C2004/3600, Transcript of Proceedings [2005] AIRCTrans 313 (10 February 2005)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
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TRANSCRIPT OF PROCEEDINGS


O/N 8820
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT ACTON
DEPUTY PRESIDENT LEARY
COMMISSIONER CRIBB

C2004/3600
C2004/5202

SECTION 45 APPEAL BY WILSON PATENT
TRANSPORT PTY LIMITED AND OTHERS AGAINST
A DECISION DATED 26 APRIL 2004 IN MELBOURNE
BY COMMISSIONER HOLMES

MELBOURNE

10.03 AM, WEDNESDAY, 20 OCTOBER 2004

Continued from 19.10.04

PN436

SENIOR DEPUTY PRESIDENT ACTON: Ms Zeits?

PN437

MS ZEITS: Thank you, your Honour. I simply wish to briefly address a couple of issues this morning. I think it may be of assistance to the Commission, we have prepared a table of the - just of the ambulance officer classification but it sets out what was in existence immediately prior to the decision and the actual effect in dollars, so it simply is a table that it draws on the material that is already before the bench but puts it into table form.

PN438

Now the Commission will see the hand-written notes are mine, we had inadvertently included the SIPS which do not appear in the Commission as order so we have deleted those. But the Commission will see there the effect of the order of the Commission, the table - or part 1 of the table identifies the three rates that were applying immediately prior to his decision after first, second and third years of service. Item 2 sets out the 2003 rate for the C5, we have done these as at 2003 because they were relevant at the time of the Commission's decision.

PN439

Item 3 sets out the formula that was used by the Commissioner to come to the rate of $704.90, that is by applying 130 per cent to the then C10 rate and item 4 sets out the three service increment payments for each year, incorporates the CEP allowances and then the totals at the bottom set out what the proposed rate would be. I have spoken with Mr Friend about this, there is a debate between the parties about whether the $14.35, which is the CEP7 allowance should or should not be there. My understanding is that that allowance is required for an ambulance officer paramedic to be engaged and undertake paramedic duties but Mr Friend has a slightly different view on that and he can speak to that but we have incorporated it because we say for most practical purposes that is what applies.

PN440

When that is compared to the 2003 Metals Award, the C3 rate in metals at the time was $727.90 and that required an Australian Nationals qualification framework level 6 national advanced diploma or an engineering associate level 2, the rate for the C2A classification in metals at the time was $748.80 which is the national advanced diploma with a minimum of 15 modules with respect to supervision and training or an additional seven modules heading toward a degree.

PN441

So I simply put that before the Full Bench to illustrate what my clients - what the private sector appellants say, demonstrates the effect of the Commission's decision which was in effect not to adopt the C5 relativity from the - sorry, the C5 classifications, the key classification and bring it across, but which was to, we say in error, apply the 130 per cent to the level C10 fitter and the effect of that when one adds in the other provisions that form part and parcel of the rates that are paid leads to an inflated rate for those classifications and has a cascading effect through the other provisions in the award and I have already addressed the issue of what we say the appropriate classification should be.

PN442

There are just two other matters - or one other matter I should raise with the Commission. I am instructed as of last evening and that since the time of the decision of the Commission, the ambulance attendant classification is now subject to - and there is, I am instructed, still some debate - either a certificate 4 or a low level diploma, that is how it has been described to me, qualification. If the Commission accepts the private sector appellant's submission that the Commission entered into error with respect to this matter that I anticipate that that issue may require some further material to be produced before a final determination could be made or there is a distinct possibility that whatever occurs out of these proceedings will then be the subject of a further application to vary or adjust in fairly short order and certainly from my client's perspective we would like to get that issue resolved for some time into the future, so I simply indicate to the bench that that is my understanding with respect to that classification. Unless there are any questions I have no further submissions.

PN443

SENIOR DEPUTY PRESIDENT ACTON: Ms Zeits, I will mark the document entitled Comparison of Ambulance Officer Rates as WPT3.

EXHIBIT #WPT3 DOCUMENT ENTITLED COMPARISON OF AMBULANCE OFFICER RATES

PN444

SENIOR DEPUTY PRESIDENT ACTON: Thank you Ms Zeits. Mr Friend?

PN445

MR FRIEND: If the Commission pleases. I seem to have had two very different appeals run in respect of the same decision. Each of the two sets of appellants have approached it in quite diverse ways. There have been some overlap and some adoption of submissions but many things in each decision - I am sorry, many things in each appeal are not challenged by the other appellant. It is a very long and complex decision and takes some time to understand, that is not unusual in the context of a matter such as this. In due course I will take the Commission through the decision and endeavour to show how the Commissioner undertook his task in a very orthodox and careful manner and, in effect, did everything that was required of him and gave the parties, some might say, almost too many opportunities to put their cases into and to put submissions back and forth.

PN446

You will see during the course of the decision that often there is the first submissions, then the reply submissions, then further reply submissions going back and forth between the parties over a very long period of time to ensure that everything is agitated to the greatest degree possible. The complaints that are made might be put into perhaps three categories. There are general complaints, these are really from the private sector appellants in relation to a denial of natural justice or what is put an inappropriate placing of an onus on one or other party; there are complaints about the item 51 review, either the outcome of the review mostly the private sector appellants complain on the basis that the Commissioner got it wrong in terms of the weight of the evidence - I will come to whether that is an appealable ground - the MAS and RAV appeal points in respect to the review tend to be that the Commissioner didn't conduct a review - I will come to that in due course - and then there are complaints about the outcome of the section 113 applications and the decision in relation to those.

PN447

Each of the substantive matters before the Commissioner involved an exercise of discretion, either the item 51 review or the section 113 applications. In those circumstances it is obvious and it seems common ground between the parties, that House v The king applies, and what hasn't been done either in written submissions or oral, is for the appellants to direct attention to an error in the exercise of the Commissioner's discretion of the relevant kind which would enable this Full Bench to enter into a consideration of the issues.

PN448

My learned friend, Mr Parry, came closest to it yesterday when he referred the BHP case and he read a few passages from the case. This is the print S6142, I think it was handed up yesterday - BHP Coal and Bloomfield Collieries v the CFMEU. He raised this not in the context of discretionary error, because most of what he had to say involved an assertion that an item 51 review hadn't been conducted, and he talked about how the Commission deals with item 51 reviews. The relevant passage in the written submissions is at paragraph 11 of the first written submissions MAS1, where it simply said that no proper review was conducted, whatever that means, in terms of giving rise to a ground of appeal.

PN449

But in reliance of the BHP case he says well, this is what the Full Bench has done in relation to considering an item 51 matter on appeal. If the Commission turns to paragraph 6 of the decision on page 4, that deals with the granting of leave and the fact that the simplification process in this case was said to involve significant statutory policy and in 7 the Full Bench said:

PN450

In our view the need to ensure that the award simplification exercise in the major coal industry awards is completed in accordance with relevant statutory requirements and decided cases warrants the granting of leave to appeal -

PN451

matters are of such importance in the public industry in that industry. They then in paragraph 8 refer to the nature of the power being exercised as a discretionary one and in paragraph 9 this completely orthodox statement is made:

PN452

We have considered whether the exercise of discretion by the Commissioner ...(reads)... of the type that was discussed in House v The King.

