C2006/3012, Transcript of Proceedings [2006] AIRCTrans 1228 (17 November 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 16026-1

VICE PRESIDENT WATSON:
SENIOR DEPUTY PRESIDENT MARSH
COMMISSIONER TOLLEY

C2006/3012

ENVOTEC PTY LTD T/AS AUSTRALIAN ENVELOPES
AND
MR MICHAEL GOLDIE
s.120 - Appeal to Full Bench
(C2006/3012)

MELBOURNE

10.00AM, TUESDAY, 31 OCTOBER 2006

PN1

MR F PARRY: I seek leave to appear on behalf of the appellant with my learned friend MR N HARRINGTON.

PN2

MR P WHEELAHAN: I seek leave to appear on behalf of the respondent.

PN3

MR S SMITH: I seek leave to intervene on behalf of the Australian Industry Group.

PN4

VICE PRESIDENT WATSON: I understand your application is to be opposed. Is that right, Mr Wheelahan?

PN5

MR WHEELAHAN: Yes, your Honour.

PN6

VICE PRESIDENT WATSON: So perhaps you should outline the grounds, Mr Smith.

PN7

MR SMITH: Yes, thank you, your Honour. We seek leave to intervene in these proceedings. The grounds upon which we do so is that the Australian Industry Group is a party to the Graphic Arts Award, which Deputy President Hamilton held in the above decision to be applicable to the senior award free employee of the company, namely a warehouse manager. The Australian Industry Group has a large number of member companies in the graphic arts industry and there are a large number of other award free employees in the graphic arts industry, and jobs which are relevantly similar to Mr Goldie's job.

PN8

The employers of these employees will be adversely affected if the decision is allowed to stand. Also our organisation was involved in the extremely lengthy Industrial Commission proceedings relating to the development of the classification structure in this award. Those proceedings were continued for some 16 years, and Senior Deputy President Marsh was involved from the start. I was personally involved in those negotiations and proceedings for the last 13 years. And a lot of the issues surrounding the classification structure have some bearing back to understandings and negotiations and words that are now in the award that are the subject of these proceedings, so we intervene in that context.

PN9

And also we believe our intervention will assist the Full Bench in understanding the background to the words that are in contention in these proceedings. If the Commission pleases.

PN10

VICE PRESIDENT WATSON: Do you wish to be heard on the question, Mr Parry?

PN11

MR PARRY: If the Full Bench pleases, our position is to support the intervention, particularly with regard to the submissions that might be made regarding the classification structure. If the Commission pleases.

PN12

VICE PRESIDENT WATSON: Mr Wheelahan?

PN13

MR WHEELAHAN: Your Honour, my learned friend has stated to the Full Bench that he might assist by in effect giving evidence about the negotiations that took place and what sits behind the award and what therefore it means. Of course that's not the test at all, and this Full Bench will not be having any regard to the negotiations and evidence from the Bench. Secondly, it stated just in the leave to intervene that there are a large number of other award free employees in the Graphic Arts Award. There's no evidence about that before the Full Bench. That again is just a submission.

PN14

This case firstly was determined by application of a certified agreement, that was the finding of Deputy President Hamilton, not the award. So, so far as we're dealing with a certified agreement, the Australian Industry Group has no interest in intervening in that matter. The second issue is, Deputy President Hamilton referred to the award, but as my learned friend Mr Parry pointed out, he's just given brief reasons. He hasn't gone into any depth of explaining why he makes that finding. So again, if the Full Bench is going to venture behind that, it's not appropriate at this stage for the Australian Industry Group to intervene.

PN15

Thirdly, and importantly, the submissions that are intended to be filed by the Australian Industry Group, then simply make assertions without any evidence, such as at paragraph 4, Envotec had not implemented the new classification structure by 26 April 2006. Well, there's no evidence about that, and the award in fact provides that it can be on or before 26 April, and the submissions of the Australian Industry Group wrongly state that by 26 April 2006 that was the deadline, and by that deadline nothing was operative before that date. Well, that's not right because that's not what the award says.

PN16

Now, again, if the Australian Industry Group is here to give evidence about what Envotec has done, that's not an appropriate submission to make to the Full Bench in reliance upon an intervention application. If the Commission pleases.

PN17

VICE PRESIDENT WATSON: Mr Smith?

PN18

MR SMITH: Yes, your Honour. We do believe that the issues that we wish to raise are central to this matter, and the findings of Deputy President Hamilton in terms of the way that this classification structure is to be applied and has been applied by his Honour in relation to this matter will have major industry ramifications, because he has totally, in our respectful submission, misunderstood the outcome of Senior Deputy President Marsh's decision that is now reflected in the award and was upheld by a Full Bench, and wish to make submissions on that point. It was three quarters of the decision, the wording in the decision about the classification structure. If the Commission pleases.

PN19

VICE PRESIDENT WATSON: Leave to intervene is granted to the AIG. Mr Smith, questions as to submissions can be dealt with at a later stage. And leave to appeal is granted to counsel. Mr Parry?

PN20

MR PARRY: If the Commission pleases, as foreshadowed in our outline of submissions, arising from the issues that have been brought up by AIG, we seek leave to amend the notice of appeal. The Full Bench might have noted that at the end of our submissions and might have noted that there was an extra ground contained in paragraph 52 at the very end of our submissions. If I could seek leave to amend the notice of appeal, I have a copy of an amended notice of appeal, I've provided a copy to my learned friend, if I could hand up to the Full Bench a copy of the amended notice of appeal.

PN21

VICE PRESIDENT WATSON: We might mark the outline of submissions for the appellant.

EXHIBIT #P1 OUTLINE OF APPELLANT'S SUBMISSIONS
EXHIBIT #P2 AMENDED NOTICE OF APPEAL

PN22

MR PARRY: So I make the application to amend the notice of appeal which contains the extra ground which hopefully is identical to that contained in the outline of submission.

PN23

VICE PRESIDENT WATSON: I apprehend that may be opposed as well.

PN24

MR WHEELAHAN: You will note that the grounds of appeal again refer to evidence. There was no evidence that the new classification structure on the award had implemented the operations of the appellant. It's very important that the case was run on the basis that there was no contest about that. Envotec Pty Ltd, the appellant, never before Deputy President Hamilton said, well, we contest that. And now the appeal grounds are purporting to rely on evidence and put the onus upon the respondent to say, well, there's no evidence that supports that.

PN25

In the list of authorities, and I'll hand up the folder of cases on behalf of the respondent for convenience, and there's one case of the High Court of Australia, Coulten and others v Holcombe and Others.

PN26

VICE PRESIDENT WATSON: That's tab 13?

PN27

MR WHEELAHAN: Yes, your Honour, reported [1986] HCA 33; (1986) 162 CLR 1. And these are just setting out trite principles, and in particular from page 7, noting that although these matters are by way of re-hearing, and onto page 8, that the party has to be bound by the conduct of its own case. Now, what this amendment to the appeal of course has said, well, we don't want to be bound by what we didn't contest below, and now we want to make it an issue that there's no evidence that the new classification structure had been implemented at Envotec Pty Ltd. And at page 8 are the relevant passages, and you will see the High Court quoting from O'Brien v Komesaroff:

PN28

In some cases when a question of law is raised for the first time ...(reads)... conduct of the parties at trial.

PN29

Then the High Court concurs with that view and says:

PN30

In our opinion no distinction is to be drawn in the application of these principles between an intermediatory court of appeal and ultimate court of appeal.

