characterisation of the dispute, the concern about the failure of the company to provide overtime at the rate agitated by the union has to be a matter that's dealt with in the agreement itself. They simply can't contend that either overtime is a general amorphous issue or rates of pay constitute the matter. There needs to be some specific provision in the agreement to which it relates. One point that I wanted to take the Commission to is to that question of nexus.

PN65

THE COMMISSIONER: Yes.

PN66

MR WOOD: As I previously mentioned there is no reference at all - in the union's submissions at all as to the relevant provisions or parts of the agreement to which the overtime dispute, if I can use that term, relates. It doesn't. It can't. It can't possibly.

PN67

THE COMMISSIONER: Well, that's one way of putting that the union are unable to point but do you say that - I want to be guided - assisted by your submissions. Do you say properly understood the agreement doesn't have any reference to overtime in a way which might even arguably - - -

PN68

MR WOOD: It does and let me take - - -

PN69

THE COMMISSIONER: - - - provide a sufficient nexus?

PN70

MR WOOD: Let me take you to the one area - - -

PN71

THE COMMISSIONER: Yes, thank you.

PN72

MR WOOD: - - - and we address this at paragraph 16 and onwards of the written submissions.

PN73

THE COMMISSIONER: Yes.

PN74

MR WOOD: One needs to look at the interrelationship between the agreement and the award and if we can go to the agreement and in particular to clause 1.2 of the award which is in tab B, it says that:

PN75

This agreement shall be read and interpreted in conjunction with the awards as varied from time to time and -

PN76

It says agreement but I think it should be reference to "agreements", I think:

PN77

- specified below which will continue to apply to the relevant employees.

PN78

Et cetera, et cetera, to the extent of an inconsistency. Now, in our submission, that's not an uncommon manner of referring to the relationship between awards and agreements.

PN79

THE COMMISSIONER: But it doesn't call them up.

PN80

MR WOOD: It doesn't call them up. It doesn't incorporate them and apply them. There are matters - mechanisms which could be adopted if that were to be the case.

PN81

THE COMMISSIONER: Yes.

PN82

MR WOOD: The mere fact that an award might make reference to overtime or it might make reference to graduate salary rates and so on, isn't sufficient to constitute that connection between the character of the dispute and the dispute over the application of the agreement. I have referred to some authority in this regard in the ANZ v FSU decision which is referred to I think at - excuse me while I find it - sorry, tab K.

PN83

Commissioner, that's a Full Bench decision of this Commission in Print 923420 from October 2002. In particular in that case it concerned the application in the relationship between the relevant award and certified agreement. The material issue for current purposes arises at paragraphs 16 and 17 concerning the issue of incorporation. The question was asked whether the 1998 award which was under consideration in that case was incorporated into the certified agreement. At paragraph 16 the Full Bench note:

PN84

We turn to that contention that clause 11. 2 of the award is incorporated by reference into the agreement. We note that the incorporation argument depends upon the terms of the agreement.

PN85

Obviously. Then they go on and talk about the specific clause which was relied upon in that case which is extracted at paragraph 16 of their decision and you will see, Commissioner, that it is very similar to that clause which is contained in clause 1.2 of the current 2003 agreement. Again there's reference to what happens in the event of inconsistency. They then go on to say:

PN86

Despite the arguments of counsel for the company we are not decided that this provision has the effect of incorporating any of the terms of the 1998 award into the 1998 agreement. The expression in these circumstances will continue to apply.

PN87

That's a quote, those words:

PN88

- is not indicative of an intention to incorporate the provisions of the award. The expression serves to indicate that the provisions of the award continue to operate of their own force unless they are inconsistent with the 1998 agreement.

PN89

So applying - I might say that there's - - -

PN90

THE COMMISSIONER: It might be if that 1998 award had been set aside and replaced by a new award in its entirety. You don't have to really respond to that but it might be that that would really constitute a reference in terms - incorporation in terms.

PN91

MR WOOD: I don't think it could be asserted that that in itself would result in the incorporation. Either the award is incorporated or not or a particular provision itself is incorporated or it's not. In those circumstances what the Full Bench in this case said, and it's equally applicable here, there is no incorporation. There needs to be some clear and express manifest intention of incorporation.

PN92

THE COMMISSIONER: Yes.

PN93

MR WOOD: And at paragraph 27 on page 7 of their decision they again go on and make this same point. So the award is not a certified agreement and they rely indeed on the very same point because the issue regarding the application of section 170LW also arose in that case and they said because it's not incorporated that doesn't provide the Commission with any powers to deal with those matters as if they were matters arising under the agreement for the purposes of section 170LW. So, the same - - -

PN94

THE COMMISSIONER: If the parties make references in their agreements to provisions in awards really is a manner of - I don't know whether this is relevant in this case - but of industrial shorthand.

PN95

MR WOOD: Yes.

PN96

THE COMMISSIONER: It strikes me that the bench really is confining themselves there to the conclusion that they read on the basis of what they say at the final sentence in paragraph 17 and that it is that the award continues to operate of its own force. So, whether it could be properly applied principles of construction would mean - would that argument not ride because the award itself no longer operated by its own force because it had been replaced, then it might be thought that a reference like that in an agreement reflects the bargaining reality that parties do refer to something because they want it to apply in the award. But there's no doubt that I understand what you're putting and certainly that's the case in that instance that there was an ongoing award operation and it's the bench's conclusion that that's what the agreement is alluding to.

PN97

MR WOOD: That's correct, and not only just as an abstract issue but they make the point, as I said, specifically in paragraph 27, in respect of 170LW. Now, the argument of course has - it might - you know, Commissioner, you raised some issues of practice in a sense of what would be the impact of interpreting in that way but there are - I'll take you to that in a moment. I really as a footnote made reference to the fact that - how the parties themselves can incorporate were they so inclined to do so. And I have made reference at footnote number 6 of the submissions on page 4 to an enterprise agreement that would or does, in my submission, successfully achieve that incorporation. That was in one of the Grocon agreements.