PN453

In this regard we also note the statutory obligations imposed upon the Commission in the reviewable awards under item 51. In the event that there is found to be error an appeal bench may examine the material presented before the Commissioner and on appeal in determining the appropriate exercise of discretion. So in dealing with an appeal on an item 51 award simplification, the Commission adopts the orthodox approach. It is a discretionary decision, look for the error in the exercise of discretion. It is not a question of whether or not this Full Bench would have come to a different decision; it is not a question of whether or not the evidence in the view of this Full Bench supports one proposition or another, so long as the decision was open to the Commissioner on the evidence.

PN454

If there is an error in process - House v The King is directed at process - if there in process then the appeal can be conducted by way of reviewing, but absent that it doesn't get off the ground. Now, the assertion that the Commissioner failed to conduct a proper review doesn't really take us very far and obviously it is an introductory assertion. If there is no review conducted whatsoever, in other words if he failed to enter into the task that he was required to enter into, then it may well be that an appeal could be raised under section 45(1)(g) in respect of a failure to exercise jurisdiction, but once he entered into the task the question becomes, did he do it in a way which was tainted with an appropriate type of error.

PN455

It will not be, in my submission, sufficient for the appellants to say there is no reference specifically in each case to an item 51 review. A number of matters came before the Commission and they came before him in a number of ways. Mostly, what was before him and what is in contention here, a section 113 application to vary the award made in the context or at the same time as the review under item 51.

PN456

One would therefore assume, and the Commissioner was entitled to assume, that of all the relevant matters concerning the application of the provision, and whether or not it should be changed in some way, were put before him by parties. That is the way in which the Commission conducts these matters and it is not for the Commission to, in a sense, conduct cases for the parties on their behalf and some of the submissions we had yesterday seemed to suggest that that is what he should have done.

PN457

He has considered all of those matters, set them out carefully in his decision and set out reasons in each case for either changing what is in the award or not changing it. This Full Bench, in my submission, would not find that the Commissioner had conducted an item 51 review if he said, "I have conducted an item 51 review" without having actually done anything about it. In other words, the simple statement of the words wouldn't change the fact and the converse of that is that it doesn't matter if he doesn't in every case specifically say "and under item 51", it is the same thing.

PN458

In other words, my submission is that the Full Bench should look at the substance of what Commissioner Holmes has done in each case and consider whether or not he has, in dealing with material put before him by the parties in respect of the operation of the relevant clauses, reviewed the clause and made a decision, and in each case, and we will come to it in due course, it is my submission that he has.

PN459

If I can deal now with the question - the broader questions of denial of natural justice and onus. The denial of natural justice alleged by the private sector providers is put on three grounds: the first is the reliance by the Commissioner on his experience; the second is the reliance by the Commissioner on the inspections that he undertook, which they have repeatedly called views and there is a distinction and we will come to; and the third is an allegation that he didn't give appropriate reasons.

PN460

Before I do that, I would like to hand up one of the cases that was referred to in our written submissions, Lamb, which is Minister of Immigration and Multicultural Affairs ex parte Lamb: that is reported CLR (2003) 214 1. The relevant passages - if the Commission would bear with me for a moment - it commences paragraph 38, judgement of Chief Justice Gleeson, where his Honour, after analysing the facts, says that:

PN461

Even though there was a lack of procedural fairness, no practical injustice has been shown ...(reads)... it has not been shown that there was procedural unfairness.

PN462

As I have already indicated, there is no warrant for conclusion that a failure properly to take into account is the applicant's children. Then at 122 Haines J, half-way through the paragraph:

PN463

For present purposes it is enough to say that even if the department's letter ...(reads)... weight to be given to the effect of the cancellation of the applicant's visa.

PN464

Finally at 149 Kellerman J makes similar comments:

PN465

Return now to the facts of this case ...(reads)... more emphatically is not to the point and cannot avail him.

PN466

In other words, in dealing with the question of an alleged denial of natural justice, even if it be found that there is some potential procedural unfairness, it will be necessary to show that it would have made a difference or that it could have at least made a difference. Now nothing has been put in relation to that in respect of any of the matters in which the denial is alleged. The first issue is the reliance by the Commissioner on his experience. We have referred in a written submission to the Shipwright's case, quoted from it. It is totally unacceptable in my submission.

PN467

Members of this Commission are appointed because they have industrial experience, in fact it is a requirement in section 10 of the Act. One would need to point to some particular thing taken into account which might have led to some different evidence being given. In other words, if, for instance, the Commissioner in a matter have said, "Well, I know about X, Y, Z because I used to work there 20 years ago," and the employer would come along and say, "Well, we changed the whole of relations from 20 years ago, if you had given us an opportunity we would have said something about it," well, that would amount to a denial of justice, that would amount to an appealable error.

PN468

In fact, all the Commissioner did here in paragraph 111 is say, "I have accepted what the parties have put to me in relation to the level" - accepted the only proposition that was put to him in relation to the appropriate classification of ambulance officer in comparison with the ..... that is C5, and I will come back to that substantive issue later. Reasons dealt with in written submissions and referred to Osmond's case - I won't read to the Commission from that, but in my submission, the reasons of Commissioner Holmes in this case are very careful, very clear. Sometimes it is a little hard to get to the bottom of what has happened but by yesterday, I think, after having heard the oral submissions, particularly the private sector providers, which are somewhat different to the written submissions, particularly in the way of dealing with ambulance officers. The written submissions suggest that the Commissioner conducted a work value on ambulance officers, which he never did. And it wasn't suggested yesterday that he did, in fact what has been recognised is that he lined them up with C5 and then calculated a rate and that is fact what he did.

PN469

But there is no complaint about those reasons, there is complaint about reasons in respect of other matters. In my submission, what the Commissioner has done is to expose the arguments of the parties and to state in each case why he has preferred one over the other, and we will come to the individual circumstances later. The question of inspections does require a little development. As the Commission will be aware, section 110 of the Act gives power to the members of the Commission to conduct inspections into premises and conduct interviews. What has been put against us in relation to this is that the Commissioner was - or rather, is that the effect of what the Commissioner did was the same as a view conducted in a Superior Court.

PN470

Can I first take the Commission to the transcript in volume 2 behind tab 12, to explain how it was that the inspections came about. At paragraph 1619, Mr Flower is credited with making a submission which in fact I made. At 1621 I indicated to the Commissioner that Mr Quigley, who represented the private sector providers, had indicated a desire for inspections. In other words it was their request that there be inspections. At 1632 Mr Quigley said the question of inspections had not been finalised, the actual inspections that are to take place, and indicates arrangements in respect of those. So the inspections, notwithstanding the statutory power of the Commission, came about as a result of agreement between the parties that the Commissioner was to undertake this task. Now, if I can take the Commission to the decision which is relied upon from his notes with respect to views. That is Scott v Numurkah which, I think is in the book of cases, if I can find the right book - it is number one: this case bears some careful reading.

PN471

The matter before the Supreme Court in this case involved the Numurkah Town Hall where on certain days of the week a - I think the court calls it a cinematograph operator anyway, someone to show pictures in the Town Hall and the council also sometimes had dances in the supper room and the dancers were noisy and the motion picture distributor or the cinema operator, took an action in nuisance against the council for having the dances. Towards the end of the case, as a result of issues in relation - as a result of trying to understand the evidence, the judge - I think the judge suggested that they go and have a trial and see what happens.