PN31

And then it goes on to quote University of Wollongong v Metwally:

PN32

Again it's elementary that a party is bound by the conduct of its case except in the most exceptional circumstances ...(reads)... had an opportunity to do so.

PN33

This is not only a new argument, this is a new contest about the facts. There has to be evidence, because by its own amendment, proposed amendment, it talks about there being no evidence. Well, of course if that's the case and the amendment to the appeal is allowed, the consequences of that is it should then be remitted to Deputy President Hamilton so that we can have a contest about facts that are in controversy. And this follows on, and the intervenor now has leave to intervene, and the submission of the intervenor again, it's just assertion. Envotec have not implemented the new classification structure.

PN34

Well, that's interesting coming from an independent body not party to proceedings below, because that was not put by the respondent company. So on my submission Envotec Pty Ltd should be bound by the conduct of its case below, and the proposed amendment should not be allowed. If the Commission pleases.

PN35

VICE PRESIDENT WATSON: Mr Parry?

PN36

MR PARRY: If the Commission pleases, the opposition to the filing of amended document really goes to the merit of the ground, but that's the opposition that's been advanced. Ultimately it will be our position that the Commission below, the Deputy President was in error in following the course he followed by assuming that the level 8 structure was in operation and applied. And he was in error because when the issue of jurisdiction came up the applicant, being the respondent in this case, followed the course of telling the Commission below that the level 8 structure was in operation.

PN37

Indeed this is the exchange that appears at paragraph of the Appeal Book, at Appeal Book page 107. Now, to put this in context, the appellant here today, Envotec, had filed submissions which appear at the back of the Appeal Book, which in effect say we don't know where you say this employee comes into the classification structure. So therefore in response to that this is, the applicant below, Mr Goldie, saying where it came from. And if we start at paragraph 1295, it's Mr Wheelahan then saying that we go to the classifications of the award, and he hands up a document, and then at 1297, as is manifest, he's handed up what relates to a level 8 employee, which the Deputy President says "Yes, 8 is the top rung, Mr Wheelahan, that's right." And then to the credit of the Deputy President he said:

PN38

Well, in which version of the award? Is it the latest? I mean, this award has been going through the process for some time now. I think I recall a Full Bench only a few months ago about it.

PN39

So here the Deputy President is really asking the advocate, well, I've got concerns about this. And Mr Wheelahan says:

PN40

Well, on my instructions and my checking of the award it is. If it's not, then of course that is a jurisdictional issue, and both my friend's submissions and mine will have to be reviewed.

PN41

Well, he was right with regard to that. So he's been the one that's asserted to the Deputy President that that was the position, and ultimately we say he was wrong. And the Deputy President went on and said "Well, I take it you've -" and then Mr Wheelahan said "Yes," and he returns to level 8.

PN42

So the error below was one that was created by my learned friend and his submissions. And we're here today saying that should be corrected.

PN43

VICE PRESIDENT WATSON: It wasn't refuted by the employer below?

PN44

MR PARRY: No, it wasn't. The case below went ahead on the basis that it was a level 8. Now, as to the arguments about new points on appeal, can we say firstly, there is evidence that - and I think if one goes through the award and the new structure, one sees a process whereby employees are to be translated into the new structure. There's a process whereby employees are to be moved from the level 5 structure to the level 8 structure. And there's further evidence that Mr Goldie didn't even know about this argument about award coverage until post termination. So it's not a great inference to take from that, that Mr Goldie never went through any translational process.

PN45

So leave aside other employees, Mr Goldie wasn't in any level 8 structure from the evidence that is in the Appeal Book. Thirdly, as to this being a new argument, well, Coulton v Holcombe is a case which turns on whether the new argument is such that there is a requirement for more evidence and other matters. We say what is sought to be argued here is that the level 5 structure is applicable, and all the evidence to make that assessment is in the Appeal Book now. So all the evidence that deals with employment, the work and the structures in the company in which Mr Goldie worked.

PN46

Now, in those circumstances, and we've got a few authorities, where there's a case such as this there's a number of authorities which deal with High Courts and others which say in those circumstances such arguments should be dealt with, and hopefully in the Appeal Book there should be - I'm sorry, Appeal Book, an authority. I have a list of authorities in a rather large volume that I would seek to hand up to the Commission. And just to make sure that we make the submission about the proper law to be applied, we have included in the outline Hollis v Vabu at tab 13, and there I don't need to trouble the Commission with the details of the case, but there were concessions made at first instance, and the matter went to the High Court. And in paragraph 31 the High Court majority dealt with the concession and they say there the concession was as to a conclusion of law, and then they go on:

PN47

Moreover it has not been demonstrated that any substantial prejudice would result in allowing Mr Hollis ...(reads)... obstacles in the path of any challenge.

PN48

Et cetera. Now, that's unsurprising law. It's been followed fairly recently by the Full Federal Court in the next case in the tab, and it is at paragraph - if the Commission would excuse me briefly. Yes, I'm sorry, paragraph 78. And I think my learned friend Mr Wheelahan and I were in that case, which probably shows his familiarity with Coulton v Holcombe. At paragraph 78 the issues were about matters settled at trial, and there again a proposition about prejudice, no more evidence needs to have been given, the issue is one of law turning on a proper interpretation.

PN49

And finally on this issue there is a recent Full Bench decision, Goumas, which appears in the next tab, and there the Full Bench dealt with this at tab 43 and 44, and there was reference there in paragraph 44 to merit arguments. We of course make the point here that we don't submit that this is a merit argument. This is a jurisdictional argument. And the Full Bench there goes on and deals with matters raised being jurisdictional. And I'm not going to read out paragraphs 44 and 45, nor 46, but ultimately the proposition there supported was that this Commission, when dealing with a jurisdictional matter, would err in favour of allowing the matter to be ventilated and argued, particularly where it can be dealt with on the material before the Full Bench.

PN50

So in our submission the ground of appeal that we advance is one that can be dealt with by this Full Bench. It's an important matter, and we say that it is not precluded by any matter of legal principle. If the Commission pleases.

PN51

VICE PRESIDENT WATSON: Do you wish to be heard on this question, Mr Smith?

PN52

MR SMITH: We support the submissions of Mr Parry, if the Commission pleases.

PN53

VICE PRESIDENT WATSON: Thank you. Mr Wheelahan?

PN54

MR WHEELAHAN: Your Honour, it is a new argument, and my learned friend has said, well, we don't require any more evidence, it's all in the Appeal Book. But let's go back. What he has pointed to is, he invites the Full Bench to draw inferences from the respondent Mr Goldie's failure to give evidence about the translation into the new structure. Let me remind the Full Bench that again it's been put by the intervenor as a deadline. It was clause 5.1(1)(b)(x) timing of the translation into the new classification structure. Translation into the new structure will occur within a period of six months.

PN55

Again this requires evidence. And if the appeal, notice of appeal is to be allowed on the basis put by my learned friend, then the second point should be that if the respondent does not win this appeal on its argument to do with the certified agreement and we then have to go to this question of award classifications, it properly should be remitted so that the respondent can put evidence on, and certainly so my instructor can seek instructions about the very point that my learned friend invites the Full Bench to draw inferences.