PN98

THE COMMISSIONER: There's no doubt it can be done.

PN99

MR WOOD: The way in which that intention is manifested is I think in - just as an example, in tab L of the Grocon enterprise agreement, and the words they use, and this is merely indicative - the words they use in their clause 2.2 of their agreement is to say that:

PN100

The terms and conditions of the award as of a certain date are expressly preserved by this agreement as if the same was set out in full herein.

PN101

And they go on and specify that and they do elsewhere in part D of that clause. Indeed, elsewhere in the 2003 agreement there has been express incorporation of other instruments. So, for instance, the very disputes procedure that we are dealing with today is a procedure which is expressly incorporated from the 1995 agreement. So it can clearly be done and it hasn't been done on this occasion.

PN102

To add further foundation or jurisprudential basis for that conclusion, one need only consider as we identify at paragraph 20 of the written submission is that if the provisions of those other instruments were incorporated, that imposes a burden upon the Commission on certification of the agreement on each occasion to ensure that those other instruments do in fact, for very least, pertain to the employment relationship.

PN103

THE COMMISSIONER: I understand that point.

PN104

MR WOOD: That certainly wasn't done in the case of this agreement. Indeed, if it were - - -

PN105

THE COMMISSIONER: You have got some major - - -

PN106

MR WOOD: - - - there would be problems.

PN107

THE COMMISSIONER: - - - Electrolux - - -

PN108

MR WOOD: There'd be big Electrolux problems because there are a range of provisions - I think we have referred to one them being the new introduction provision in the previous agreement. So, for those reasons, the argument is - and I might say that was saved by the amending legislation of course so it doesn't invalidate those instruments now but it certainly would have prevented certification at the time if they were sought to be incorporated.

PN109

So, our submission in summary is simply that you cannot read clause 1.2 of the agreement as providing some blanket reference of those other award provisions into this agreement and therefore enabling that to be agitated as a dispute over a matter arising under this agreement.

PN110

The other points on this issue at least that I wanted to take the Commission to briefly was what is being asserted about the alleged breach of the overtime provisions, if there is such a breach, or if there is such a provision, and APESMA's own submissions on both pages 2 and 7 of their written submissions they make notes that the company is in breach of its award obligations and the Commission must find that the actions of the actions of the company contravene its award obligations. Well, you can't get a more stark and dramatic reminder of the fact that these are award matters. These are not matters arising out of this agreement. There's not a dispute over the agreement. It's about the award, and it's clearly about the award and the matter should stop there.

PN111

However, even on the manner in which the issue was put, were it a matter of these provisions being in the agreement they are effectively seeking the Commission to exercise judicial power. I mean, it's effectively saying to the Commission: this company is breaching the award. We want you to tell them that they're breaching the award. It requires upon the Commission some findings of an exercise of powers, in our submission, on an improper basis. We make reference to the decision in McCallum v Tenix Solutions and also the Geelong Grammar School.

PN112

I needn't take you, Commissioner, I believe to those decisions in any detail. The authorities are contained both in the previous written submissions and contained here and it is, in our submission, barely an additional basis upon which the Commission is entitled to say that the claim is invalid. We have said on the previous occasion on the record that any claim for breach of award, if it's asserted in this case, should be agitated in the appropriate forum. The appropriate forum is a Court and, in those circumstances, the company clearly has its ability to defend itself on any claims that might be made in that case.

PN113

Commissioner, we address in our written submissions from paragraphs 27 and 28, what we call the merits of the issue. Those matters I don't intend to take the Commission to. They don't, at least for today's purposes, relate to the jurisdictional issues which are agitated but they are included simply to provide some background that the matters which are contended by APESMA are opposed on the general merits of the claim.

PN114

Can I secondly now take the Commission to the second issue which is the rate of pay for graduates? All of the authorities and the arguments that we have provided in respect of the - relevant to the issue apply equally to - sorry, the overtime issue apply equally to this issue. The APESMA argument is, as you're aware Commissioner, that the graduate entry rate for its members under the award must be at 130 per cent of the base trade rate. In its submissions the union - I have taken the Commission to this previously that the company has not adjusted award rates in accordance with EBA obligations.

PN115

Questions arise of course as to what those EBA obligations are. Mr Georgiou could point to those EBA obligations, he might be on some basis or foundation upon which the Commission might be able to deal with this matter. But there is no provision in the agreement which does anything of the like that's asserted by the union in this case. There is no requirement, compulsion, direction, whatsoever that the company is in any way required to do what's asserted or in any event the company is in breach of its EBA obligations.

PN116

There is no complaint in the APESMA materials about the rates of pay in the agreement. The only complaint in our - well, it's clear that the only complaint that could possibly be made, if it is made, is that the entry rate - pertains to the entry rate under the award. Again we need only refer to the earlier submissions we made on that point. There is no nexus. There can be no nexus, in our submission, with the provision of the agreement which can enliven the Commission's jurisdiction. And to the extent that we referred to the AMRS decision and the 7 Network case then we simply rely upon that further in this case.

PN117

I think on the previous occasion on the record the company outlined its concerns that this is not the forum to ventilate this issue. The union has options. It is not our position of course to provide them with advice or guidance on those but clearly if there is a concern about the award simplification process that was conducted and there are appeals - avenues that existed at the time or even out of time, should they be so inclined to do so, or the mechanisms available to vary awards under section 113 of the Act.