PN472

So they had a picture show on and they had a dance band in the supper room and he took into account - the judge went with the parties and took into account what he saw and heard and the question before the Court was what use he could make of that. The Court was unanimous in its decision. At 309 they note - I am sorry, at 309 half-way through the page, there is a paragraph beginning:

PN473

At this stage attention should be drawn to a number of features ...(reads)... with the full consent and concurrence of both parties.

PN474

And, unhappily on this point, there is some degree of conflict between the parties which cannot wholly be resolved by recourse to the written transcript. Turning the page, at 310 half-way through the paragraph that starts the page:

PN475

It may perhaps be said that the course which his Honour took of excluding from his consideration his experience of the demonstration -

PN476

which he did

PN477

rather suggests that it did not place with the complete concurrence and consent of both parties.

PN478

But His Honour's attitude on this point was determined really by mistakenly regarding the demonstration merely as a view and by considering how far it is legitimate for it to be able to take into account matters observed upon a view of a locus and not by considering whether the parties had agreed that an experimental demonstration should take place and form part of the material before the Court. At the bottom of the page, three lines down from the bottom:

PN479

It would be strange indeed if the learned judge, having obtained that knowledge -

PN480

that is the knowledge he got from the demonstration -

PN481

with the acquiescence that the parties should be left in a position that he was quite unable to use it.

PN482

If that were so the learned judge would have been asked to be a party to a futility. Then on 312, paragraph which begins - the first paragraph of the page:

PN483

Of course, if the demonstration took place ...(reads)... the case would present no difficulty.

PN484

In our view such a conclusion cannot safely be reached; there seemed to be doubt that the objection was raised - I don't need to read on. There is then some discussion about what can be done with views and Fullagher J on 315, and the paragraph beginning at the bottom of that page over to the top of 316, which I won't read, concurs with the result of the rest of the members of the Court. Now, it doesn't assist the Full Bench, in my submission, to look at authorities about views. The role of the Commission is different. What occurred was inspections, those inspections were arranged by and took place with the concurrence of the parties.

PN485

In fact they took place at the request of the party who now complains of the use of the information obtained by the Commission in relation to - I have already, in the written submissions, referred to the agreement by Mr Quigley during the transcript with the summary of the inspections contained in the exhibit F28. I should also - I think I directed the Commission's attention earlier to section 110 in respect of the question of the ability to take inspections. That is not right, section 110 is the power of the Commission to inform itself, section 134 is the power to take inspections.

PN486

In those circumstances it is my submission that there can be no complaint about the Commissioner using the information he gained on the views. In any event, that information merely confirmed - I will withdraw that. That information concerned matters which were fully ventilated before the Commissioner. The issues that were relevant to the view and you can see this in F28, is the types of work that ambulance attendants and patient transport officers did; the types of people they transported, the circumstances in which they did it and there was a good deal of evidence about that. All of the parties before the Commission knew that those issues were in dispute and put their evidence forward in relation to it. Again in this case we don't have any suggestion that there is any sort of practical injustice even if there could be said to be a denial of natural justice in respect of .....

PN487

The question of onus is raised again by the private sector appellants in respect of a number of matters. In relation to the section 113 applications, my submission is really simply contained in the written submissions. The party moving for change has to demonstrate the need for that change. The position is obviously somewhat different in relation to the section 51 review, but if there is to be a request for some sort of change in relation to the end provision of the award under the review, then obviously the person saying that the provision doesn't work has to explain it, explain why or who says that the provision needs to be changed in order to comply with item 51 or to explain it and ought to produce some evidence in relation to it.

PN488

The Commissioner can only act upon what is put before him, and it would not be his role to enter into an enormous investigation of the operation of an award where either the parties agree that the provision is acceptable unless it obviously isn't on its face, or when one party says, "Look it doesn't work, it is not consistent with item 51 and these are the reasons why," and the Commission has said, "Well, those reasons on some occasions don't persuade me; those reasons that have been advanced don't persuade me." That is not an improper imposition of the onus and in fact MAS and RAV don't make any complaint in relation to that issue.

PN489

Another general matter which appears throughout the submissions of the private sector providers is that the decision made is against the weight of the evidence and I think I have already said that that is not sufficient to warrant the interference of the Full Bench, it has to be not open on the evidence. If I can deal now with the matters, the individual matters that are in dispute. The first of those is part-time employment, our submissions in relation to that are in the written submissions and I don't propose to add to them orally.

PN490

SENIOR DEPUTY PRESIDENT ACTON: Mr Friend, I should mark your written submissions.

PN491

MR FRIEND: Yes.

PN492

SENIOR DEPUTY PRESIDENT ACTON: I mark the written submissions in respect of the appeal by the MAS and the RAV as LHMU2.

EXHIBIT #LHMU2 WRITTEN SUBMISSIONS IN RESPECT OF THE APPEAL BY THE MAS AND THE RAV

PN493

SENIOR DEPUTY PRESIDENT ACTON: The written submissions in respect of the appeal by Wilson Patient Transport and Others will be LHMU3.

EXHIBIT #LHMU3 WRITTEN SUBMISSIONS IN RESPECT OF THE APPEAL BY WILSON PATIENT TRANSPORT AND OTHERS

PN494

MR FRIEND: Thank you. The question - the matters dealt with under the heading of Wages is much more complex. There seem to be three issues really between the parties in relation to this. The first is the minimum rates adjustment and as I apprehend the issues between us now they are much smaller than they had appeared on the ..... submissions and that is really an issue between the union and the private sector providers.

PN495

The second is the question of paid rates, whether it is a paid rates or minimum rates award that encompasses the MAS/RAV argument that he shouldn't have even gone down that path and that if he did, he was wrong and the private sector provider's argument that he should have gone down that path and when he did he was wrong, and the third is the appropriate classifications for ambulance attendants and patient transport officers. I will deal first with the question of the minimum rates adjustment and come back to what the Commissioner was supposed to be doing: go back item 51(4) of the schedule. That provides:

PN496

If immediately before the interim period the award provided for rates of pay ...(reads)... rates of pay consistent with sections 88A and B.

PN497

Now, there are a few things about that. There is a discretion in respect to forming the opinion as to whether the award operates minimum rates of pay and in addition to that there is a supervening discretion in respect of variation of the award. On top of that we have the principles of the paid rates decision -paid rates review decision, which I should probably also go to. That also is contained, just to keep the paper down, in the authorities of the private sector appellants, tab 9. It is reported at volume 123 of the Industrial Reports at page 240 - decision at page - except I think you have got a different copy, haven't you? Well, we have copies of the paid rates of the Industrial Reports - no, we don't, I am sorry. Heading Further in Decision of Rates of Pay - the Commission has that? The Full Bench there decided that:

PN498

All awards which provides a rate of pay which are not operating ...(reads)... should be subject to conversion.

PN499

Then set out the principles for that under heading 14 and provide that:

PN500

Awards will require review if they contain rates ...(reads)... of the August 1989 National Wage Case -

PN501

which have been adjusted and varied in some way, and then they set out the means for conducting the minimum rates adjustment. Now, it was relevant to the Commissioner in determining what to do with this award to decide what sort of rates were actually operating, and a good deal of evidence was put before him and argument, particularly by the private sector providers, to the effect that the award was a paid rates award or had been fixed as a paid rates award - I think they were really asserting that it was a paid rates award and that therefore there should be a minimum rates adjustment.