PN56

The Full Bench should not be drawing inferences from what the respondent may have failed subjectively to say about being translated into a new structure, given that after that I put, and I'm quoted on transcript of putting, well, on my instruction of checking the award, as you rightly pointed out, my learned friend never disputed that. We were a respondent to this matter. This information is primarily in the hands of Envotec. If Envotec said, well, sorry, Deputy President Hamilton, you're wrong, we haven't translated and we haven't translated the respondent, it should have said so, and it didn't. And that's what brings it within the principles of Coulton v Holcombe, unlike the case of the MFESB, which you've been taken to, which was questions of law only, and there was no prejudice. That's not the case here. There are facts in controversy, and they have to be, by my learned friend's concession that he invites you to draw inferences.

PN57

Well, in my submission, inferences aren't enough, and that entitles the respondent to call evidence.

PN58

VICE PRESIDENT WATSON: If your instructions were wrong at first instance, and both parties were wrong in not pointing to the appropriate classification structure in the award at the time, and we proceed on the same basis, then is that a matter that affects our jurisdiction? Might we be acting outside our jurisdiction in considering the matter on an erroneous premise?

PN59

MR WHEELAHAN: Well, my learned friend will take you to Goumas and the decision of the Full Bench, 1 August 2005, and that's what that Full Bench says, that it rejects the submissions put by Chris O'Grady of counsel relying on University of Wollongong v Metwally, which is also in Coulton v Holcombe. So that's what would be put with respect to that. My primary submission is that in Coulton v Holcombe the argument that could have been taken in itself was not unlike a jurisdictional one because it was the incorrect application of a statute that was a winning point. But this is different, I concede that, but I make my submission but note the decision of the Full Bench in Goumas.

PN60

But therefore if the notice of appeal is allowed though, I utterly reject the submission that there's no prejudice to the respondents and that there are no facts at issue, because that can't be the case because my learned friend, in my submission, unfairly to the respondent is going to invite the Full Bench to draw inferences against him because, of course, this matter was not argued and was not at issue before Deputy President Hamilton.

PN61

And where that leaves the running of the case is, we run the case as we have and as is set out in my submissions on behalf of the respondent. If we lose on the construction point, or if we win on the point of the certified agreement, that's the end of the matter. But if necessary if we end up having to run an argument about the application of the award, well, not only for this reason but for the other reasons that I've referred to, it should be remitted to Deputy President Hamilton to articulate fully his reasons. And then it enables an opportunity for the respondent to put on any evidence and, indeed, for Envotec Pty Ltd to put evidence that we contest about what in fact it did in that six months to translate employees to the new structure.

PN62

VICE PRESIDENT WATSON: Would you not have options in relation to these proceedings as well in relation to potentially disputed jurisdictional facts?

PN63

MR WHEELAHAN: Well, I don't today. I don't have - my learned friend has invited the drawing of inferences which is not in the written submissions, so I'm not in the position today to speak to the respondent in person and get instructions about that. And again, as the notice of appeal says itself, your Honour, there is no evidence. It keeps saying there's no evidence, no evidence, no evidence. Well, that's the very reason. There's still no evidence, and my learned friend hasn't coupled his application to amend with an application to introduce any further evidence. He says of course that there's sufficient evidence in the material, but that's not apparent on its face.

PN64

VICE PRESIDENT WATSON: Yes, thank you. We'll adjourn for a short time to consider this matter.

<SHORT ADJOURNMENT [10.30AM]
<RESUMED [10.36AM]

PN65

VICE PRESIDENT WATSON: We will allow the amendments to the grounds of appeal, and we will publish our reasons for that decision in due course. Mr Parry?

PN66

MR PARRY: If the Commission pleases. The position of the appellant on the appeal is (1) that Mr Goldie was not a federal award employee within the terms of section 170CB(1) as his terms and conditions were not governed by either the agreement or the award as the term federal award employee is defined in section 170CB. In any event Mr Goldie was excluded because he was no employed under award conditions as required by section 170CBA(1)(f) as, firstly, he was not bound regarding his wages and conditions by the agreement or the award as required by section 170CBA(4), and secondly, he did not have both his wages and conditions of employment regulated by the award or the agreement.

PN67

Now, I've handed up a bundle of authorities. The Commission will note in those authorities that in tab 16 there is a copy of the Graphic Arts General Award 2000, or I should say more exactly an extract of the award as it stood at 1 July 2005. And secondly, in tab 17 there is a copy of the same award as varied to 12 December 2005. Now, the first argument that we need to deal with is the construction of clause 3 of the agreement. The agreement in full is in the Appeal Book at page 2003.

PN68

The principles regarding construction of awards and agreements are well understood. This Full Bench will be well familiar with them. It is the plain meaning of the words put in the context of the purpose and content of the document. Put another way, objectively, when the union and the employer made the agreement which employees did they intend by clause 3 that it applied to. Now, clause 3, no doubt this Full Bench has looked at that before coming on the Bench. In clause 3 the heading is Application and Parties Bound. It's then said "This agreement shall be binding on (1)," and there's a reference to Australian Envelopes and their site, and after that there's a bracket and said "the employer", and then there's "(2), the employees of Australian Envelopes at the location described in 1, that is, workers governed by the award 2000 (the employees), (3) the Automotive, Food, Metals, PKIU (the union) and those employee engaged in the occupations industries and/or callings covered by the Graphic Arts General Award 2000."

PN69

Now, the drafters have in doing this utilised what is a common drafting technique in industrial documents. Early in a document to avoid repetition the drafters use defined terms. A common technique for doing that is placing words in brackets, and the drafters of the agreement have done this in paragraph 3, they've also done it in paragraph 8 where there is reference to the Graphic Arts General Award 2000 (the award). Now, this technique of putting in brackets is not an uncommon one. Ironically my learned friend uses it in his submissions both here and below. In his submissions he uses terms, puts a bracket in, and that bracket is taken to be that term when used later in the document.

PN70

So the position in our submission is, unless the context requires otherwise, where that term occurs it should be given that meaning. So where the term, the employees appears, presumably it relates back to those words set out in paragraph 2. And then the word employees appears in paragraph 3. Now, the plain meaning of that is that one uses the words as defined in (iii). Wen one has the same clause and the same structure one would assume the drafters of the document mean the same thing. This brings about the meaning that when one inserts the words, the employees in (iii), that the employees referred to in (iii) are those employees at the location governed by the classifications of the award who are engaged in the occupations, industries or callings covered by the 2000 award.

PN71

Now, this technique of describing the industry and relating it back to the classifications is consistent with the approach the drafters of the award have used, that is - and the award we've handed up, in particular perhaps the 2000 award at the very end of the document, at the very end of the list of authorities.

PN72

VICE PRESIDENT WATSON: Which 2000 award, Mr Parry?

PN73

MR PARRY: The 2000 award as varied 12 December 2005, which is at tab 17.

PN74

VICE PRESIDENT WATSON: The clause?

PN75

MR PARRY: Sorry, it's clause 1.8.7. And I'm drawing the parallel here between the drafters of the agreement and the drafters of the award. The parties bound by the award are three, 1.8.1, 1.8.2 and 1.8.3, three employer groups, 1.8.4 are listed employers, 1.8.5 the union and its members, and then 1.8.6, persons employed by the members referred to who perform any employment of the industry and industrial pursuits mentioned in 1.6.1 and 1.6.2. And then one goes back and sees "this award is made in the printing industry which includes any business, trade, manufacture," et cetera, and the Commission will note 1.6.1 and 1.6.2 which are broad descriptions of the printing industry.

