AG2004/7110, Transcript of Proceedings [2005] AIRCTrans 846 (6 April 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 11044-1

SENIOR DEPUTY PRESIDENT ACTON

AG2004/7110

APPLICATION BY COUNTRY FIRE AUTHORITY AND OTHERS
s.170LJ - Agreement with organisations of employees (Division 2)
(AG2004/7110)

MELBOURNE

10.12AM, TUESDAY, 29 MARCH 2005

Continued from 29/11/2004

PN1

THE SENIOR DEPUTY PRESIDENT: Is there any change in appearances? It doesn't look like it. No. I've called this matter back on because I wanted to raise with the parties two issues. One is a matter arising from a recent decision of a Full Bench of the Commission in a decision which is becoming known as Schefenacker and, in particular, what is said in that decision about right of entry provisions. And I wanted to raise that for comment by the parties in respect of the certified agreement, or the agreement for certification that's before me. The second issue I wish to raise with the parties has to do with the submissions that have been put to me, that the ASU does not have eligibility in respect of those covered by the agreement.

PN2

In essence, it was put because the CFA doesn't fall within the, in broad terms, authorities aspect of its rule. The issue that I wanted to raise with the parties, is that if that submission is wrong, that the CFA does fall within the authorities aspect of the rule, then the implications of that for the UFUs ability to be a party to the agreement, given the UFUs rules, have a specific exclusion in respect to the ASU rule which is relied on. I hope that second aspect is clear to the parties. Those are the two issues. Of course, if you've got anything else, feel free to raise them. Who'd like to go first? Mr O'Grady.

PN3

MR C O'GRADY: Your Honour. With respect to the second issue, can I say that the CFAs position is that we don't, if you like, have a position. I don't have instructions to put any submissions on that issue as a matter for the union parties to the agreement and, of course, the Commission. With respect to the first issue, can I hand up an outline of submissions that I've prepared on the Schefenacker decision, and I provided a copy of these to my friends.

EXHIBIT #G5 OUTLINE OF SUBMISSIONS ON SCHEFENACKER DECISION

PN4

MR O'GRADY: Thank you, your Honour. Your Honour, you'll see in paragraph one, it's the submission of the CFA that with respect to salary packaging contracting out and shop steward drives, if I could use that phrase, we say Schefenacker clearly endorses the provisions in the proposed agreement. As your Honour has identified, right of entry is more problematic, and I will deal with that in more detail subsequently. Your Honour will see - and I don't want to take up the Commission's time going through this - but I've set out clause 10, salary packaging and referred to those parts of Schefenacker that we say endorses that clause.

PN5

Clause 30 is set out in paragraph five. And once again we say that Schefenacker endorses that and I've set out the relevant parts of Schefenacker in paragraph eight. Paragraph nine I deal with clause 40.2 to 40.3, which is that part of clause 40 that deals with the needs to enter shop steward drives. And once again, we say that Schefenacker supports the capacity to insert clauses along those lines in the agreement and I've set out the relevant parts of Schefenacker in paragraph 10 of the outline. In paragraph 11, I deal with the right of entry provision, which is found in clause 40.1. And the ground in the primary submission put by the CFA with respect to that clause is that a clause will only fall foul of the Electrolux principal if it deals with, or regulates, a substantive, discreet and significant matter.

PN6

And those are words of some import and you'll see in paragraph 13, I've set out the passages of the High Court decision, where his Honour McEwen J, in effect, endorses what his Honour Merkle J said with respect to those matters in Electrolux of the first instance. If I can hand up, just for the convenience of the Commission - I don't want to take the Commission to it in any detail - a copy of both the McEwen J decision - sorry, a copy of both the High Court decision of Electrolux and also the decision of Merkle J of first instance and Apple Seals which is PR917092. The only one that I wish to take the Commission to at this juncture, is what appears in Merkle J decision, is at paragraphs 50 to 52. And your Honour will see at paragraph 50, his Honour says:

PN7

Section LI does not require that all of the terms of the proposed agreement must pertain to the requisite relationship. As explained above ...(reads)...does not meet requirements of section 170LI and section 170LT, it can not be certified and have effect as an award.