PN118

That mechanism is available - it is at least available now and if the matter is seriously contended that the company is in breach of what is sought by the union then that's a matter - mechanism by which to proceed. Of course, there is also the option for the union to progress their concerns in bargaining itself but it doesn't mean that these are matters arising that pertain to the current agreement. There is nothing, in our submission, in the agreement that has any impact on the relevant graduate rates of pay. In our submission, the award rates of pay and the relativities are matters that are clearly within the award. They are matters dealt with the award. Those, as we say, are matters for the purposes of section 113.

PN119

Commissioner, that is in summary the position that this company adopts. It's one that we have maintained consistently through - in confronting this claim. The objections aren't new. They are clear and we have no further submissions to make on the matter.

PN120

THE COMMISSIONER: Yes, thank you, Mr Wood. Mr Georgiou, are you ready to go on now or would you like a few minutes to get your papers in order?

PN121

MR GEORGIOU: I am ready to rock and roll, Commissioner. You can always tell lawyers from industrial people by the thickness of the submissions that they make. They have more time to prepare.

PN122

I am disappointed that Mr Wood has relied on the submissions that were made to this Commission to which is client didn't respond in the time. Those submissions were made - were prejudice - were put to the Commission on the basis that the issue of jurisdiction would not be raised and confine themselves to what the parties had identified in correspondence to the Commission and to each other to be the matters in dispute between them and up until the intervention of Mr Wood the issue of jurisdiction had not been raised and the association, had it known that the facts - the matters in dispute would be challenged would have worded its submissions differently.

PN123

THE COMMISSIONER: Yes, all right. Well, Mr Georgiou, you really must take some solace in this. You certainly won't be prejudiced by the - I mean, you know that I'm aware of the manner in which this issue - - -

PN124

MR GEORGIOU: Yes, and - - -

PN125

THE COMMISSIONER: - - - has - let me, please, Mr Georgiou - has arisen but I do want to say there are only two parties at the bar table. There's no intervention. I know you meant that in another sense but the position that's advanced today is the Ford position.

PN126

MR GEORGIOU: Yes. It's unfair on - and there was a lot of reference made to the submissions made by APESMA in this matter that were made when the scenario was different and therefore we ask that the Commission discount some of those comments and temper them with the history of the application that was before the Commission.

PN127

THE COMMISSIONER: Yes. But don't - I think it's very important for you to know, Mr Georgiou, that you must not feel confined or confine yourself to operate within the scope of the materials that you filed because you say on that earlier basis. Now, if in not being confined in putting your response to what - the jurisdictional observation you trench beyond the matters set out in that undated material that was received in the Commission on 16 September, then certainly I'll have no problem with that and what I would be likely to do though is give
Mr Wood an opportunity to respond to any new issues that you - are raised by the APESMA.

PN128

MR GEORGIOU: Yes. We turn and Mr Wood places great store on the references in the agreement in 1.2 to the award and the previous enterprise agreements. I note your point, Commissioner, that if we were to - and these documents are written by negotiators at an enterprise bargaining table with some 100 employee representatives present and it is not appropriate in those forums to replicate the relevant sections of the awards and agreements which the parties wish to continue to apply in an enterprise agreement. It is simply, as you put it, shorthand to refer to those documents and those documents continue to have operation at the workplace and are read in conjunction with this agreement.

PN129

THE COMMISSIONER: Yes.

PN130

MR GEORGIOU: And if that - - -

PN131

THE COMMISSIONER: Mr Georgiou, I'm very happy to accept the thrust of your argument but these are experienced able bargainers and LW for its part in it has to be given a proper meaning. There is a limit to the elasticity that one is able to give to - I have used that expression - shorthand terms or some manifest intention exhibited by the parties as expressed in their agreements because one understands how the table operates and in bargaining on this scale. Indeed, other sub-tables and satellite tables and so on with multi-union agreements on a scale such as the Ford operation.

PN132

But ultimately it is condensed into a document which comes for certification and LW be given no finer denier for - in this case than in other cases. It has to be given its proper effect.

PN133

MR GEORGIOU: Yes. If that were read narrowly and I were to interpret the submissions of Mr Wood narrowly, I would never be able to agitate a pay matter to do with classifications before this Commission because there is no pay structure in the EBA that relates to salaried employees, for example. We just don't ever include them. The awards have references to classifications in them but there is no replication and indeed only the trade and on-trade salary scales are ever included in the EBAs and for whatever historical reasons that occurs.

PN134

So if the argument that was put to the Commission were correct, we would be very seriously restricted in what we would be able to bring here as salaried employees because most of the EBA - indeed all but about two pages of the EBA - deal with trade and non-trade issues. So - - -

PN135

THE COMMISSIONER: Yes. Well, Mr Georgiou, I think that it will help me if you - if I put this to you: conjunctional operation has a meaning but it doesn't have the same meaning as incorporation in terms.

PN136

MR GEORGIOU: No, but - - -

PN137

THE COMMISSIONER: Now, if for example there are pay rates which are bargaining rates set in an agreement, and they related to or they are applied in the enterprise according lengthy or complex descriptions and descriptors and position - and classification descriptions, but aren't repeated in the agreement, it's my view that in determining a dispute as to whether someone is a class 5 or a class 6 in the agreement, it's necessary to have regard for the descriptions which haven't been repeated in the agreement which are found in the award. But it strikes me - and that's a very, I think, good example of what conjunctional operation means, to give meaning to the agreement, to apply it in the real world you'd have to go down and see what is a super specialist or what's a something or other.

PN138

MR GEORGIOU: Yes.

PN139

THE COMMISSIONER: But in this case it's a little different because you know you're met with a really full blooded jurisdictional assertion that there is not a dispute over the operation of the agreement or the application of the agreement. It's a dispute which arises out of the application of the award per se.

PN140

MR GEORGIOU: Yes, and I was - the reason I focused on the pay was because I was going to refer the Commission to a decision by yourself, Commissioner - - -

PN141

THE COMMISSIONER: Yes.