PN76

Now, as it then stands down to 1.8.6, anyone employed in those industries as described would be covered by the award. However what the drafters of the award have done is put in 1.8.7, which says despite anything to the contrary employees where they're covered, whether members of a union or not, are bound by this award only if their work is covered by this award. And covered by this award we submit means coming within a classification of work as described in the award and specifically provided for. So that's the way the drafters of the award have put together their instrument, and by analogy it's a similar way to the way the drafters of the agreement have put together their instrument and describe the, define the employees as coming within the classifications covered by the award, and then you use that term throughout.

PN77

VICE PRESIDENT WATSON: Why was it necessary to add any words after the words (the union)?

PN78

MR PARRY: It's probably not particularly necessary. In a way it's not dissimilar to some of the superfluous words in the award. It doesn't add a great deal to the operation of the clause. Ultimately our position is that when one comes to consider the employees covered one should look at the way and the structure of clause 3, where there's a specific way of looking at the employees. And that's in (ii). Now, the Deputy President below in effect totally ignored 3.2. He looked at 3.3 in isolation. He didn't quality it by the previous definition, and ultimately led to a focus on the word or where it appears in (iii) and took an approach - I think it appears in his decision in paragraph 11 and 14, where his approach was, he really just leaves (ii) out of the equation and then starts looking at the use of the word or, and really comes to a view which is that all employees in the industry of, in this case envelope making, are covered by the agreement. That's the natural and logical consequence of the approach he's followed, that is the industry covered by the award.

PN79

So the consequences that all employees of Envotec are assuming that Envotec, which it is, is a company that makes envelopes. The consequence is in substance all employees are covered by this agreement. Now, that's the natural and logical consequence of that construction. There's no way of reading it down. Now, we say - - -

PN80

SENIOR DEPUTY PRESIDENT MARSH: Mr Parry, to be fair to his Honour, he does refer to 3.2 in paragraph 13.

PN81

MR PARRY: Yes.

PN82

SENIOR DEPUTY PRESIDENT MARSH: You said he looked at 3.3 in isolation. But he does refer to a possible duplication and redundancy, 3.3 would be a redundancy.

PN83

MR PARRY: Yes.

PN84

SENIOR DEPUTY PRESIDENT MARSH: 3.2, sorry, would be a redundancy.

PN85

MR PARRY: He does mention it in clause 13. He doesn't deal with it in any particular way. He doesn't say how 3 interacts with 2. Ultimately he doesn't address the position that his conclusion makes (ii) totally superfluous. His construction means it's an absolutely meaningless clause without any work to do at all. And that means that would be a most curious outcome to have clause 2 defining employees, starting off talking about the employees, being a clause that has absolutely no meaning.

PN86

Further, extending the coverage of the agreement to all employees of Envotec, one can ask, is that what the union and Envotec intended when they made this agreement? What about the employees, do we look at their intent as well? Mr Goldie himself gave evidence that he didn't attend any vote for the agreement, and that appears at Appeal Book 39 at paragraph 380. So he wasn't involved in any vote for this. Did all the employees of Envotec vote? Well, we don't know. We only know that Mr Goldie didn't.

PN87

VICE PRESIDENT WATSON: The vote was a process of approval of an agreement made between the union and the company. The parties are the union and the company, not the employees.

PN88

MR PARRY: I think that's probably right, your Honour. So the intent, the objective intent of the employees probably doesn't really bear on it. I think I can only put our submissions at the highest that we're dealing with the objective intent of the union and Envotec.

PN89

COMMISSIONER TOLLEY: The objective of the employees would have been taken into account by the union otherwise there would have been trouble next time they were up for election, Mr Parry, that's a fact of life.

PN90

MR PARRY: Well, the Commission is correct on that too, no doubt the union did take account of what the employees wanted.

PN91

COMMISSIONER TOLLEY: I hope so.

PN92

MR PARRY: I suppose this is just at a legal argument level as to whether objectively one looks at what was the intent of the employees that voted. Can we also submit that this construction which gives a very broad operation to this agreement, is it a construction that's consistent with the internal provisions of the agreement itself? And the Commission will note clause 8.1, that the agreement is to be read and interpreted wholly in conjunction with the award. Now, that would tend to support a construction that it's the operation of the award that's a guiding light, and the coverage of the award that's a guiding light.

PN93

And further with regard to this, if the agreement does apply to management, white collar and other employees, one should go to the terms of the agreement and look at the context of it. Is this an agreement that is meant to have such broad coverage? The Commission will see there's no extra claims commitments in paragraph 10, there's specific hours of work provisions, there's overtime and meal break provisions, and rather importantly there's a dispute settlement procedure which goes through to a federal official of the AMWU or his nominee. Can an agreement which contains a dispute settlement procedure which requires involvement of federal union officials, can one take it that logically it's an agreement that was intended to cover all employees?

PN94

VICE PRESIDENT WATSON: ..... I notice too.

PN95

MR PARRY: I'm sorry, your Honour?

PN96

VICE PRESIDENT WATSON: Clause 16 requires weekly wages to be paid.

PN97

MR PARRY: Yes, your Honour. There's also an attendance bonus scheme referred to in paragraph 28, and the details of that, that is for permanent, 28.5, permanent full time and part time employees, and the details of that are annexure A - I'm sorry, annexure B, which appears on Appeal Book 216. So our first argument is that we say that when one takes the plain words and looks at the context and forms an objective view as to what the parties to this agreement intended, we say it was not intended to cover employees beyond those defined in (ii). And indeed throughout the agreement the term employees is used, and presumably it applies to employees covered by the agreement. If, as appears logical, what in brackets applies and is used as the term employees, then it would make a nonsense of any construction relying on (iii), that is, if one assumes throughout the document that where the word employees appears, that it has the meaning in brackets in (ii), then a construction adopted relying on (iii) would really have meaningless consequences.

PN98

Now, the approach adopted by the Deputy President relied on clause 3(iii), and his Honour said, and this is on Appeal Book 3 on his decision, in paragraph 11:

PN99

In my respectful view clause 3(iii) of the agreement provides for three alternative categories of coverage because of the use of the word or. Employees are covered by the agreement if they fall within the occupations, industries and/or callings covered by the award.

PN100

And uses the term covered by the award:

PN101

The reference to the Graphic Arts Award is a reference to occupations or industries or callings covered by that award.

PN102

And later on, I think on paragraph 14 he says again the industries covered by the award, and he there refers to 1.6 of the award. Now, 1.6 I've taken the Commission to. 1.6 describes the industry of the award, and it says this award is made in the printing industry. It doesn't say this award covers the industry. It simply says it's made in the industry. The coverage of this award, and the concept of coverage of the award is well known to this Full Bench. This award covers employees defined in 1.8 in respect of their operations within the geographical limits defined in clause 1.7, in respect of the employees defined in clause 1.8.5 and 1.8.6 as qualified by 1.8.7. That's the coverage of this award in respect of employers and employees.

PN103

Now, the term coverage of employees - I'm sorry, coverage of award, is the term that is used in 3(iii). Now, coverage, there's reference at the end of that to occupations, industries and/or callings covered by the Graphic Arts General Award. We would submit the logical reading of that is that coverage by the award is required before clause 3(iii) operates. Now, it might be said that that's unclear and ambiguous when the drafters have used the term, covered by the Graphic Arts General Award there. It's unclear whether that relates back to the employees engaged, or the industries.