PN8

In paragraph 51 his Honour continues:

PN9

If one of the substantive matters provided the agreement is not within the required description and that matter is discreet and significant...(reads)... it would be inappropriate to add those words absent and clear legislative purpose in favour of that construction.

PN10

And in paragraph 52:

PN11

I doubt the legislator intended that the protected action was able to be taken to advance or support claims in respect of a substantive...(reads)... that a certified agreement can include a substantive, discreet and significant matter that does not pertain to the requisite relationship.

PN12

Now, those terms, substantive, discreet and significant were picked up by the Full Bench in the Apple Steels matter. And I don't need to take your Honour to it, but I set out the relevant paragraphs which is paragraphs 21 and 23 of Apple Steels, and I provided your Honour with a copy of that. And it also appears to have been picked up by the Full Bench in the Schefenacker decision itself, and I've referred to paragraph 17 and 19 of Schefenacker. Your Honour, in paragraphs 14 through to 17, I've set out some dictionary definitions of the terms substantive and significant. And you'll see that the Macquarie defines substantive as:

PN13

Having independent existence, it must be real or actual and, with respect to substantive law, there's a distinction between substantive and procedural matters.

PN14

Significant is defined as:

PN15

Important or of consequence.

PN16

And, your Honour, if I can hand up for your Honour's convenience, photocopies of the relevant pages from both the Macquarie and the Shorter Oxford from where I took these definitions. The Shorter Oxford, your Honour, similarly described substantive as:

PN17

That stands of or by itself, independent, self existence, self sufficient, having an independent existence of status, not dependant upon, subsidiary to or reparable to something else.

PN18

And of law, once again, there's a distinction between substantive and procedural. Significant is defined as

PN19

...meaning or import.

PN20

It's the submission of the CFA, your Honour, that clause 40.1 does not deal with, or regulate, substantive, discreet and significant matters. On it's face, the clause does not confer rights additional to those conferred by either division 11A of the Workplace Relations Act or the common law. The clause simply reiterates the rights of entry found within division 11A of the Act and states that representatives of the unions may attend CFAs premises, at times approved by the CFA for the purpose of conducting legitimate union business. It's admitted that no right of entry, other than that found within the Act, or is not contingent upon the grant of the occupier of the premises is provided for. And, your Honour, this, of course, does conflict with what the - perhaps I will rephrase that.

PN21

There is some tension, of course, your Honour, between the submission I've just put and what was decided in Schefenacker's case, because the clause that was considered and held not to pertain in Schefenacker also, on it's face, would appear to have not conferred any right as such. And this appears at page - sorry, paragraph 93 of the Schefenacker decision. Clause 46 of the proposed Schefenacker agreement is set out. It says:

PN22

An official or officer of the union shall have the right to enter the employer's establishment with the permission of the employer for the purposes of conducting legitimate union business.

PN23

However, your Honour, it does not appear that the Full Bench in Schefenacker considered the question of whether or not a clause expressed in those terms conferred a substantive, discreet and significant right. And in my submissions, to the extent that Schefenacker is said to depart from, or is seemed as departing from the approach adopted by his Honour Merkle J at first instance in Electrolux and endorsed by the High Court in Electrolux. Your Honour, my submission shouldn't be followed. But in my submission, the point might not have been taken before the Full Bench. There is nothing in the reasoning of the Full Bench in Schefenacker that, in my submission, undermines or conflicts with the submission that I've just put to your Honour.