PN502

It was submitted to Commissioner Holmes from the bar table that there had been no minimum rates adjustment of the award. The submissions that I made on instructions Mr Quigley, for the private sector provider, said that he wasn't in a position to say whether that was so or not, one way or the other. Commissioner considered the material before him and made an equivocal statement about the nature of the award. In a sense it didn't matter whether he found it was a paid rates award or a minimum rates award because he then went on and decided to conduct a minimum rates adjustment which was what he had a discretion to do under the legislation and was probably obliged to do under the principles.

PN503

So in one sense his discussion of the paid rates/minimum rates issue was not necessary but it was part of the course he took in understanding the way in which the rates in the existing award had been fixed. Now, what the MAS and RAV are saying is that he should never have entertained the task at all and that what he has done has a potential to have an effect in future proceedings because it might constitute an award being regarded as a paid rates award for the purposes of wage fixing principles.

PN504

My learned friend, Mr Parry, didn't go to section 170LG he just made the submission but I better take the Commission to 170LG because my submission is that really there is no effect of this decision and there is nothing appealable about it: it is finding it. Paragraph (b) says:

PN505

A paid rates award is an award that has been regarded ...(reads)... of determining wages and conditions of employment.

PN506

Well, firstly, what Commissioner Holmes did did not constitute regarding the award as paid rates for the purposes - or not paid rates for the purposes of determining wages and conditions of employment. Secondly, that provision really only has operation in respect of section 170MW. In 170MW(7) is the relevant provision for the determination of a bargaining period for employeEs covered by paid rates award and that - the time at which the question there is directed is the commencement of the section which is December 1996.

PN507

Now, even if in some way some argument could be constructed that this decision would support an assertion that the award was paid rates in 1996 or not paid rates in 1996, it still wouldn't lead to any right to appeal and my learned friend, Mr Parry, blithely said we can appeal against the finding under section 45(1)(g),he didn't go to 45(1)(g) - I invite the Commission to turn to that provision - it a decision of a member of the Commission that the member has jurisdiction, it is clearly not that, or a refusal or failure of a member of the Commission to exercise jurisdiction, it is clearly not that in a matter under the Act.

PN508

You can't appeal against reasons, you appeal against orders. The Commission doesn't have to enter into this question and it ought not but for the sake of completeness and as a matter of law, I hand up the order of the Employer Relations Commission in 1992 - sorry, 1996, setting minimum rates which were the same as the rates in the Federal Award at the time. Now, there was some evidence before the Commission to this effect anyway but one of the arguments that we put was the minimum rates set by the Employer Relations Commission was exactly the same as the minimum rate or the rate in the Federal Award which is said to be a paid rate.

PN509

And my submission is that if you have got to go to that question then on the basis of the material before the Commissioner, and unfortunately that will involve going through the exhibits and some of the transcript, you will get to the conclusion that the award was operating as a minimum rate of pay. Now, having embarked upon the minimum rates adjustment the Commissioner chose ambulance officer as the key classification. That had been submitted to him as the key classification by the union. There is no principle that the key classification has to be a C10 classification but you will find a C10 classification in the award, you will find a key classification and you line it up and that is what it did.

PN510

There doesn't seem to be any complaint about that. His adoption of C5 - sorry, his adoption of ambulance officers at 111, the written submissions, refer to the passage of transcript in support of that and I won't not take the Commission to it now. Interestingly at 117 he notes that the private sector NEPT employers propose the following classifications and rates of pay - this is of the decision - and that is a table taken from exhibit P2 and there is a classification for ambulance officer at C5.

PN511

So it seems to have been common ground between the parties an ambulance officer was C5. Certainly MAS and RAV adopt the proposition that ambulance officer was C5 or at least there is no complaint about it. The complaint that is made today is that the rate that the Commissioner set to C5 was wrong. Can I take the Commission to WPT3? The first comment that I would make in relation to that is the CDP allowances should be regarded as irrelevant for the purposes of a minimum rate, they are allowances.

PN512

So the totals for the first, second and third year in row 1 should be reduced by that amount and similarly in row 4 CP Allowances should be ignored. Six is obviously part of the minimum rate in first, second and third year under the pre-existing conditions and Ms Zeits has indicated - and we agree - that the current award doesn't provide for additional SIPS payments, so those amounts of 73.61, $80.30 and 85.71 should just be ignored.

PN513

The rates for ambulance officers, the first year of 704.90; the second year of 712.30 and 718.40 are based upon the Commissioner adopting the process of multiplying the C10 rate by the relativity. In my submission that is consistent with the approach that should be adopted. If you line up the key classification with C10 and then you fix the rate. I can't see anything in the principles, the '89 wage case, minimum rates adjustment principles or in the way other matters that have been handled which suggest that it should be done in any different way and the Full Bench hasn't been taken to anything that suggests it should be done in any different way.

PN514

Having done that the Commissioner then preserved the pre-existing relativities and that can be seen in table 6 which is subjoined to paragraph 136 of the decision. And there seems to be no complaint about that. For the sake of completeness on this issue we prepared a document - the rates for ambulance attendants and patient transport officers have been fitted in to that scale and we haven't understood there to be any complaint about the manner in which that was done. In other words the ambulance - sorry patient transport officer the Commissioner fixed at C10, the existing C10 rate in the Metals Award would make that a lower rate of pay than C12 in this award because of the preservation of relativities.

PN515

So what has been done in the order to fix the rates for ambulance attendant and patient transport officer is to fit those levels within the range between the lowest rate and the key classification, so that the appropriate relativities are retained. If I can hand up a document which explains that. Sorry I said patient - clinic transport officer was C12, it is C11. You will see at the table under paragraph 4 the ambulance officer rate is given as 130 per cent, $704.90 cents. The C10 rate to preserve the relativity between that and C11 needs to be $635.50 cents. If the C10 rate was said to be equivalent to the C10 rate in the Metals Award then it would be below the C11 rate on the basis of the preservation of relativities. I don't know if the Commission wants to mark that?

PN516

SENIOR DEPUTY PRESIDENT ACTON: I will mark it, Mr Friend. The document entitled Fixing a Rate for PTOs and AAs on the Basis of a Decision of Holmes C, I will mark as LHMU4.

EXHIBIT #LHMU4 DOCUMENT ENTITLED FIXING A RATE FOR PTO AND AA ON THE BASIS OF A DECISION OF HOLMES C

PN517

MR FRIEND: Now, in dealing with the appropriate levels for ambulance attendants and patient transport officers can I say this that the manner in which the submissions were made by private providers really put forward a very mechanistic view of the task the Commissioner had to undertake. It is not simply a question of looking at the qualification and then saying well this is a certificate 2 that must be C11 or what have you. It is actually a question of looking at the work as well and looking at all of the evidence in relation to what work is done. If it were a very simple task we wouldn't have cases about work value if it were very easy.