PN104

We would submit that if there is an ambiguity or uncertainty about that it is easily answered by clause 3(ii). And that, we submit, is clear on its terms. Now, the respondent argues against us on some grounds. It says firstly it relies on a decision of Commissioner Simmonds in respect of another manager at Envotec who is subject to an appeal on Thursday. We say that decision of Commissioner Simmonds is incorrect, and we will argue that case on Thursday.

PN105

Secondly, it's suggested that somehow this argument about the argument of the definition of clauses wasn't put below. We contend that this is purely a question of construction, and all the facts are before the court, there's no issue there with regards to that. The next argument is that clause 3 is not a definitions clause. Well, it's not headed definitions, but it is, we submit, using a technique well followed and well established by industrial practitioners. That is how this agreement operates.

PN106

My learned friend says in his submissions, well, sometimes the agreement uses a capital E to describe employees, sometimes it uses a small E, sometimes it has plural, sometimes it has singular. That may well be correct. However there's no indication that the drafters intended any distinction to be drawn between the use of capitals, plurals, singulars. Indeed if one goes through the agreement all those clauses clearly simply apply to employees that the drafters intended covered by the agreement and, we submit, used consistently with the way it's defined in 3(ii). Nowhere in the agreement is there any support for there being a distinction between employees in (ii) and employees in (iii). The whole agreement simply applies to employees, we submit, covered by the agreement.

PN107

The next argument advanced against us is that somehow we are reading down clause 3. We submit this is not a matter of reading up or reading down. This is simply following a correct and proper legal construction approach. As Cucks said, and the Commission is familiar with that, the question is, objectively what did the framers, being the union and the company, intend? And we say when they intended something they put it down and they intended the employees to be that category described in (ii).

PN108

Allied with this is an argument also advanced that somehow these words should be construed liberally. There is no support by any Federal or High Court that the construction of an award is to be a liberal one. The argument is that one should be forgiving and read words taken into account, how they can be used badly or inelegantly. The best note with regard to this is the decision of his Honour, French J, in the City of Wanneroo. And I think it's in tab 4 - tab 1.

PN109

VICE PRESIDENT WATSON: Tab 1.

PN110

MR PARRY: And it's on page 19 of that decision. And his Honour there said:

PN111

There is a long tradition of generous construction over a strict literal approach where industrial awards are concerned ...(reads)... award should make sense according to the basic conventions of the English language.

PN112

MR PARRY: There should be no - in our submission - presumption in favour of this award covering Mr Goldie. Here, this is in effect a private contract. It's not legislation, and recent High Court decisions and Federal Court decisions, support those approaches. So we say, as for the first argument, that this agreement did not regulate the terms and conditions of Mr Goldie's employment. He was not covered by it. There's a secondary argument, related to the agreement, that is, the requirement in the legislation that the agreement regulate both wages and conditions of Mr Goldie. This occurs, if the Commission were to find, that somehow the agreement did apply.

PN113

We submit that the agreement did not regulate the wages of Mr Goldie. The Commission will have in the authorities a decision of Simon Engineering and - at tab 10 - it's a recent Queensland decision and at tab 7 - I'm sorry not tab 7, paragraph 7. That makes good the proposition we say that the industrial instrument being an award or agreement has to regulate both wages and conditions. Then, the approach taken by the Full Bench in that case is at 17, the way they approached it and accepting that the clause was different. They asked whether clause 17, in conjunction with clause 17.2, establishes the right to wages under the award by reference to rates of pay and allowances prescribed in the relevant tables in the award and so forth.

PN114

So, the approach they took we submit is - which is the correct one, is to ask whether the award or agreement established the right to wages. Now, obviously the relevant clause here is clause 20. Clause 20, as to remuneration, that appears on page 210. The Commission will see that the wage - upon the signing of the agreement, all employees were to receive a 1 per cent increase in ordinary rate of pay and there is thereafter set out, in point 2 and point 3, increases which were to apply in the future. Now, clearly, this is an instrument the provision of which has been to operate on another entitlement. Entitlement from somewhere else.

PN115

Presumably, but one can't be clear, that it operates on the award provisions. However the agreement itself, we submit, does not regulate wages. It does not establish any right to wages. If one was not paid wages, for some reason, one would not go to the Federal Court for breach of clause 20. One would presumably go to some other instrument, be it a contract or an award, to pursue that right. Therefore, it cannot be said that clause 20 regulates wages. Now, in respect of that argument our opponents say it's a new argument. We would say it's an argument dealing with the same issue, that is, award coverage. It's a legal argument as to the construction of the agreement. In any event, it's not an argument that relates to evidence, it only relies on the words of the agreement. There is manifestly no need for there to be any evidence called about this matter. It's an argument that either stands or falls on the wording of clause 20.

PN116

VICE PRESIDENT WATSON: Is it your submission that no one covered by the agreement would have their wages determined by the agreement such as to qualify for an unfair dismissal application. If their - if coverage by the agreement was required. Coverage by the award might be an alternative basis for many people.

PN117

MR PARRY: For those that are not covered by the award, then this instrument would not allow them to take an unfair dismissal action. Of course, we don't say that's a proper construction. We would say that a proper construction is that the agreement applies to award employees and therefore all award employees would have that right to take unfair dismissal anyway. But that's a different argument than the one your Honour is raising with me. That would be our position, yes. Again, we would submit a rather anomalous outcome. Now - - -

PN118

VICE PRESIDENT WATSON: The alternative argument that someone in receipt of wages as distinct from a salary and covered by the agreement, which provides for wage increases, might have their wages determined by the agreement. So, whatever their current - whatever their previous wage level was, increased by the provisions of the agreement amounts to regulation of their wages for the purposes of that - that might not cut it - alternative means of payment then a wage, whatever that might be.

PN119

MR PARRY: There - here your Honour we're dealing with that category that aren't covered by the award but are covered by - I'm sorry, that aren't covered by the award. Well, for example, Mr Goldie probably, on a legal analysis has his wages set by contract and there's a 1999 written contract which sets an annual salary, and I think that appears at tab - not at tab but at Appeal Book page 171. Now, it appears a likely legal analysis that Mr Goldie was employed under that contract as varied, and that said an annual base salary which was to be reviewed annually, which was to cover all times and hours of work performed.

PN120

Now, if the agreement operates then the agreement would operate presumably on - as a wage increase - on the rate of pay that was paid to Mr Goldie at that time. But those on the award, I think one construction would be that when 20.1 refers to ordinary rate of pay, it is actually referring to the ordinary rate of pay that comes from the award. That's where I think logically one would read the award would be this instrument. But our position is that providing for an increase does not regulate it. We would not be - we Envotec would not be in breach - we refuse to pay salary, or pay the salary of $1, an increase that by 1 per cent, we would be complying with our agreement obligations. One has to look elsewhere to find where the obligation and the regulation we say, of wages is. I'm not sure I can add a lot further to that point your Honour.

PN121

Now, the next proposition that we raised on appeal is that there are concerns the duties falling within classification 8 of the award, now perhaps I'll deal with this argument before dealing with what we say about level 8. But ultimately,
his Honour, at paragraph 17 - I'm sorry paragraph 16 of his decision. He reached the conclusion that the agreement applied and then at paragraph 16 he said it wasn't necessary for him to deal with the alternative submissions. Much of the evidence led related to this issue. Then he briefly concluded certain of his conclusions and what he does is set out paragraph level 8. He then says in paragraph 18 he prefers the evidence of Mr Goldie to Mr Mones, but he says they were both forthright and credible.