PN24

Your Honour, in the alternative, it is put that at least with respect to the reference to the rights of entry in division 11A, there is no conflict between a right which is expressed in terms along the lines of section 285B of the Act and the reasoning in Schefenacker. Indeed, as I read the Full Bench decision in Schefenacker, their Honours and Commission endorse the High Court decision in Archer and endorsed the principle that, to the extent to which a right of entry has been conferred for the purposes of enabling enforcement of an award or an agreement, then it will pertain to the relevant relationship. And so, in my submission, to the extent to which clause 40.1 is seen as a reference to section 285B, there's no problem in anything, even if there was a conferral of a substantive, discreet and significant right.

PN25

With respect to 285C, which is the only other right of entry found within division 11A, it's the submission of the CFA that this right should be seen as incidental to the relevant relationship. This issue was touched on in the Moranbah North Coal Management Pty Ltd case. And if I could hand a copy of that up to your Honour.

EXHIBIT #G6 EXTRACT FROM SHORTER OXFORD
EXHIBIT #G7 EXTRACT FROM MACQUARIE

PN26

MR O'GRADY: Thank you, your Honour. Your Honour, as your Honour knows the Moranbah North Coal Management case concerned the scope of section 285G of the Act. And, in particular, whether the phrase industrial disputes, as it appears in section 285G, was confined to industrial disputes as defined in section four. And in determining that the phrase was not so confined, their Honours had regard to the provisions in part 11A and noted that many of them did not pertain to the employment relationship. And that, in effect, 285G would be denuded of significant operation if it was confined in the way in which it was argued before the Full Bench.

PN27

However, the Full Bench did note, and this is at paragraph 24 of the decision, that right of entry provisions, similar to those found within 285B and, in my submissions, similar to those, in using similar language to that, found within the clause hereunder consideration, and the clause under consideration in Schefenacker's case, have for many years been placed within awards of this commission. And at the foot of paragraph 24, the Full Bench saying:

PN28

In passing, we note the possibility of the power to include a right of entry provision in awards, a power exercised by the Commission for many years before the Workplace Relations Act came into effect, might well have been grounded in the power of the Commonwealth Parliament to legislate in relation to incidental matters.

PN29

And they refer to section 51(39). A clause which, entitled a union to come on to employer's premises during breaks, or authorised breaks, for the purpose of conducting legitimate union business, is found in awards, the earliest I've been able to find, your Honour, is back in 1935 in the Timber Merchants Saw Miller's case, which is reported in Volume 35 of the CARs at page 126. And the clause is, perhaps allowing for some evolution of the language, is, in my submission, very similar to the matters that was considered in Schefenacker. The clause there under consideration was, in these terms:

PN30

Duly accredited representatives of the union shall have the right to enter employer's working establishments during the midday meal time for the purpose of interviewing employees on legitimate union business on the following conditions.

PN31

And there were a number of pre-requisites there set out. Given that such clauses have been placed in awards and, to my knowledge, have not held to be invalid because they exceed either 51(35) or 51(39), in my submission, the Commission should proceed on the basis that a clause referable to section 285B should be seen, at the very least, incidental to the employment relationship. Your Honour, in paragraph 20 of the submissions, I simply refer to what was at issue in the Moranbah North Coal case and make the point that it wasn't strictly concerned with the issue that's currently before your Honour and that the passages that are referred to therein, in my submission, should be seen in the context of the case that was before the Commission in that time. If your Honour pleases, those are the submissions I wish to put on the right of entry.

PN32

THE SENIOR DEPUTY PRESIDENT: Okay. Mr Langmead.

PN33

MR LANGMEAD: Your Honour, if your Honour was to come to the conclusion that the clause in the agreement, in the proposed agreement, is sufficiently analogist to the one which is under consideration in Schefenacker, we do submit that the Commission is faced with a choice between following a union leaver, or Schefenacker. The both very distinguished Full Benches of the Commission, both, despite the observations in Schefenacker about Moranbah, both did consider the arguments on this point and the Full Bench in the union leaver must have been aware of Moranbah. It was significantly canvassed by Senior Deputy President Cartwright in the first instance and the passages which the Full Bench has considered, he indeed referred to Moranbah.