PN142

MR GEORGIOU: - - - which dealt with - - -

PN143

THE COMMISSIONER: It's going to be on sound ground now, Mr Georgiou.

PN144

MR GEORGIOU: Yes, yes. And it was in PR 954795 and it involved the ASU v Redland Shire Council with regard to the operation of the Redland Shire Council certified agreement number 5, 2002. In that you make reference in your decision to the - in paragraph 2 to:

PN145

The employment in question is regulated by an agreement certified under -

PN146

blah, blah, blah:

PN147

- which operates -

PN148

and you put in quotes:

PN149

- "wholly in conjunction with the Queensland Local Government Officers Award 1998".

PN150

In your decision you quote the ASU's jurisdictional reply and it's in paragraph 16 of your decision where you outline Mr Slevin who by the way is a very underrated advocate since he left the CFMEU. He put the jurisdictional argument - - -

PN151

THE COMMISSIONER: If he reads this transcript one day he'll be comforted to hear that.

PN152

MR GEORGIOU: He put it much better than I could but he - - -

PN153

THE COMMISSIONER: Yes.

PN154

MR GEORGIOU: He said:

PN155

As to the agreements pay rates -

PN156

and that's what that dispute was about, as you're aware, Commissioner:

PN157

- attached pay levels and the -

PN158

THE COMMISSIONER: Well, it's a dispute about classification of individual officers.

PN159

MR GEORGIOU: Yes.

PN160

THE COMMISSIONER: It wasn't a dispute about what the pay rate should be in a general sense.

PN161

MR GEORGIOU:

PN162

- attached to pay levels and the awards, detailed descriptors of the levels the obvious inter-connectiveness between the instruments provides a sufficient nexus said by council not to exist.

PN163

So the nexus is established there and finally - I won't take you too much of it - you say in your decision at paragraph 34, Commissioner, in response to the submissions of employer:

PN164

I am unable to accept this construction as it does not in my view reflect the proper workings of the agreement in its conjunctional operation with the award. I conjures up a dichotomy of separate operations between the agreement and the award which is, in my view, quite artificial.

PN165

Then in paragraph 35 you say:

PN166

Clause 47 reflects the conjunctional operation of the two instruments, that where necessary to give ...(reads)... which is contrary to such a conclusion and every reason to construe their workings in the alternative matter.

PN167

The rest of the case doesn't - it goes to other parts. They're the - with regard - - -

PN168

THE COMMISSIONER: It makes riveting reading though, Mr Georgiou.

PN169

MR GEORGIOU: Look, I found it - I only got it yesterday and I couldn't put it down, Commissioner.

PN170

THE COMMISSIONER: In Redland they speak of little else.

PN171

MR GEORGIOU: Yes. The issue - I think to say that the key issue is whether the award and the EBA operate in conjunction with each other or whether one is exclusive of the other with regard to the current application. All of the case that Mr Wood relied on were to do with whether or not those employers were successor employers and therefore bound in the appeal by, I'm certain, McCallum. The question that needed to be decided by the Full Bench was whether the employer was a party bound to the agreement, whereas we're asking in this matter before you: is the award read in conjunction with the agreement and - - -

PN172

THE COMMISSIONER: Well, is that right? It was about - and I do think there are some distinctions to be drawn here but Mr Wood - and popped it in and continues to rely on it, but he says:

PN173

A Full Bench of the Commission held that a dispute over whether or not the employer was bound by the agreement, the question was not a dispute over the application.

PN174

Indeed, it's a question about whether a dispute over fact is a dispute over the application of the agreement.

PN175

MR GEORGIOU: And in the decision of the in McCallum - - -

PN176

THE COMMISSIONER: Yes.

PN177

MR GEORGIOU: ..... at paragraph 44, the Full Bench says, "We should add that we do not see any inconsistency between Commissioner Simmond's decision in either of the judgments in AMRS" - just to paraphrase it. In that case the majority took the view that the dispute in question was not solely about whether the employer was bound by the relevant agreement. SDP Kaufman took the opposite view. And it goes on. So the relevant sections that we rely on in that decision are paragraphs 42, 43 and 44 which I don't need to go into. With regard to - - -

PN178

THE COMMISSIONER: Why don't you need to - you see, the ones you rely on in McCallum are 42, 43 - is that what you - - -

PN179

MR GEORGIOU: I'll go through it in a lot more detail now then.

PN180

THE COMMISSIONER: Well, I don't say you must but - - -

PN181

MR GEORGIOU: Yes, I know. Sorry, I am.

PN182

THE COMMISSIONER: Because if it's - - -

PN183

MR GEORGIOU: I will.

PN184

THE COMMISSIONER: If it illuminates a point that you particularly rely on.

PN185

MR GEORGIOU: Yes, yes.

PN186

THE COMMISSIONER: All right. Well, it may help me if you do go into it.

PN187

MR GEORGIOU: Okay. Mr Wood relies on paragraphs 10, 12 and 17.

PN188

THE COMMISSIONER: Let me just find McCallum first. It's - - -

PN189

MR WOOD: Tab Q I think it is.

PN190

THE COMMISSIONER: Tab Q, is it? Yes. And you are in the 40s, aren't you?

PN191

MR GEORGIOU: Yes. In McCallum the issue was whether Tenix not being a party to the certified agreement could be bound by the agreement. It was decided that - whoever wrote these notes, it's terrible. Hang on. I have to read my own notes, Commissioner. The Full Bench decided that whether or not Tenix was bound by the agreement was an exercise of judicial discretion and not a determination of the agreement itself. However, in the present matter there's no dispute about whether the Ford Motor Company is a party to the agreement and likewise there is no dispute that the Ford Motor Company is bound by the agreement.