PN122

Then he says in paragraph 19, Mr Mones had only been with Envotec for a year, which was true. He agreed he was not in a position to dispute Mr Goldie's evidence before its commencement on 20 Jun 2005. Now, we'd simply make the observation there that the focus and the important evidence obviously concerned the months leading up to the termination of Mr Goldie in February 2006. So, the position before 20 June 2005 is at best of marginal relevance. Mr Mones - then
his Honour goes on and said - did not know whether Mr Goldie was paid penalty rates and the citation there is paragraph - I'm sorry paragraph 875. 875 is on Appeal Book page 76. At this stage, on page 876, Mr Wheelahan is
cross-examining Mr Mones and he's asking him about a Mr Haywood.

PN123

Mr Haywood was an employee that had worked for Mr Mones, had been a supervisor. Mr Haywood had actually left before Mr Mones commenced on 20 June and it was put to Mr Mones that he wasn't in a position to dispute anything about whether Mr Haywood was covered by the award, covered by a certified agreement. At 875 - do you know whether he was paid penalty rates, don't know. Rather unsurprising that he didn't know about that, but his Honour in his decision makes a point of saying he did not know whether Mr Goldie was paid penalty rates. So that's simply error and obviously something taken into account and given weight, but simply wrong.

PN124

VICE PRESIDENT WATSON: Nowhere else in the transcript is a similar comment made in relation to Mr Goldie? This might be just an incorrect reference.

PN125

MR PARRY: It might be, but I don't - having looked through the transcript I'm not aware whether there's any suggestion at all, and I'm sure it's not - that
Mr Goldie was paid penalty rates. Indeed - - -

PN126

VICE PRESIDENT WATSON: The issue is whether Mr Mones knew whether
Mr Goldie was paid penalty rates.

PN127

MR PARRY: Well, that's true your Honour. Indeed, this paragraph really deals with what Mr Mones didn't know and we - our position is that what the
Deputy President was required to do was to carry out an assessment and follow the sort of approach taken by Full Benches of this Commission of examining, as we've set out an extract from Carpenter v Corona, examining the nature of the work and the circumstances in which the employees employed to do the work with a view to ascertaining the principal purpose for which the employee is employed. We say that manifestly did not occur.

PN128

VICE PRESIDENT WATSON: Why did you say earlier that that was an assessment that needed to take place a month before the termination rather than six months or three months or twelve months, or 5 years?

PN129

MR PARRY: Well, Mr Goldie had been appointed as a warehouse manager that June or so. So, Mr Goldie had been at some stages in holding positions nationally within the company, he'd been at very senior management levels. Back in his long career with the company in old Victorian state manager roles and so forth. He'd been a very senior employee. So rather than - we would accept that the important time to make the assessment as to whether he was covered one - is not looking back two years, three years when he was in a very senior position - but looking at the last six or eight months when he held this position of warehouse manager at the Victorian operations at Notting Hill. That's why I say that.

PN130

Now, we have - that's the position that was set out by the Full Bench in the Corona case. This Full Bench may well be aware of another Full Bench decision in the matter of Brand, which is not in the Appeal Book, I'm sorry not in the Authorities Book, but I have a copy of that to hand up to the Full Bench. It's in - I'm told it's in my learned friend's - now this is handed up hopefully for the assistance of the Full Bench. It was an appeal from a decision of a Commissioner about award coverage. I only hand it up to deal with what appears on the last page, where the Commissioner below had taken the approach in
Carpenter v Corona about what was the principal purpose. We contend in this appeal that the principal purpose is the proper approach. But the Full Bench there identifies a couple of other formulations of this, being the major and substantial employment, engaged substantially. Ultimately the Full Bench in that decision accepted and took the approach of the principal purpose as it was proposed by the parties.

PN131

So, our submission is that the Deputy President was required to make some sort of assessment of the principal purpose and he did not. His examination was cursory and insufficient and there is not ascertainment of the principal purpose. The analysis that led up to his conclusion was manifestly unsatisfactory in our submission. Now, our opponents say that and - sorry, my learned junior tells me that Mr Goldie took over as warehouse manager in May 2005 and that's at PN459.

PN132

Now, as against us, our opponents put in submissions at paragraph 25 which really are very limited in their defence of the decision of the Deputy President and indeed their primary position seems to be that the matter be remitted to the
Deputy President to provide his full reasons for concluding that the respondent's duties fell within the parameters of level 8. We say that this is not an appeal about non-provision or lack of reasons. This is an appeal about a member at first instance taking an erroneous approach and ending up with a manifestly inadequate record of his conclusions and therefore remitting it to the Deputy President is inappropriate. In our submission, the decision of the Deputy President should be quashed.

PN133

The matter then turns on what happens to the position of Mr Goldie and we contend that there - not withstanding what the Deputy President said - there is little real dispute about the evidence and this will eventually determine the matter and I'll go back to that shortly because before determining the matter the Full Bench has to determine whether the duties of Mr - and the principal purpose has to be judged against a level 5 structure for the level 8 structure. As the Full Bench has noted, this case was conducted as though the level 8 classification structure operated and that was the position advanced on behalf of Mr Goldie and not contested by Envotec.

PN134

Now, the award and if I could take the Commission to the new award as it stands, which is at tab 17. Now, this award was significantly amended following a decision of Senior Deputy President Marsh, handed down in October 2005, which is contained in our tabs at 12. I'm not going to take the Commission through the greater part of that, although Deputy President Marsh would probably want me to do that.

PN135

THE SENIOR DEPUTY PRESIDENT: No, I thank you for your .....

PN136

MR PARRY: I'm sure your Honour would welcome some more submissions about the appropriate classification structure.

PN137

THE COMMISSIONER: We're not going to be here for a month Mr Parry.

PN138

MR PARRY: Can I make an application to reopen it? However, obviously it is - from looking through that decision that that was a big case about classification of employees and about where employees should be classified and about moving from - well, there's an interim structure through to the five level structure then moving from that structure through to the eight level structure. Now, there was - if one turns to the award as varied following that decision, the Commission - what the Commission did in this award was set out the classifications in clause 5 - 5.1. Which set out - 5.1.1(a) - classifications, weekly wage rates, qualifications and points - I of that clause says:

PN139

The classification set out in table A shall be read in conjunction with part 5 and appendix F.

PN140

Then you have a table, you have reference to the rates of pay and you have then in 5.1.1B - classification - reclassification of employees. No employees are to lose money. It moves to employees with formal AQF classifications and it sets out a mechanism for their movement and then for employees without classification, without formal AQF qualifications and 5.1.1(b)(vii). Now, both allowed for an assessment to be made of the qualification and then there to be some translation of that employee into the new classification structure. Now, it's manifest that that translation is going to be something the employee knows about and is conscious of. Either he has the qualifications and he's translated, or he doesn't have the qualifications and he's translated.

PN141

Then, that translation has to occur within a period of six months, from 26 October 2005. That logically accepts that it can occur within that period. At the end of that period it has to occur. So, that's the structure that the Commission set up. Now, the one issue that there is - I should point out that there was evidence that Mr Goldie did not have an AQF Certificate qualification. That's at PN325. So we're then dealing with, was he translated under 5.1.1(b)(vii) and that's subject to B, that is translate as determined by the employer, pleading and requirements of the classification definitions. Meeting the points requirements and then there's a provision for any dispute or disagreement, and there's a mechanism set out for dealing with that.