PN518

The Commissioner undertook that. There was some criticism for him considering that the ambulance attendant - sorry patient transport officer was a certificate 3 rather than certificate 2 level, but in fact there was evidence before him at paragraph 2680 from Mr McDonnel from Victoria University that the certificate was about to be upgraded to certificate 4. We have heard from Ms Zeits this morning that that has happened. So he was entitled to do that on the evidence. He was entitled to take into account the work that he saw and the evidence that he heard. In my submission no error has been demonstrated about the manner in which he conducted the work value in respect of those two issues.

PN519

The argument against us really is that he just made the wrong decision. He has weighed the evidence up wrongly. That doesn't constitute sufficient grounds for appeal. If it came to the be the case that the Commission as presently constituted did wish to reconsider this issue there would be serious issues about the inspection, but even without the inspection all of the evidence of the witnesses of the union would need to be read. I imagine that because all of it concerned these issues at least in some part and there are a large number of transcript references which I should perhaps give the Commission for the sake of completeness: 679 to 84; 1677 to 87; 1727 to 28; 1940 to 49; 2014 to 15; 2108 to 26; 2188; 2418 to 21; 2688 to 89; and 2694 to 97.

PN520

Now, that is really just the highlights of the evidence considering this issue. The way the matter was run by the union was that ambulance attendants did in effect in substance the same work as ambulance officers had done when their work was last work valued. And the unions sought a higher classification and the Commissioner ultimately arrived at for ambulance attendants and a lot of the evidence had to do with the changes in the work of ambulance paramedics over the last 10 years. Our fundamental submission is that there is no error in the manner in which the discretion has been exercised and the Full Bench ought not to intervene.

PN521

Incremental payments are raised. It is not abundantly clear how they fit in to the appeal, but there is some criticism of the existence of incremental payments. The Commission - if the Commission turns to the 2002 award as it was made which is attached to the union's submissions as attachment C, the decision and order. Bear in mind this was the position that the parties had reached in July 2002 and said well we want you to make, as part of the simplification process, an award in this form and we will go on and deal with all the remaining contested matters in due course.

PN522

There is nothing about - sorry, pay rates are not included but there is included columns for year 1, year 2 and year 3. Clause 12 which was by agreement provides for the movement of an employee through the increments. An employee must have 12 months service at a particular salary point; must have acquired new or enhanced skills; must have undertaken relevant in-service or refresher training and given satisfactory performance. In terms of qualification for increment, that is not a service increment it is completely consistent with the type of incremental payment which was found to be appropriate and allowable in the pay rates review. I won't read the relevant parts of that to the Commission, but it is found under the heading Incremental Payments, in part 13 of the decision in 254 of the Industrial Reports reported.

PN523

In making submissions on this point Ms Zeits a number of times mentioned something which also arose at other points of her submission about public sector awards and private sector awards, seeming to indicate that public sector awards were somehow still paid rates or had some different sort of status or standing. We don't see that in any way, the Commission's awards are all minimum rates awards and by now, I suppose there are still some going through the certification process, all have undergone a minimum rates adjustment.

PN524

Now, the next matter that is convenient to deal with as the Commissioner dealt with it at this point is the question of whether a new award or separate award - separate part of the award should be made for the private sector providers. This was a 113 application. The Commissioner deals with the application at 230 and following. Now, he dealt with the arguments that had been put to him. At 238 he says - he summarises the arguments of the private sector appellants:

PN525

Quite simply they indicated that the existing award is not a minimum rates award and that as it had its genesis ...(reads)... which demonstrated the benefits and I am unsure of the gravity which they placed on the application.

PN526

He then decides not to make a new award. Now, there are perhaps two complaints made about this. It is not as I understood it from the submissions yesterday the finding that he wasn't convinced on the basis of material put before him was not challenged. What was said instead was that he should have come back and said, "Well, you haven't given me enough. If you really want it give me some more," or do this or in effect run the private sector providers case for them and that is not his role. He has to deal with the materials put before him and if it doesn't satisfy him that something should be done well that is an appropriate exercise of discretion and there is no error in the exercise of his discretion.

PN527

The second complaint is that he looked at the file, I have referred in my written submissions to the reference to the involvement of the private sector providers in the making of the first award. So again even if that were to constitute a denial of natural justice which would be hard to see, there is no practical injustice and none has been pointed to. What would they have said? They haven't said it is wrong. It just doesn't lead anywhere. So in my submission there is nothing that turns - there is no error disclosed in respect of that part of the decision.

PN528

Higher duties we don't need to consider because there is no appeal. Methods of arranging hours of work was an application by the union. It really arose out of an application by the private sector providers. The Commissioner notes at 281 that:

PN529

The written submissions on behalf of MAS and RAV did not address this issue and exhibit A2 reveals it was not a matter at issue between the public sector employers and the union.

PN530

The point in respect of this was that the provision which was proposed was supposed to be a simplified provision of that existing in a previous clause 11. Exhibit A2 shows that there was no issue between the union and MAS and RAV in relation to that clause, the private sector employers wanted something else. I have had the opportunity following yesterday to take some instructions from my clients, their intention as it was understood to be the intention of both them and MAS and RAV in respect that this provision was to simplify the existing provision not to change it. If the Commission were minded to we would be content - but we don't see the necessity if the clause is properly understood - but we would be content to remove the words from 23.1.6 the final words "at least seven days before the date of the required change" which seems to be the complaint.

PN531

SENIOR DEPUTY PRESIDENT ACTON: So 20?

PN532

MR FRIEND: 23.1.6.

PN533

SENIOR DEPUTY PRESIDENT ACTON: You are content to remove which words?

PN534

MR FRIEND: "At least seven days before the date of the required change." It had never been the intention of the parties as I understood it to prevent people being called in to fill in for sickness or unforseen circumstances. The clause was intended to refer to changes in rosters which is a different matter, but as matters stand it can be simplified further by removing those words which probably takes whatever sting was in them if there was any - and we don't think there was - we are content with that.

PN535

The next part of the decision which is subject to appeal is only subject to appeal by the private sector providers, Hours of Work, part 8 commencing at paragraph 336. The Commissioner set out the relevant positions of the parties and commenced his consideration of the issues at 347. At 349 he indicates he adopts not the union's primary position, but a secondary position which is to insert a provision which is comparable to that in the Hospitality Award. We then look at the argument that is set up by the provide sector providers in WPT1.

PN536

First - this is at paragraph 61 of the written submissions. It is said that the Commissioner failed to provide adequate reasons. In my submission that is not sustainable. He said in 349 he saw merit in an option being available to the employee and the employer which provides some flexibility in this aspect of time off in lieu of direct payment for overtime. It is a discretionary decision. Imposed an onus of proof - well, he considered the various proposals which were put before him. He adopted one of them which was no party's preferred position. In saying that he wasn't persuaded to adopt that of the private sectors providers and MAS, he can't be said to be imposing an onus of proof. He is simply considering the matters before him.

PN537

Paragraph (c) says that he was in error because he rejected the application of the appellants and that doesn't give rise to an error in my submission. Then (d) is no proper basis for rejecting and that is really the adequate reasons point recycled. And (e) it was not reasonably open to him - and in my submission we haven't heard anything that would suggest that that is the case. It is clearly a matter that was within the threshold on the basis of what was before him. Stand-by is the next issue that is one that is between the union and MAS and RAV. The gravamen of the complaint against us - rather against the Commissioner there is that he didn't conduct an item 51 review and I have dealt with this in my general submissions at the beginning.