PN192

APESMA is not asking the Commission to exercise any judicial discretion but rather asking the Commission to determine that the award forms part of the agreement and determine that the issues in relation to the overtime cap and the graduate rates are part of the agreement. This matter is a dispute about the application of the agreement and is not a dispute about the validity or otherwise.

PN193

THE COMMISSIONER: That's your submission that you're referring to there rather than something from McCallum, isn't it?

PN194

MR GEORGIOU: Yes.

PN195

THE COMMISSIONER: I think the first portion of that material, you actually assert, do you, that there should be a finding or that it is the case that the award forms part of the agreement?

PN196

MR GEORGIOU: Yes. And we say that you can't interpret clause 1.2 in any other way.

PN197

THE COMMISSIONER: Yes.

PN198

MR GEORGIOU: Because the clause says:

PN199

To the extent of any inconsistency -

PN200

and they are key words that this agreement only applies to the extent of any inconsistency with the award so that if there was an overtime provision in the award not related to this matter, Commissioner, that said that double time would be paid on Sundays, and Ford said to the unions at the time: we have a real difficulty with that because we have operational problems. We want you to restrict overtime on Sundays to time and a half, and so we simply have a clause in the EBA, Sunday overtime shall be at time and a half. We don't need to make reference to anything else. The award applies except for that one clause and that - they both - both documents must be read one in conjunction with the other.

PN201

So we say that those words alone, "to the extent of any inconsistency", draw the awards into the EBA. This indicates that you can only read the clauses where they are relevant in conjunction with the award. The application of the overtime provisions of the award to the agreement is evidenced by the production capacity and asset utilisation provisions of the agreement. In the agreement in 4.7 it makes direct reference to clause 5.5.5(b) of the award. If you go to the EBA - and I will go through the various clauses of the EBA that refer to both overtime and structural efficiency, Commissioner.

PN202

In the case of the salaried employees the overtime section - and I will take the Commission to it - is dealt with by the time off in lieu provisions which are an ancillary part of an overtime provision. Let me get through McCallum first. I have got to finish with that so we can get on with it.

PN203

In asking the Commission to decide whether the award forms part of the agreement, to then determine whether Ford - the ceiling cap on overtime and the graduate rates of pay are a breach of the agreement, the association is not asking the Commission to exercise judicial power. The question of the applicability of the award to the agreement is a preliminary step in the process of settling the dispute about the application of the agreement, specifically the application of the overtime rates and the graduate level of pay. In this way our application can be distinguished by McCallum where it is stated by the Full Bench at paragraph 47 of that decision - and I'll quote:

PN204

Because we agree with the Commissioner the only real issue before him was whether Tenix was bound by ...(reads)... would have involved a purported use of judicial power. The Commissioner was correct in finding also.

PN205

In short, for that point, the award and the agreement interact to the extent that the overtime provisions in the award are applicable to the agreement. This is evidenced, we say, by the terms of clause 1.2. If there is a dispute over the interaction between the award and the agreement, McCallum does not deny the Commission jurisdiction. This is because any dispute over the interaction between the award and the agreement is not the only real issue before the Commission. The real issue before the Commission involves the application of the agreement with regard to overtime caps and graduate rates. Commissioner, if I can also go to - I have dealt with that.

PN206

THE COMMISSIONER: What, are you reading - Mr Georgiou, before you go off that point, so is this your position: you say that there is a dispute over the interaction of the award and the agreement in this case?

PN207

MR GEORGIOU: Yes, Commissioner.

PN208

THE COMMISSIONER: All right. And you go on, do you, and say that that constitutes a dispute over the application of the agreement such as to enliven LW and thereby provide jurisdiction?

PN209

MR GEORGIOU: Yes, yes, I always - - -

PN210

THE COMMISSIONER: But that's where McCallum hits you, isn't it?

PN211

MR GEORGIOU: No, I think the opposite. I think the fact that the - you can only read the EBA in conjunction with clauses in the award and there are references in the document to - in the EBA that cross-reference to points in the award. And one has to read - the example I gave of the overtime on Sunday, you don't have to replicate the entire overtime clause to deal with one issue.

PN212

THE COMMISSIONER: Well, that's a nexus case, isn't it?

PN213

MR GEORGIOU: Yes.

PN214

THE COMMISSIONER: You say there's a dispute - is this right, that the foundational point for LW must always be a dispute over the application of the agreement?

PN215

MR GEORGIOU: Yes.

PN216

THE COMMISSIONER: And you say if it - there are occasions where because of the co-working of the agreement and the award, the conjunctional operation, you're allowed - it's permissible to dip down into the award and see what the award has to say to inform the wording of the agreement, but the necessary nexus exists - - -

PN217

MR GEORGIOU: Yes.

PN218

THE COMMISSIONER: - - - to require that to be done and not to strain LW. But is it right - would you acknowledge that there always must be - because it strikes me that this is the point of departure between you and Mr Wood, there must always be capable of being said, when one looks at the matter in dispute and at its essence, that there is, having regard for the agreement, a dispute about the operation of the agreement? Or yes, the application of the agreement.

PN219

MR GEORGIOU: I was going to take the Commission to the - - -

PN220

THE COMMISSIONER: I don't want to disrupt your sequence of - - -

PN221

MR GEORGIOU: No, no, I'll go on to that point now because to deal with the issue of overtime and whether or not the agreement itself provides for overtime and overtime restrictions and regulates the issue of overtime - - -

PN222

THE COMMISSIONER: Perhaps we'll do this in 10 minutes' time because we're going to have a short break now and we'll come back on in 10 minutes.

<SHORT ADJOURNMENT [11.34AM]
<RESUMED [11.50AM]

PN223

THE COMMISSIONER: Yes, Mr Georgiou.