PN142

Now, Mr Goldie gave evidence in this case that he had not even given any thought to award coverage until after he was terminated and he had seen a lawyer. That evidence is on page 39 of the Appeal Book at PN376. He's asked there,

PN143

the first time that it came into your mind that you might be an employee entitled to the award or entitled to the certified agreement was when you spoke to Mr Dunston, who is a legal practitioner on 11 April 2006? Yes.

PN144

As it goes on, 379:

PN145

It was Mr Dunston that put to you the possibility of being an award employee.

PN146

That's also the page where the Commission will note that Mr Goldie never voted, was invited to vote in respect of the certified agreements over his last six years of employment. Now, we would submit that it is clear that there was no process of translation followed with regard to the classification of Mr Goldie as contemplated by 5.1.1(b)(vii). We say that's crystal clear. Now, then if he had not been translated then he remained under a classification structure which preceded that which is contained in tab 16. Now, - - -

PN147

VICE PRESIDENT WATSON: If he was covered by the award.

PN148

MR PARRY: Well to be covered by the award we would submit - I'm sorry your Honour you're right, but to be covered by the award we submit that you would have to come within the classification - one of the classifications. That's our submission. If the Commission has the Graphic Arts General Award. Now that's - this is the award that preceded the amended award. It has a similar structure as to who it covers. That is, the Commission will see 1.6 - 1.6 covers the industry of the award, 1.7 covers the area of operation and 1.8 covers the similar structure as appears in the current award. Well, it's probably exactly the same structure. Our position is that you are covered by this award if you fall within a classification which is covered by this award.

PN149

Then, to go to the wage rates and classifications in this document. It's on page 23, it provides that adult employees must be paid the following weekly minimum wages. At 5.1.1(b), interim classification structure - this is the one put in place by Commissioner Merriman. The classifications making up the current 5 level broad banded structure are at appendix F and remain in operation. That then takes the Commission to what everyone was trying to get out of the award for a long time. Or an interim step along the way. Then at appendix F, which is on page 153 of 183, interim and I quote:

PN150

The interim classification structure relates to an ..... employed, performing the description of employment set out in the second column at occupational group level in the first element.

PN151

Now - - -

PN152

VICE PRESIDENT WATSON: What's appendix G? I go back to page 24 of that award, it refers to something arising from a decision and order of
Commissioner Merriman, appendix G.

PN153

MR PARRY: That's on page 166.

PN154

VICE PRESIDENT WATSON: Is it superseded, or is it an interim classification structure that applied it sometime in the past and now appendix F is the current one or they're both still applicable, or were they applicable at the relevant time?

PN155

MR PARRY: I understood what was in appendix F was what was in operation. Yes, well - it isn't our case to fit Mr Goldie in here, but we're trying to work out where it could be said he falls. Now, there are in my submission, two apparent options. That is, he falls within the printing industry section, I'm not sure why he'd be in the printing industry but as a - there doesn't seem to be anything specific that deals with a warehouse manager. It probably may well fall within part 6 on page 164. Paper cutting, paper working and despatching. You have various employees and functions and you have storepersons, packers and despatchers. Storepersons and packers and despatchers are defined terms. Then you have employee who supervises, directs or is responsible for the work of employees. They for some reason are classified at level 2, which is the second lowest classification. Then you have other adult employees, which is the lowest classification. Classification 1.

PN156

Now, that's the award that Mr Goldie must be, in our submission, assessed as against. Now, here we say that the proper approach is to work out what was his primary role or function. There was no dispute about that. His evidence gives the primary role. His evidence was that he was the warehouse manager. He said in his statement in these proceedings, which is at Appeal Book page 148. His statement - sorry 149:

PN157

At the time my employment was terminated I was the warehouse manager for the Notting Hill site of the respondent's business. I assumed responsibility for the Notting Hill warehouse about April 2005.

PN158

He said in cross-examination at Appeal Book page 48 - at Appeal Book page 48 at paragraph 511, it was put to him as warehouse manager. Sorry, at 510 he was asked:

PN159

Your principal role was described as warehouse manager, is that right?---Correct. As warehouse manager you were responsible to manage and oversee the warehouse, that's correct isn't it?---Correct.

PN160

He repeated this consistently through his evidence.

PN161

VICE PRESIDENT WATSON: He goes on to say and get things out - him on the day.

PN162

MR PARRY: Yes.

PN163

THE COMMISSIONER: Mr Parry, does he say anywhere in his evidence that it's in the finished goods section of the operation? Because there's a distinction drawn in the award.

PN164

MR PARRY: Well, I don't think he probably uses the term finished goods, but the warehouse - the operation at Notting Hill has an area that makes envelopes and then they're moved to the warehouse and then from the warehouse they're shipped out to various places.

PN165

THE COMMISSIONER: So it is a finished goods section.

PN166

MR PARRY: I'm sorry your Honour?

PN167

THE COMMISSIONER: It is a finished goods section.

PN168

MR PARRY: Yes.

PN169

THE COMMISSIONER: Well, it would be. Finished envelopes go to the warehouse to be despatched.

PN170

MR PARRY: Yes, actually at PN466 he actually said - it was put to him:

PN171

When you took over this job, you were responsible for the whole of the warehouse facility, if I might put it like that, within the operations. Is that right?---The finished goods warehouse, not the inwards goods warehouse.

PN172

THE COMMISSIONER: Yes, well that distinction needs to be drawn and put to these classifications you referred to earlier.

PN173

MR PARRY: Yes, your Honour. You're correct Commissioner. As I understand it it was a finished goods.

PN174

THE COMMISSIONER: Yes, thank you.

PN175

MR PARRY: This theme of managing he repeated on a number of occasions with overall responsibility. For example, 587 and 637. Now, 637 is where he was asked what was your main function? He said my main function was overall management of the warehouse. So it wasn't - that was his evidence. Who did he report to, he reported to the National Operations Director Mr Mones. That's at Appeal Book 163 at paragraph 25. He had a senior stores person or leading hand reporting to him. Appeal Book 153 at paragraph 20 he described himself as part of the management team. At PN416 at AB41, he received a car and significant salary well in excess that the award contemplated. That was his evidence. The company's evidence was to the same effect.

PN176

That's Mr Mones' statement at Appeal Book page 191. At 191 Mr Mones said
Mr Goldie was responsible for the control and distribution of the completed product, which was basically what Mr Goldie had said. At 198 - Appeal Book page 198 - Mr Goldie expanded on this - I'm sorry not Mr Goldie, Mr Mones - and said Mr Goldie was responsible for the control and distribution of products manufactured by the company. This involved supervising warehouse employees, liaising with sales staff on distribution matters and also having day to day contact with transport providers contracted to despatch the companies products to various customers nationwide.

PN177

Evidence of Mr Mones that was not disputed was that Mr Goldie recruited the staff, that's at paragraph 60. He approved leave, being annual leave and sick leave. He prepared weekly reports as to the operations of the warehouse, paragraph 48. Now, this case ended up then turning on the occasions that Mr Goldie used the machine to use pellets and help warehouse staff use trucks. The case became fixated on how often that occurred, whether it was daily or weekly. We submit that that is a fixation on very much incidental work. It was never in dispute what his primary role was or what his substantial employment was.

PN178

Our submission is that proper analysis of that would result in the finding that the substantial employment of Mr Goldie was as a manager and a manager not falling within the level 5 structure, nor in the alternative, on the level 8 structure. We submit that this Full Bench in a proper rehearing of the matter will come to those conclusions. If the Commission pleases, those are the reasons we say this appeal should be upheld. If there's nothing further those are our submissions.