PN34

So, the observation that the Bench in Schefenacker, that they didn't know why Moranbah wasn't simply referred to by the union leaver full bench, doesn't really assist. They must have had it before them. Your Honour, it's our submission that, with respect, the Schefenacker Full Bench doesn't explain adequately why union leaver should be departed from. Its line of reasoning proceeds on the basis that it says well, Archer was correct, Archer said you can have these sorts of clauses, being the right of entry for ensuring that the observers to the award and other matters related to employment. Then they go on and say well, there are, if it's an unconstricted right, there might be extraneous matters which might be taken into account.

PN35

The Full Bench in union leaver canvassed the observations of Senior Deputy President Cartwright which, to the effect that they might used for canvassing votes in union elections or to organise the union picnic day. Now, union picnic day on itself may well be a matter related to the employment, given those awards which haven't, confer it as a right to an additional day's leave. But leaving that aside, the union leaver full bench did consider this point and said no, that should be, you shouldn't expect that extraneous types of considerations will be taken into account. And your Honour will be familiar with the quotations from the union leaver which appear at 117 of Schefenacker. In our submission, that the reason for departing of the union leaver hasn't, as I say with respect, been adequately reasoned and on that basis, your Honour should prefer union leaver.

PN36

Your Honour raised the question of the eligibility rule. This was not a matter which was contention when the matter was argued before you, in the way in which your Honour puts it. It was put the matter of the affect of the exclusion having the potential of excluding the UFU entirely, so therefore the agreement couldn't be certified because the UFU didn't have eligibility. It was not a matter which was argued nor put by the parties.

PN37

THE SENIOR DEPUTY PRESIDENT: Although, it was implicitly argued, I thought. And perhaps it's right that I raise it, even moreso. In the submission of the ASU, as I understood it, that they could cover - setting aside the authority issue - the designations in the agreement by virtue of the, sort of overseer/supervisory element of that rule and/or as assistance thereto.

PN38

MR LANGMEAD: Your Honour, this point, the eligibility question ended up being argued on the basis of the statutory authority question, as to whether or not the CFA was a statutory authority at the requisite nature. That was because the UFU said that if it was a statutory authority of the requisite nature, then the ASU had at least one member who fell into the paragraph, I think it's E11, rule 6. Certainly that's how it's expressed in the UFU's eligibility rules.

PN39

THE SENIOR DEPUTY PRESIDENT: Yes. Can you just hang on a second. I was just trying to turn up the ASU outline of submissions. Unfortunately I don't have it on me, but I can probably tell you the paragraph. Do you have a copy of it, Mr O'Grady?

PN40

MR O'GRADY: I do, your Honour. Your Honour is welcomed to it.

PN41

THE SENIOR DEPUTY PRESIDENT: Just hand me the outline of submissions.

PN42

MR LANGMEAD: Your Honour, the submissions were filed in advance of the proceedings being called on for hearing. The concession that the UFU made in that regard, which made the point not necessary to be argued, was made at the commencement of the proceedings after consideration of various matters.

PN43

THE SENIOR DEPUTY PRESIDENT: I understand that, but I didn't understand the ASU to resile from any part of their submission or to not pursue any part of their submission.

PN44

MR LANGMEAD: What they didn't do, your Honour, was to say that the UFU did not have eligibility.

PN45

THE SENIOR DEPUTY PRESIDENT: What they say, though, is - this is paragraph 58 -

PN46

A review of the decision descriptions for district mechanical officer reveals that the primary purpose of the position is the co-ordination, direction and training of staff involved in carrying maintenance functions related to towers and antenna masks or to work as assistants.

PN47

And then at paragraph 63:

PN48

The ASU relies on the evidence often district mechanical overseer and tower overseer which clearly demonstrates that direct supervision of employees is a central part of the duties of the position.

PN49

64:

PN50

It is also clear on the basis of position description tenant that duties of the subordinate grades involve providing assistants to those employees of a supervisory level.