PN224

MR GEORGIOU: Yes, Commissioner, I don't have a lot more to go. The issue of whether overtime, for example, to use that one, is referred to in the EBA at clause 8.6. The enterprise agreement deals with time off in lieu as do predecessor agreements. The issue of time off in lieu is that an employee would be able to take time off in lieu of overtime rates as it accrued.

PN225

So there is a nexus there and in the 2000 EBA, Commissioner, there was also a reference to time off in lieu as it related to trades employees. So there is no reference in the current EBA, for example, to time off lieu for trades employees. That was in 5.8 of the 2000 EBA. Now, the company still applies time off in lieu provisions to both salaried and payroll employees. But one, to reference it, needs to go to different EBAs as indeed you would have to do to go to what was the applicable overtime rate, to the award; so one cannot be separated from the other.

PN226

THE COMMISSIONER: Yes.

PN227

MR GEORGIOU: And we say - and the 2000 EBA deals with the issue of overtime in greater detail for production employees. Again, there is an agreement reached by the parties that overrides the award but is not replicated in the 2003 EBA but still continues to have currency and is still applied by the parties so that the reference in 1.2, the relationship to other awards and agreements, those agreements where a matter is dealt with from 1991 onwards in an agreement continues to have currency unless there is an overriding provision in a subsequent EBA. Otherwise the whole industrial relations instruments that apply to employees would have no meaning and 1.2 really becomes irrelevant to what are the terms and conditions of employees at Ford.

PN228

THE COMMISSIONER: It strikes me, Mr Georgiou, that while there's an essential body of non-agreed or disagreed material or propositions abounding in this case, one of the things about which there's likely to be agreement is an understanding about - certainly at its base level, the capacity for agreements to call up a term in an award even though the terms of the award aren't incorporated in the terms, if it's necessary to deal with the particular issue that has some focus in the agreement. But it strikes me that the case against you on this ground is that there really has to be some - with some specificity there has to be some element in the agreement of the subject matter which is said to be in dispute and time off in lieu isn't the matter in dispute, but it's there and so that's in a philosophic - or perhaps in an initial sense it's a nexus, if "nexus" means no more than there is something which is referred to in both instruments.

PN229

But it strikes me, and it may be useful for me to put this to you, that the decided cases that deal with the reach of LW, whether at the High Court and then down into the Commission, really is saying something quite different and that is that there has to be - and Munro J's decision written - you don't need to read through it in the first place to see he was on the bench when you look at those, do you? But Mr Wood took us to that decision and it says that its essence - there really has to be something - the matter said to be in dispute has to be found - there has to be something in the agreement about which the dispute exists, and if the dispute exists primarily or predominantly or solely, perhaps not predominantly, but solely in the award, then that is going to provide an insufficient scope for that LW portal to get you through.

PN230

MR GEORGIOU: If you go to 1.3.3 of the agreement, Commissioner.

PN231

THE COMMISSIONER: Yes.

PN232

MR GEORGIOU: It says:

PN233

Throughout the life of this agreement all existing terms and conditions of employment shall prevail unless agreed otherwise by the parties. These conditions are derived from the awards and enterprise agreements binding on the parties in operation on the date of certification.

PN234

We say to you that that is a specific reference to all of the terms and conditions contained in the EBAs and the award become part of this agreement by that clause save to the extent that a provision in this agreement is inconsistent with those awards and agreements and therefore this agreement will prevail, otherwise clauses 1.2 and 1.3 are a nonsense and you might as well remove them all.

PN235

THE COMMISSIONER: But we can't have too many things prevailing, it strikes me. Only one monolith can prevail. There can't be several marching along.

PN236

MR GEORGIOU: Yes, yes.

PN237

THE COMMISSIONER: Let's look at that and it's easy to find ..... of expression in these things and that's not what this is a quest about. But what does it mean? "Throughout the life" - 1.3.3:

PN238

Throughout the life of this agreement all existing terms and conditions of employment shall prevail -

PN239

Now, you used "prevail" in the latter portion of the submission you've just put in its, I think, literal meaning, that is that a term in the agreement prevails over something else, that is over perhaps a term of the award if there is an inconsistency. But this isn't what this is about.

PN240

MR GEORGIOU: No - - -

PN241

THE COMMISSIONER: It strikes me that you're relying on 1.3.3, if I have followed - and I want to understand that point - you say that that subclause in fact is an incorporation term, is it?

PN242

MR GEORGIOU: They prevail. This clause also is found in enterprise agreement in the electricity industry, for example.

PN243

THE COMMISSIONER: Is it? Well, I - - -

PN244

MR GEORGIOU: And you don't have to be a rocket scientist to work out the two industries I deal with and where that clause has come from. And in other matters before the Commission the issue of what applies to employees as part - because we supersede a lot of the previous EBAs, if we have done the legwork. But in this case we haven't and that's the catchall phrase that says, "Whatever you had at the time of the making of this EBA in terms of" - - -

PN245

THE COMMISSIONER: Will continue to apply.

PN246

MR GEORGIOU: Yes. Applies except where this agreement overrides it.

PN247

THE COMMISSIONER: All right. Can we look at this, please:

PN248

Throughout the life of this agreement all existing terms and conditions of employment shall prevail unless agreed otherwise by the parties.

PN249

So, am I right in understanding, Mr Georgiou, that that means that if someone enjoyed a particular condition deriving from - we'll say the 1991 agreement, it'll continue?

PN250

MR GEORGIOU: Yes.

PN251

THE COMMISSIONER: It continues to apply. Unless agreed otherwise.

PN252

MR GEORGIOU: Yes, "These conditions" - - -

PN253

THE COMMISSIONER: All right.

PN254

MR GEORGIOU:

PN255

These conditions are derived from the awards and enterprise agreements binding on the parties in operation on the date of certification.