PN538

Really, he has considered all the matters before him and he has come to a decision, you don't have to use magic words. Nothing in the written submissions anywhere points to material that was put before him that he should have taken into account. In my submission the appeal point in regard to that is ill-founded and we rely on our written submissions here. Similarly, I don't think I need to say anything particular about on-call and recall, we will rely on our written submissions.

PN539

Something said - moving on to fleet maintenance officers and communication call takers, there was something said about - yesterday about the reliance of Commissioner O'Shea's decision in respect to communication call takers. What wasn't referred to was what the Commissioner said in 408 of the decision:

PN540

In the subsequent order issued by Commission O'Shea the classifications of FMO and mechanic were listed under ...(reads)... the parties was no contradicted during the proceedings before me.

PN541

I can hand up a copy of that order to the Commission. So there is an existing position in relation to field maintenance officers - sorry FMOs, fleet maintenance officers. MAS and RAV were seeking a change and the Commissioner considered that change and he decided that he wasn't persuaded to make it. There is nothing controversial about that. He considered the issues before him. He considered whether or not there was material which would justify him changing those employees and reducing their entitlements or operational entitlements to clerical entitlements and he decided not to and we haven't really seen any error in the exercise of his discretion pointed to or anything that would amount to a complete failure to embark upon an item 51 review.

PN542

The same argument applies in relation to communications call taker. Long service leave is the next matter and that is simply between the union and the private sector providers, and the circumstances all including those that went against us by way of submission, is that he should have made a different decision. He wasn't persuaded - the Commissioner wasn't persuaded by the material in submission that were put before him to do that and no appealable error was disclosed. Annual leave raises an issue that we already have raised. There was a complaint about no item 51(7) review in respect of annual leave. The Commissioner was not engaged in an item 51(7) review of that clause.

PN543

Even if he had of been what he did was sufficient to constitute it, but the - if the Commission can turn to attachment C to our submissions and you will see that clause 31 makes provision for annual leave. In other words in July 2002 the provision which was ultimately construed by Merkel J in the Federal Court was in the award. So what was before Commissioner Holmes was an application under section 113 to vary that and to reduce the amount of leave loading payable to employees. There has been considerably complaint about his comment in respect to accrued days off. The question of whether or not leave loading is payable in relation to accrued days off is a question of construction of the clause as it then existed.

PN544

Our written submissions make reference to the passage where the Commissioner's attention to the application of the clause to leave in lieu of accrued days off was drawn. In other words in part of my submissions I said that. But it doesn't make any difference he didn't do anything which changed the clause or the operation of the clause in respect of accrued days off. What Merkel J decided in his decision was that annual leave was annual leave and if you had days added to annual leave because you were a shift worker, well you got your 17 1/2 per cent loading, there wasn't two types of annual leave on a proper construction of the clause.

PN545

The Commissioner was asked - if I can just explain it a bit better - what was in effect argued before Merkel J was that because - there was four weeks annual leave which you got your 17 1.2 per cent loading on, any other days which are added to your annual leave because you are a seven day shiftworker or for whatever purpose and there were provisions under the award which did that, didn't attract the 17 1/2 per cent loading. Notwithstanding that the clause in the award said 17 1/2 per cent loading on all annual leave taken.

PN546

If you take - if the effect of your entitlement is to have days added to your annual leave then on a proper construction of the award as it then stood and as it stands now, you get the leave loading on the days as you take as annual leave, no matter whether they are given under one part of the award which gives four weeks or another part which adds time to your annual leave bank. Now - - -

PN547

SENIOR DEPUTY PRESIDENT ACTON: That is where you take your rostered days off, add on to your annual leave and get 17 1/2 per cent annual leave loading?

PN548

MR FRIEND: If there are - there are some provisions in the award - it mostly came about because of the fifth week of annual leave for seven day shiftworkers and there were some other provisions in the award which add more leave and Merkel J said well, once it is annual leave it is annual leave and you get the loading. Now, what the Commissioner was asked to do was to change that back to four weeks on the basis that there was a principle that you only got the 17 1/2 per cent on the four weeks. That was the case before him and that was the case he decided. The material before him put by the union was that that wasn't the Commission's standard at all and there are numerous awards in which the leave loading was paid on more than the four weeks. And he made a finding that the case for change hadn't been made out.

PN549

SENIOR DEPUTY PRESIDENT ACTON: Is there numerous awards of the Commission where the 17 1/2 per cent is paid on rostered days off?

PN550

MR FRIEND: I don't know, your Honour. We had a pile this high. There are a range of different bases upon which time was added to annual leave. It is - the point I make in relation to this is that nothing Commissioner Holmes did changed the existing state of affairs, he just said I am not persuaded to change it from what has been declared.

PN551

SENIOR DEPUTY PRESIDENT ACTON: In light of Merkel Js decision has the relevant employer paid 17 1/2 per cent on accrued days off which are added to annual leave?

PN552

MR FRIEND: No, I don't think so because it wasn't asked for. It wasn't asked for in his decision. It was asked - there were two - as I recollect - two bases: there was the fifth week and there was another basis on which days were added to annual leave. I think it was in lieu of overtime. Days added to annual leave in lieu of overtime and that, your Honour, supports the way the award works. I think there are some awards of the Commission - some other awards of the Commission make that provision, but in that we are dealing with an appeal here there is no demonstration of error in the way the Commissioner conducted the matter in my submission. Pardon me a moment?

PN553

The submission is that save for the offer as it were that I made in respect to one matter leave to appeal should be denied in both matters, or if it is granted the appeal should be dismissed. Unless there is anything further those are the submissions of the union.

PN554

SENIOR DEPUTY PRESIDENT ACTON: Thank you, Mr Friend. Mr Parry?

PN555

MR PARRY: If the Commission pleases. I think I am moving too far down this end of the table to be totally comfortable.

PN556

MR FRIEND: The first time.

PN557

MR PARRY: If the Commission pleases. If I could start with the proposition that - which was put in response to our proposition that there hadn't been a review conducted under item 51(6) or (7) in a number of cases and in particular I think the references were certainly to on-call, stand-by, recall and also with regard to annual leave. Now, my learned friend made the submission that you don't need magic words; that one can almost assume that a review has taken place even if there are no magic words used and no indication clearly appearing in the decision that such a review has taken place.

PN558

Now, our submission on that is the Full Bench can't simply assume such a review has taken place if there is either no reference to it taking place or no assessment as against those criteria set down in item 51(6) and (7). We submit that unless the decision demonstrates that there has been such a review then the clear inference is that there has not been such a review. Now, we accept that one doesn't necessarily require each and every issue to be assessed, but we have in our written submissions made clear that review issues were raised by MAS and RAV and in some cases the private providers and the employers did seek a review under item 51(6) and (7).

PN559

Now, we do make the observation that the recent decision of the Full Federal Court in re AIRC makes clear the dangers of implying that something was in the mind of a Commission member when it was not expressly dealt with. So in the present case our submission is that in some cases it is clear the Commissioner does say he is conducting a review and we don't take issue with that, but in other cases he treats the matter only in the context of the application by employers or unions, and we submit that that fairly clearly indicates that no review has taken place. And we have set that when a review was required and when a review didn't take place out in our submissions.