PN51

MR LANGMEAD: Your Honour, once we had made the decision we did, that whole area of contention was removed from the contest. Now, if your Honour wants to re-open that question in a context where it has not been argued, the UFU will need to re-open it's case, the witnesses will have to be called back before the Commission. But, your Honour, as I understand it, the UFU maintains that it has at least one member who is eligible for it, who does not fall within the eligibility rule of the ASU.

PN52

THE SENIOR DEPUTY PRESIDENT: Which classification's that?

PN53

MR LANGMEAD: Well, at least district mechanical officer. At the bottom.

PN54

THE SENIOR DEPUTY PRESIDENT: At the lowest grade, is it?

PN55

MR LANGMEAD: Yes, your Honour. And we just say that without making any concessions about anything in between.

PN56

THE SENIOR DEPUTY PRESIDENT: I'm just trying to turn up the agreement now.

PN57

MR LANGMEAD: I think it's at page 19, your Honour.

PN58

THE SENIOR DEPUTY PRESIDENT: Is it? Thank you. So, we've got district mechanical officer, grades and tower overseer competency requirements. It might actually be easier if I look at the wages, which are on page 17 and earlier. On page 16, you say you can - at least one member, who is a district mechanical officer grade one, is that right?

PN59

MR LANGMEAD: Yes. We do, your Honour.

PN60

THE SENIOR DEPUTY PRESIDENT: Right. And they're not excluded by the ASU rule part 3 of rule 5B, you say? Any of those classifications or, I think it's assistance thereto?

PN61

MR LANGMEAD: That's right, your Honour. And I understand that the ASU agrees with that proposition. As I say, it hasn't been something that any of the parties has argued. And if it were to be contended by anyone and, with respect, including the Commission, we would wish to be able to call evidence, conduct cross-examination of the witnesses going to that point and meet any arguments that were put in favour of that proposition. But, we say it simply doesn't arise because the matter isn't in contention and it doesn't arise. Your Honour, we tell the Commission, I've had some preliminary discussions with my friend,
Mr Hendersen, and it's the UFU's position that if the Commission were to conclude that the right of entry clause was not a matter pertaining in accordance with the decision in Schefenacker.

PN62

The effect of that, of course, would be that the Commission would not have a valid application before it and the agreement would not be certified. If the Commission were to come to that conclusion, it's the UFUs position to enable our discussions to progress, and obviously the parties would seek to bring forward - I can't speak for the CFA, but I'm sure certainly the union parties were to address their mutual eligibility concerns and we hope that the parties could bring another agreement which didn't offend the Act before the Commission. It would not, in our submission, in that context be useful for the Commission to make an overture, as it were, decision about eligibility on an invalid application. And we would ask the Commission not to do so.

PN63

THE SENIOR DEPUTY PRESIDENT: Yes. Does that mean you're going to leave it for another day? For example, if it was found there was an invalid application in light of Schefenacker, the agreement, presumably, is done again without a right of entry clause that offends Schefenacker. Does that mean the argument on eligibly gets run again?

PN64

MR LANGMEAD: Well, that is what we would seek to avoid. If the matter were to come back for another application for certification, it would obviously, as a matter of convenience, probably suit the parties and the Commission if it were to come back before the Commission as presently constituted. And given that the nature of the previous proceedings, there's probably no reason why the Commission wouldn't be able to take into account those previously put submissions. The Commission will recall that the evidence was largely uncontested.

PN65

THE SENIOR DEPUTY PRESIDENT: And that means?

PN66

MR LANGMEAD: It doesn't take long to re-put arguments anyway, your Honour.

PN67

THE SENIOR DEPUTY PRESIDENT: I understand that. You submit that I shouldn't put any obiter in about eligibility, but you reserve the right to argue it again. Which means that, potentially, at the end of the day, there's another invalid application.

PN68

MR LANGMEAD: Well, we'd - as I say, we'd want to pursue some discussions which may cause that to not arise, your Honour. You Honour, it would be unhelpful if your Honour made a decision during the progress of those discussions, to decide in favour of either union party.