PN256

THE COMMISSIONER: Yes. It strikes me that's a description - and I put this to you only to get your response - of the fact that's portrayed in 1.2 and that is that 1.2 tells us that the agreement shall be read and interpreted in conjunction with the awards as varies from time to time and agreement - and we know earlier - we heard Mr Wood say that's obviously meant to be "agreements":

PN257

- specified below which shall continue to apply to relevant employees provided that to the extent of any inconsistency between the specified award or agreement and this agreement, the agreement shall prevail.

PN258

It strikes me that 1.2 makes clear that nothing in the agreement is intended to extinguish an earlier agreement unless there's an inconstancy.

PN259

MR GEORGIOU: Yes.

PN260

THE COMMISSIONER: So, if you have a right to a copy scroll under the 1991 agreement or some benefit - I don't mind it trivialised - but something which is not mentioned anywhere else, you keep enjoying that benefit.

PN261

MR GEORGIOU: Yes, and in particular with regard to the structural efficiency agreements which were - there were agreements struck with each union over classifications and relativities. I'm not trying to go to the case - the matter that we have before you. But if Mr Graham had a dispute over whether he was a class 3 or class 4 engineer. He could never have raised that matter in this Commission because if the argument put by Ford is correct, because it's not referred to other than in those two clauses in this agreement and so the issue of classifications become superfluous if the argument by the employer is correct.

PN262

THE COMMISSIONER: That is right because he's got an entitlement to be correctly classified having regard for his work so that is in essence a claim for correct payment for Mr Graham of $100,000, not $92,000. And where he should be, what is right, is under the bargain pay rates one has to go - using the Redland example - one has to go to another instrument, in that case, the award, even though the award is not called up in terms. But it doesn't mean that its conditions in the award flow back simply by virtue of their conjunctional operations.

PN263

The conjunctional operation fixes up the person had a 1991 benefit. Unless it's negated it continues to operate but it doesn't mean that any dispute over a matter set out in the 1991 agreement is properly understood a dispute under the 2003 agreement and thereby enlivened the Commission empowered by LW - whether it's empowered or not doesn't really matter, there's different opinion about that - but a door through which one can walk using LW. Now, I don't know whether that was particularly clear.

PN264

MR GEORGIOU: Yes, it is except that if - that one is clear but if there was some provision in an agreement the second tier agreements that removed tea and coffee breaks, for example, if Mr Graham were to agitate for a coffee break, which disputes clause can he invoke. All of the previous disputes clauses have been superseded by this agreement, even though it make reference to the 1995 one which the parties were perhaps too lazy to replicate.

PN265

THE COMMISSIONER: But that's an inconsistency but there's never been any inconsistency so we know that by the sort of - really the doctrine of paramountcy, the new agreement which has a disputes clause is the one that one refers to.

PN266

MR GEORGIOU: Yes. But if he agitates something that's not in an agreement and doesn't form part of this agreement, he has no access to a disputes process.

PN267

THE COMMISSIONER: It's not in the agreement?

PN268

MR GEORGIOU: Sorry?

PN269

THE COMMISSIONER: What is he agitating?

PN270

MR GEORGIOU: Let's say he's agitating for something in an award, if the company's argument is correct or the structural efficiency agreement which - the second tier agreement which is not here.

PN271

THE COMMISSIONER: Yes.

PN272

MR GEORGIOU: An example in the second tier is travel time interstate.

PN273

THE COMMISSIONER: Yes. But the answer would be not under LW. He may have a right under the disputes procedure in the award - - -

PN274

MR GEORGIOU: Which has been superseded by the disputes process in the agreement.

PN275

THE COMMISSIONER: That's not so. That couldn't be so. There'd a disputes procedure under the award or a new industrial dispute can be agitated depending on the scale and so on of the State of Victoria that Mr Graham would be in good shape, wouldn't he?

PN276

MR GEORGIOU: Yes.

PN277

THE COMMISSIONER: It's not an LW dispute. That dispute strikes me that you've just described would be a classic non-LW dispute. It's a ventura It's a ventura that flows one way. It doesn't allow for - the fact of a right in an award which operates conjunctionally with an agreement isn't an LW dispute.

PN278

MR GEORGIOU: Yes, I - - -

PN279

THE COMMISSIONER: Unless there's something in the agreement which is a sufficient touchstone to make it a dispute when properly characterised about the agreement because that's what LW says.

PN280

MR GEORGIOU: Except that my point is that there would - there is a problem in agitating a matter that isn't in an agreement where the disputes clause specifically displaces previous disputes clauses.

PN281

THE COMMISSIONER: Well, that might be so and this might sound a harsh thing to say, because I would hope that someone would be able to find an equitable remedy for whatever that problem might be. But it strikes me that LW is all about providing - under LT or whatever it is, the one that's not very frequently referred to - by virtue of the requirement in the Act for there to be procedure preventing it settling dispute provided for in every agreement. Agreements must contain a dispute and we all know post-Ampol it can be a very weak glass of lemon cordial, it doesn't have to say too much, but a dispute over the operation of the agreement which LW refers to has to be a dispute about the agreement.

PN282

MR GEORGIOU: Yes.

PN283

THE COMMISSIONER: And if someone somewhere else doesn't have access they really can't come around the back and use LW.

PN284

MR GEORGIOU: No, no, I agree with that and my point is that the parties have always taken disputes about any of those awards or agreements to this Commission where they have entrusted in the Commission the power to determine the manner.

PN285

THE COMMISSIONER: Yes.

PN286

MR GEORGIOU: And that is not available under the old Ford award. The old Ford award did not give that power so the implication is that the parties - and
Mr Mahon would probably better answer this than anyone else in the room - of all of the disputes that have been brought to this Commission between a party to the enterprise agreement has relied on the provisions of the 1995 enterprise agreement with regard to the power of the Commission to determine the matters, and they are to do with any matter in an award or an enterprise agreement that it has always been the practice of the parties, whether it is implied in clause 1.2 - - -

PN287

THE COMMISSIONER: I understand that submission.