PN560

Now, my learned friend didn't deal with the minimum part time issue, the two to three hours so there is nothing I have to particularly add to our submissions with regard to that. He did make submissions with regard to paid rates and the approach taken by the Commissioner. Now, in a way our appeal argument here is we accept not a simple or straightforward one and it came about because in paragraph 92 of the Commissioner's decision he in essence starts out asking the wrong question. In 92 he asks:

PN561

In considering the question as to whether the award which contains wage rates and appendix 3 is a paid rates award, I have had regard to the paid rates review decision.

PN562

So the Commissioner starts off asking the wrong question and we contend of course that that was a question that it was not the question he had jurisdiction to ask or consider. The question he had jurisdiction to ask or consider was whether the wage rates were minimum wage rates within the terms of item 51(4). So he assumed jurisdiction to ask or answer a question which we say he didn't have. And in substance and in reality we say this is a decision that he has jurisdiction on this issue as to whether the award is paid rates or not. And he does this as we quite happily accept over arguments which we agree with and that it was a question he didn't need to ask and it was a question that was outside, we say, the jurisdiction that he had to ask.

PN563

Now, we don't appeal this matter as a party, because my learned friend is right we are not appealing against an award or order here, we are appealing against a finding as we say in a decision. And that is not something that we are party to, but we are under subsection 45(3)(d) an organisation or person aggrieved by the decision. And we are aggrieved because that decision arguably and we accept arguably affects our legal rights. Now, our standing as a person aggrieved I think has been dealt with by the Full Bench of this Commission on a number of occasions. I don't have an authority to hand up at present, but there was a reason decision of this that I recall in Aircraft Industries v Qantas Airways Limited award appeal, 14 December 1990, print J5922 where their Honours Ludeke and Munro and Commissioner Harrison dealt with this issue of whether one is aggrieved or not.

PN564

And they essentially said well one doesn't read it narrowly one looks - one doesn't require legal rights to be affected, but one requires something above the position of the general public. Now, we also accept that we can't appeal against an expression of opinion. Now, we assert that the combination of section 170LG and 170MW(7) put this finding as we describe it in a different category. We see it as inevitable that if there was to be an argument regarding the status of this award under 170MW that people would be referring back to Commissioner Holmes' decision and saying well the Commission has regarded it as such.

PN565

It is all very well for my learned friend to argue, properly as he does, that it really doesn't affect us but it might not be my learned friend that appears next time in this case. It may well be the position that this is a matter of great significance further down the track and indeed it is incumbent on us the public employers to seek to appeal this and we say we have grounds to so do. We say as I have said that it was done on imperfect and incomplete material. It is a finding we say that was wrong and we were entitled in the proceedings before Commissioner Holmes to take the position that it was irrelevant. It was an irrelevant consideration. We finally say on this that a decision of a Commissioner in whole or in part can be quashed and that is section 45(7) and our primary position is as I indicated that that finding be quashed on the grounds that it was irrelevant and outside the jurisdiction the Commission was exercising.

PN566

If the Commission were minded to embark on the exercise of making the assessment of whether this award was paid rates or not, well we have provided some material in argument with regard to that and we say it wasn't paid rates. That was an error in itself. Now - - -

PN567

SENIOR DEPUTY PRESIDENT ACTON: You say it wasn't paid rates?

PN568

MR PARRY: It was paid rates. Yes, strike it from the record. Yes. Now, to move on with regards of methods of arranging hours of work I think my learned friend has made what he firstly said they wouldn't oppose and then he said was an offer with regard to removing certain words. As I understand that that is indicating in effect that our appeal on that particular ground should be upheld and the Commission should exercise its powers under section 45(7) to make an award or order dealing with the subject matter of the decision or Act concerned. And we say that is the appropriate course for this Full Bench to follow.

PN569

Now, with regard to stand-by, on-call and recall I made submissions with regard to each of those matters yesterday. We say they were matters that did require review and it is manifest from the Commissioner's consideration of each of those matters that no review was conducted and the failure to conduct a review was we say a fundamental error when not only have the employers sought such a review, but we say there was an obligation on the Commission to conduct a review under item 51(6) and (7) or at least to form the view in item 51(6) as to whether it was appropriate or not to conduct such a review. And there is nothing in the decision of the Commission on any of those matters which indicate that he formed that view or didn't form that view.

PN570

The position with regard to the fleet maintenance officers also has the aspect that my learned friend took the Commission to in paragraph 408 where it wasn't in dispute that back in 1997 the parties put up a form of order which wasn't in contest, which was accepted. Now, that order as it stood was in the context of proceedings before Commission O'Shea which were not dealing with the issue of where FMOs and CCTs should be placed, that was not a matter argued in those proceedings and it wasn't a matter on which he made any findings or gave any consideration to. As is clear from the decision of Commissioner O'Shea that decision was about rolled-in rates and we say there is no assistance to the present Commission and it was irrelevant really as a matter that Commissioner Holmes should have taken into account.

PN571

Now, finally annual leave. Now, I think I handed up yesterday the attachment N to our reply which was the application by the employers to vary the award. Now, at that time it may be accepted that there were proceedings in the Federal Commission that were ultimately heard by his Honour Merkel J and there were proceedings alleging that the employers had been in breach of their annual leave loading obligations in respect of that extra weeks period that was added to annual leave for people that - I think my learned friend said - did shiftwork, an extra five - an extra week's leave. That was the debate essentially in that matter. It had nothing to do with rostered days off.

PN572

Now, those - the application was filed on 25 June 2002 and the argument before Merkel J was that the provision needed construction, interpretation and the interpretation went the way of the union and that decision was handed down by Merkel J some time in September I think. So it was after the application had been made to the Commission. Now, this was an application that was the subject of submissions and those submissions are in the appeal book filed by the employers in exhibit MR2 where the employers I represent put forward argument that the 17 1/2 per cent loading should only apply to four weeks annual leave.

PN573

Now, we took the Commission yesterday to the very last part of the decision and it is manifest that the Commissioner simply didn't deal with the employers application. My learned friend simply advanced no argument with regard to that because it is crystal clear that our application has never been dealt with by Commissioner Holmes. Now, obviously it is a fairly significant application because firstly it deals with the four week - inevitably end up dealing with the four week period that - I am sorry the one week period for shift loadings and there is authority in the Commission that you can add 17 1/2 per cent to that as was argued before Commissioner Holmes, but the Commission as constituted asks my learned friend about whether the 17 1/2 per cent is paid on RDOs that are added to the period of annual leave, or taken at the same time and as I recall the material before Commissioner Holmes there wasn't any evidence of that or any suggestion that there was an award of this Commission that would add it to RDOs.

PN574

That is a matter that we would want to present significant argument with regard to, but ultimately what has happened is that the Commission hasn't dealt with our application and our complaint is that he hasn't performed the jurisdiction that was invoked and we seek that jurisdiction be so invoked. If the Commission pleases I have nothing further.

PN575

MS ZEITS: If the Commission pleases the fundamental basis upon which the private sector appellants have appealed is that they were denied natural justice and the effect of that denial has permeated the entire decision of the Commission. The Commission had been referred to an authority this morning Miniers case that my friend, Mr Friend, referred to we simply say this that was an administrative decision of a Minister of the Crown. It was not a decision of a Tribunal and it was clear from the rationale of the reasoning of the High Court in the case to which we referred the Commission to yesterday - Numurkah - that the matters to be taken into account are it wasn't the fact that the Commission in this occasion obtained information whilst out on inspections, it was that he obtained information of which the private sector appellants were not aware, did not raise it with the private sector appellants and then proceeded in his decision - I took the Commission to it yesterday - to rely on that information in his reasoning process.