PN69

THE SENIOR DEPUTY PRESIDENT: How long are your discussions going to take place for?

PN70

MR LANGMEAD: I don't know, your Honour. I won't be involved.

PN71

THE SENIOR DEPUTY PRESIDENT: I don't know whether that will make it quicker or shorter.

PN72

MR LANGMEAD: Not at all, your Honour.

PN73

THE SENIOR DEPUTY PRESIDENT: Yes. Okay. I understand the submission. Mr Hendersen.

PN74

MR HENDERSEN: Yes. Thank you, your Honour. Firstly, in relation to what may now be the simpler part of the proceedings this morning, we agree with
Mr O'Grady's submissions in relation to the decision of the Full Bench in the Schefenacker case. And we also agree with the alternatives put to you by
Mr Langmead and have nothing else to say about that particular part. In relation to the cumberage issue, what we say, your Honour, is that in the statutory declaration which the ASU filed in support of the application, Mr Attwood deposed that he was of the view that each of the union parties had eligibility and we don't resile from that statutory declaration.

PN75

Now, when the matter came on, the UFU raised the issue that the ASU did not have eligibility because firstly, the CFA wasn't the statutory authority within the meaning of what was the Municipal Officers Association rule and, secondly, that even if it was, the occupations covered by the agreement weren't occupations which the MOA could enrol.

PN76

MR LANGMEAD: None, of that. That was the problem.

PN77

MR HENDERSEN: None of them, that's right. The ASU, in it's case, contended that that wasn't so and made certain assertions in support of that and then ultimately, as your Honour is aware, the UFU elected to not pursue that particular aspect of the argument, choosing instead to simply rely on the statutory authorities argument. From the ASU's point of view, in the event that the Commission found in favour of the ASU and against the UFU on the argument that the CFA is a statutory authority from the meaning of the rule, from our point of view that simply brings us back to where we were when we came in. That is, the ASU has never submitted, in terms of supporting the applications, or the agreement certification by the Commission that the UFU did not have eligibility. And we don't quibble with any of the submissions made by Mr Langmead in relation to district mechanical officer level one.

PN78

We don't know the answer to that question because that issue hadn't been argued. But we were never intending to argue it. We were happy to accept on the assertion of the UFU initially, that they would have the eligibility to cover at least one employee who was covered by the agreement. And we were happy and remained happy to leave it at that. In the event that - and we're not keen to have an argument about that at this point, your Honour. If the Commission's satisfied in relation to the submissions, satisfied by the submissions in relation to the provisions of the agreement and found that the CFA was a statutory authority, then we would simply submit that the Commission should proceed to certify the agreement based on the statutory declarations which are presently before it.

PN79

THE SENIOR DEPUTY PRESIDENT: Do you have paragraph 64 of your outline?

PN80

MR HENDERSEN: Yes, your Honour.

PN81

THE SENIOR DEPUTY PRESIDENT: It was marked H1 in the case.

PN82

MR HENDERSEN: Yes. And that was our submission, but clearly there was a tension between that submission and the proposition put by the UFU. Ultimately, the Commission may well have found in favour of the UFUs proposition that there was at least one employee. But as I said earlier, we don't see that there's any need to go into that issue if the parties are relying on their statutory declarations.

PN83

THE SENIOR DEPUTY PRESIDENT: The difficulty I have, Mr Hendersen, is unless you concede that paragraph 64 is too broadly put, it seems to me that paragraph 64 is clearly saying we cover DMO's and tower overseers at the higher levels, by virtue of our rule, and all the ones underneath them by virtue of them being assistants thereto. And therefore, those designations come within part 3 of rule 5B, and given that's an exclusion in the UFU rule, they can't cover them. Otherwise, I'm left in a situation where the certification of any agreement is just open to collateral challenge at a later time.

PN84

MR HENDERSEN: If you bear with me. Yes, your Honour. The ASU could simply - perhaps I could put it this way. The ASU doesn't press it's submissions in relation to the coverage of those positions, in the same basis that the UFU hasn't pressed it's submissions. So the matter's effectively, it would then be effectively withdrawn from consideration.