PN288

MR GEORGIOU: Thank you.

PN289

THE COMMISSIONER: Yes, that's a submission which relates to industrial relations relationship. But you see, Mr Georgiou, you understand that I must be responsive. As soon as the special gong goes I have to be responsive to a proper application of LW. I can't do anything - - -

PN290

MR GEORGIOU: As I would hope - as I hope you would, Commissioner. We say that the facts in this case and the clauses in this case do allow for the Commission to determine these matters if the Commission pleases.

PN291

THE COMMISSIONER: Thanks, Mr Georgiou. That you for your submissions. Mr Wood?

PN292

MR WOOD: At Mr Georgiou's request I'll be very brief.

PN293

MR GEORGIOU: I never said that.

PN294

MR WOOD: Sorry, I didn't hear what you were muttering.

PN295

MR GEORGIOU: I was saying I look forward to your submissions.

PN296

MR WOOD: Just three issues, Commissioner. The reference, for example, to the time off in lieu issue which is asserted to be some foundational nexus simply referred to the 4-inch decision of Munro J that was previously alluded to in the AMRS decision. There is no nexus that could possibly be contended.

PN297

In respect of the second issue about practice or what might in a practical sense be applied, Mr Georgiou gave a couple of examples of that in different guises. All I can say in that regard is that the company is entitled to apply certain benefits to employees over and above its obligations under the agreements or awards and it's equally entitled to object to, in a legal framework, to matters such as this. So, it shouldn't, in our submission, be any guidance at all to how the Commission should respond.

PN298

The third issue, and again it's a very brief one - the reference to clause 1.3.3 of the agreement, it goes no further - no further at all - than the type of words that were considered by the Full Bench in the ANZ case. The words in 1.3.3 say that:

PN299

All existing in terms and conditions of employment shall prevail -

PN300

and I use the term "shall prevail" with emphasis and in contrast the relevant words in the ANZ case at paragraph 16 of that decision are in that case the award "will continue to apply". There's no distinction, in my submission, between the words "shall prevail" or "will continue to apply". They mean the same thing. The words were considered by the Full Bench in the ANZ case and they - as I have referred to earlier in my submission, those words or the words "will continue to apply" are, according to the Full Bench, not indicative of an intention to incorporate the provisions of the award. In my submission, nor can any inference be drawn from those words in 1.3.3.

PN301

Perhaps as an aside, it's an interesting issue that may indeed arise itself in the enterprise bargaining negotiations that occurs early next year and that may well be a matter that the parties take up to ensure there is greater certainty from
Mr Georgiou's perspective about what his intention is, but it's certainly clear on its fact that the Court or this tribunal must apply - must give words their ordinary proper meaning. We would say that that would mean that they're not incorporated. If the Commission pleases.

PN302

THE COMMISSIONER: Yes, thanks, Mr Wood. Thank you. I am going to give my decision now in this matter. Were I to reserve there would be a substantial delay so evident that the parties' interests really - I don't think would be advanced at all by their being a significant delay, although of course by virtue of proceeding immediately it does mean that what I am about to say will lack any elegance - it properly had probably precious little anyway.

PN303

I think the issues in this case do reduce to some propositions which can be dealt with and really must be seen in the full light of what is before the Commission at this moment; and that is a jurisdictional objection that the matters raised by the APESMA are not of the requisite nature, when one properly considers the agreement and the disputes procedure it provides for which of course we know derives from an earlier agreement, and the underpinning award.

PN304

The conclusion that I have reached is that their essentials - the propositions advanced by Ford must be accepted. It is my view that these are award-based disputes and it can't be said that they are disputes over the operation of the agreement. So, absolutely scant if not entirely lacking is reference in the agreement to the matters now said to be in dispute.

PN305

In saying this - and I have already - I have conferred earlier with the parties. One is aware about the way in which matters are regularly and indeed traditionally and indeed traditionally dealt with under these awards and agreements in the Commission and that there is something to be said, I think, for the parties taking the negotiations which are due to commence very shortly after the Christmas break for the parties to give some thought to putting beyond any doubt what their intention is about the interaction between these various instruments. Particularly where the possibly resource based but where it's necessary for the industrial entitlements to derive from a whole swag of agreements and several awards - in this case the award.

PN306

Saying that, however, is my attempt to deal with the industrial reality which is never capable of being entirely divorced from these things. I am also of the view that even allowing for the necessary context about which I was reminded by Mr Georgiou for the understanding of their submissions, that it is very likely indeed that one must come to the view that since matter really is a claim by the APESMA in relation to breach. I don't need to come to a final view about that. It is likely, in my view, that a declaration that the company is in breach would trench into impermissible powers but disputes, in my view, are not in their essence about matters which arise in the agreement and over the application of the agreement and rather are about disputes in the relevant award.

PN307

I am unable and I won't go into any great analysis about this but I am unable to accept that clause 1.2 and 1.3.3 of the agreement when they're properly understood, have the effect and the meaning and the legal implication that's contended for by Mr Georgiou and I'm particularly unable to accept that the agreement does call up in the necessary way, that is incorporated in terms of the provisions of the award.

PN308

For that reason, I must find and I do find that there is a jurisdictional deficit which means these applications can't proceed and it's for that reason that I'll now adjourn sine die.

<ADJOURNED INDEFINITELY [12.15PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #W1 MATERIALS SUBMITTED INCLUDING OUTLINE OF SUBMISSION AND LETTER DATED 30/09/2005 PN6
EXHIBIT #W2 OMNIBUS PN7