PN576

We say that is a fundamental denial of natural justice and the private sector appellants are entitled we say to have the decision quashed and those matters revisited. There was in effect no full ventilation of the matters that the Commissioner was proposing to take into account. We support what my friend, Mr Parry, has to say about the issue of item 51 and that there can be no assumption that an item 51 exercise has occurred and we say that in this case it was particularly important given that there were a number of applications before the Commissioner, not simply the procedure that was underwrite on 51.

PN577

The somewhat vexed issue of paid rates versus minimum rates, I think it is fair to say that the parties before the Commissioner were dealing in a context where all of the parties have used over many years the vernacular paid rates versus minimum rates. It has been language that has been used within this Tribunal for many, many years. It is clear that the criteria under item 51(4) are distinct from the criteria under 170LG and Part VI(B) of the Act, they are different considerations. The test is different.

PN578

What has occurred in our submission is that in the private sector appellant's reliance upon the history of the award for determining the item 51 for test, the Commissioner has confused that with the 170LG test and that is apparent from his decision we say. What we say is and what we say was important from the private sector appellant's perspective is that embarking upon the item 51 review the Commission was required to determine under item 51(4) which of the two subsets were applicable, whether it was acting as actual rates or as minimum rates.

PN579

The vernacular that was used by the parties was clearly paid rates versus minimum rates, but that is clearly what the item 51(4) test was and to that extent we say that the Commission was required to consider the history. And I must say we find it somewhat disingenuous that the transcript that we attempted to submit in entirety yesterday, we would have thought that the history of the award was in the interests of both - of all parties to be accurately reflected before the Commission. There can be a debate about what it may or may not be now, but the history we would have thought and the assertions made and the parties acceptance of the position before the Industrial Relations Commission of Victoria, we would have thought was a matter of common interest that should properly have been ventilated by those who had the knowledge. And we say that that was equally the respondent's responsibility before the Commissioner.

PN580

And we say he entered into error because he didn't embark upon an item 51(4) review by first properly determining - in fact what he found was it was more likely than not I think was the - he thought it was likely it was a minimum rate and we say that simply wasn't an appropriate finding. That is at paragraph 96.

PN581

SENIOR DEPUTY PRESIDENT ACTON: Ms Zeits at page 18 of the page we did allow in the Commissioner refers to a paid rates award.

PN582

MS ZEITS: Yes, that is right. And we simply say that that in terms of said in history for what was then embarked upon as an item 51 review was significant, but that sits under our primary submission of course relating to the denial of natural justice issue. The - my friend, Mr Friend, tendered a decision of the Employee Relations Commission of Victoria - I don't know if it actually received a number, I think he handed it up, and indicated that the rates were the same as the Federal. At the time that award of the Victorian Commission ceased to operate which was 1 March 1993 there was a subsequent amendment to the Employee Relations Act of 1993 that introduced the capacity to disinter - was the way we recall it - disinter the awards of the Commission that had allegedly expired, give them an $8 a week wage increase in accordance with a national wage case and then re-inter them.

PN583

That happened at the end of 1993. After the Act was further amended in May of 1995 allowing for the introduction of industry sectors, what then occurred is that there was a - the legislature had overlooked the fact that it effectively had wiped out all of the awards that were then operating as notional individual employment agreements. The Employee Relations Commission of Victoria made orders basically picking up the old expired awards plus the $8 to then give a further national wage increase. That was the legislative environment in which this order - award was made in September of 1995 and we say there can be no reliance upon this whatsoever in terms of what was occurring in the Federal Commission. This was simply a picking up of what was already being adopted - what was being adopted with respect to all awards notional of the Victorian Commission following the 1995 amendment whereby we were picking up the national wage increases as they occurred.

PN584

SENIOR DEPUTY PRESIDENT ACTON: Just so I can understand your submission, your submission is that the rates that are set out there - for example, the first rate $643.15 and then there is the $8 second safety net adjustment and then there is - they are totalled, that first rate of $643.15 was the rate as it stood prior to the cessation of the Industrial Relations Commission of Victoria Award was it?

PN585

MS ZEITS: I am not sure whether this was the first $8 - I can't remember now it was too long ago - whether it was the first $8 or the second $8 that was introduced. My recollection is that that is right, the 643.15 was what applied at the time the Commission came to - or the awards came to an end. The $8 represented the exercise that occurred at the end of 1993. What then occurred was that the Commission was given power to set hourly rates with respect to ordinary hours up to 38, so what you will see there in the final column is the hourly rate that was then introduced simply dividing the adjusted minimum wage - which was the jurisdiction of the Commission to set minimum rates - by the 48 hours that was the limit of the jurisdiction to achieve an hourly rate.

PN586

Now, in his submissions Mr Friend took you to table 1 at paragraph 117 which was the rates that were sought and then referred to various transcript references. We simply note that at paragraph 1682 of the transcript what was sought by the respondent in the proceedings was not the relativity of 130 per cent, but a rate between C3 and C5; that is what is said in 1682 - paragraph 1682. We say the effect of the Commissioner's decision is that he has given a C3 rate but called it a C5 relativity and we say that he has entered into error on that basis.

PN587

With respect to incremental payments we simply say that at volume 1 tab 5 is the application of the private sector for a separate award or part of award and the wage rates sought in that did not include an application for incremental payments, we say therefore it is quite clear to the Commission that that was an issue the private sector appellants never sought to have carried forward, that the interim order that was made was simply made as a holding pattern while those matters were agitated before the Commission at first instance. Unless the Commission has any questions those are my submissions.

PN588

SENIOR DEPUTY PRESIDENT ACTON: Do you have anything to say on the offer?

PN589

MS ZEITS: Sorry, yes. Thank you, your Honour. Insofar as it relates to the seven days certainly that would be a matter that we say given the indication of the respondent my clients would accept that. However we note that there were two issues with respect to arising out of that provision with which my clients had issue. The other was the 28 days rostering and we maintain our position that a 14 day rostering was appropriate and indeed that what the Commissioner did to the extent that he granted the 28 days rostering arrangement was that he failed in accordance with item 51(6)(b) to consider flexible work practices in accordance with that. If the Commission pleases.

PN590

SENIOR DEPUTY PRESIDENT ACTON: Thank you. Any questions? We will reserve our decision and now adjourn.

ADJOURNED INDEFINITELY [12.12pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #WPT3 DOCUMENT ENTITLED COMPARISON OF AMBULANCE OFFICER RATES PN444
EXHIBIT #LHMU2 WRITTEN SUBMISSIONS IN RESPECT OF THE APPEAL BY THE MAS AND THE RAV PN493
EXHIBIT #LHMU3 WRITTEN SUBMISSIONS IN RESPECT OF THE APPEAL BY WILSON PATIENT TRANSPORT AND OTHERS PN494
EXHIBIT #LHMU4 DOCUMENT ENTITLED FIXING A RATE FOR PTO AND AA ON THE BASIS OF A DECISION OF HOLMES C PN517