PN85

THE SENIOR DEPUTY PRESIDENT: So you withdraw paragraph 64?

PN86

MR HENDERSEN: Well, we don't press it, your Honour. It was only an outline of our submissions. And what the Commission does have before it is a statutory declaration by Mr Attwood.

PN87

THE SENIOR DEPUTY PRESIDENT: Do you challenge Mr Langmead's submission that the UFU has eligibility for district mechanical officer grade one?

PN88

MR HENDERSEN: Well, in the absence of any evidence, we don't argue with that submission. That's his assertion, we don't quibble with it.

PN89

THE SENIOR DEPUTY PRESIDENT: All the more reason for you all to have some discussions, I suggest.

PN90

MR HENDERSEN: Well, I think that is a good idea. We don't disagree with
Mr Langmead's submission to the Commission that there will be discussions, but we do, however, disagree with his argument that the Commission shouldn't determine this matter as far as it can, so that the parties have a reasonable basis on which to decide the next step, in the even that the agreement can't be certified. In our submission, we don't see that the issue of whether or not the CFAs a statutory authority or not. It would be an arguable part of the decision. But it seems to us the decision to not certify the agreement could be made on that basis alone, or on the basis of the Schefenacker decision alone or on the basis of both of those issues and subject to appeal on both points in that respect.

PN91

While we understand it would be open to the Commission to find that the agreement can't be certified because of the right of entry provision, we would urge the Commission to not stop there in it's consideration of the agreement. In our submission, the Commission should proceed to determine all of the reasons in relation to whether or not the agreement could be certified. Because to do otherwise would be to leave the employees who hope to be covered by this agreement, ultimately dangling at the prospect of yet another argument, perhaps put slightly differently. We don't know. But it would seem to us, the matter's been argued, the statutory authority matter's been fully argued and should be determined. If the Commission pleases.

PN92

MR LANGMEAD: Your Honour, could I just make a brief response to one aspect of that. And it's something I should have mentioned earlier. I described it as being an obiter comment if it were to be made, on the basis of it being an invalid application that the Commission was dealing with. So the Commission would, if it decided on the Schefenacker point, it would be saying, in effect, there was nothing before it to be validly decided. If that were to be correct, then one of our concerns would be any decision adverse to the UFU and ASU may well have a reciprocal concern if it was a decision adverse to it on that point may well not be appellable for, at least, the reason that it wouldn't be in the public interest in determining that question on appeal when the agreement was gone.

PN93

And there could also be questions as to whether or not, in fact, it was appellable at all in those circumstances where a party may not be able to be said to be aggrieved when there's all those sorts of questions anyway, your Honour. But in those circumstances, it's all very easy to say we didn't have rights on appeal, but you may well not, which is also an unsatisfactory state of affairs.

PN94

THE SENIOR DEPUTY PRESIDENT: Has your client given any consideration to the issue of whether they wish to persist with argument, at all? Of late?

PN95

MR LANGMEAD: On my instruction, we'd persist with the argument, your Honour. That might not be the case for the future, but I have no instructions about what the future might be. I just say that when there's discussions to be held, who knows what might happen.

PN96

THE SENIOR DEPUTY PRESIDENT: Yes. Okay. Mr O'Grady, anything you want to put in the mix?

PN97

MR O'GRADY: I don't have instructions to put anything extra.

PN98

THE SENIOR DEPUTY PRESIDENT: Okay. Very well. Well, I'll adjourn the matter to give consideration to the submissions that have been put to me.

<ADJOURNED INDEFINITELY [10.59AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #G5 OUTLINE OF SUBMISSIONS ON SCHEFENACKER DECISION PN3
EXHIBIT #G6 EXTRACT FROM SHORTER OXFORD PN25
EXHIBIT #G7 EXTRACT FROM MACQUARIE PN25