PN179

THE COMMISSIONER: Mr Goldie's contract of employment at the time of termination, was that by a contract between him and the employer? Can you point it to me in the Appeal Book?

PN180

MR PARRY: Probably the best indication of that is in - - -

PN181

THE COMMISSIONER: Is the one from the paper products? Is that the indication you're giving me?

PN182

MR PARRY: No I'm sorry I've found it your Honour. It's on Appeal Book page 171.

PN183

THE COMMISSIONER: Yes, thank you I'll read it, thank you.

PN184

VICE PRESIDENT WATSON: That seems to go back to 1999.

PN185

THE COMMISSIONER: Yes, that's why I'm asking to further develop that - that is dated 1999. Was there a new contract after that or were there just agreed additions between Mr Goldie and the employer?

PN186

MR PARRY: As I understand from reading the evidence, that was the ongoing contract but it was varied in two material senses. Presumably by consent. Number one, that employment was in position of project manager, but there were a couple of changes to his job title and his job duties between 1999 and 2006. Secondly he received wage increases. Now they're not a variation to the - but they're contemplated that there would be an annual review and as I recall the evidence there was such annual reviews and there were such increases given to him. So really, save for the position of job title - yes and we're hopefully not being inconsistent with the position taken by Mr Goldie in Supreme - in Federal Court proceedings where he's relying on this particular contract as the employment agreement itself in other litigation.

PN187

THE COMMISSIONER: So in effect, with taking into account those variations you just enunciated, the remuneration clause for remuneration on page 172, would in effect still have applied. I'm simply looking at 4.5 in respect to payments, because the submission was made earlier he did not receive overtime payments, that explains why.

PN188

MR PARRY: If the Commission pleases.

PN189

VICE PRESIDENT WATSON: Thank you Mr Parry. Mr Smith?

PN190

MR SMITH: Yes, thank you your Honours. If we adopt these submissions of the appellant in this matter, if you do wish to make some additional submissions at this point of whether Mr Goldie was employed under the classification structure under the Graphic Arts Award and in particular the way that structure applied. If I could just start with that point of whether a person under the award does need to be covered under a classification mentioned in the award. I draw the Commission's attention to paragraph 10 of DP Hamilton's decision, which states that because of clause 1.8.7 of the award, the employee is not covered by that award unless their work is covered by that award, presumably by classification.

PN191

With 1.8.7 of the award, we would submit it's quite clear there that a classification needs to be set out in the award, applicable to the relevant person for the award to apply. It's not simply a matter of looking at the incidence clause of the award without that concept. Now to understand the context for the existing classification structure, it's necessary to track back some years to the development of that structure and there's a useful document which is attached to the decision of her Honour Senior Deputy President Marsh dated 26 October. This is tab 12 in the appellant's Appeal Book on page - well the numbering starts again. But it's a chronology of the 16 years related to these negotiations.

PN192

We wouldn't necessarily have drafted it up that way ourselves, it was the union's description of the events. It does highlight the key events that have occurred. I only need to refer to some of them in just providing the background in just providing the background to the words as they now appear in the award. If I could start with point 6 in that chronology which was the issue that you mentioned your Honour about Commissioner Merriman's decision. The print number is referenced there in point 6 of the chronology, but if it will assist I'll hand up a copy of that decision because it is very relevant to the words that are now in the award.

PN193

VICE PRESIDENT WATSON: I won't mark the decision but I will mark the outline of submissions filed on behalf of the AIG.

EXHIBIT #S1 OUTLINE OF SUBMISSIONS FILED ON BEHALF OF AIG

PN194

MR SMITH: Thank you your Honour. This is a decision of Commissioner Merriman from 17 December 1993. It followed quite a protracted series of events which this award always seems to generate. But you can see on page 4 of 6 of that decision, that top right hand corner. The paragraph at the bottom of that page sets out the context to this 12 level structure that now - well it's the issue that you raised your Honour as to what appendix G is. Appendix G is a 12 level structure that was inserted through this decision. It states there that, and I quote:

PN195

The Commission notes that no wage increase will flow from the insertion of the interim classification structure until such time as further applications are made and either agreement is reached or decisions are made as to the translation process for the existing classification structure to the new structure. It is also a requirement of this decision that sector specific indicative tasks for parts 2 to 9 of the award are to be concluded, together with the incorporation of appropriate training requirements. The Commission also notes that until the appropriate training requirements are identified then the grading levels above tradesperson cannot operate.

PN196

So that was a decision that implemented a classification structure for testing purposes and this is an important point. It was put in the award for testing purposes. The industrial parties, including AI Group, the AMWU, the Printing Industries Association spent several some years and several rounds testing that classification structure. If I can go back to her Honour's chronology, another key event after numerous other events is point 20 in that chronology where
Justice Munro issued a decision urging the industrial parties to give constructive consideration to the work done by the AMWU and contained in Exhibits T7 and T8.

PN197

Now this is a proposal of the AMWU for a 14 level structure which was very similar to metals. Now that Exhibit T8 was discussed at great length for years and years and years throughout this process, but one thing - and it was actually tendered again in the appeal proceedings relating to Senior Deputy President Marsh's decision which was upheld on appeal. But one thing that - I don't need to go to it because it's history, but it does include the description of Merriman's decision which - I couldn't have put it better myself, it says:

PN198

In December 1993 Commissioner Merriman issued a decision, upheld on appeal, inserting a new 12 level classification structure in the Graphic Arts Award and the Country Printing Award for testing. This was the approach taken in other key awards such as the Metal Industry Award. Before finally determining to put a new structure in place the employer's appealed this decision but the Full Bench refused leave for appeal to be granted with respect to the awards. In some industries such as metals, the testing was a joint employer union exercise. Generally in the awards the parties have tested separately. The clear intent of the Commission is that either the union or the employers or the parties jointly will return to the Commission with an application to vary the awards to insert a new classification structure.

PN199

It goes on to identify all the things that would need to be in that like pay rates, and so on. That, we submit is quite clear. Then, in point 21 in the chronology attached to Senior Deputy President Marsh's decision is reference to a recommendation given by Justice Munro which I would also like to tender a copy of. The references are there in that chronology. I apologise for the quality of this copy, but I couldn't find it on the Commission's site, so I dug it out of the file.

PN200

But what this does provide and I was involved in these proceedings, was after a lengthy period of disputation, a lack of agreement, his Honour Justice Munro recommended that an 8 level structure be developed because that was what AI Group and the Printing Industry Association was insisting upon and it sets out some processes there that were going to apply and in all good faith we did negotiate for years around those principles without reaching agreement for a long time. It was overtaken by events to some extent as set out in point 22 of the chronology, where her Honour issued an award simplification decision. That was a very lengthy decision, as were the proceedings. The reference there is PRR7898. The decision some 98 pages long and followed quite a lengthy arbitration relating to a whole raft of provisions in the award.

PN201

The classification structure, the parties decided, given the extent of the other things that we were in contention over. We decided to put that to one side and her Honour at paragraph 119 of the decision dated 5 August 1999 states that the parties have agreed to hold discussions over wage rates and a classification structure to ensure that a final classification structure is included in the award which meets the principles in the paid rates decision, paid rates review decision. It includes the references there. It goes on to say in paragraphs - in paragraph 120 - that the wage rates have not been fully adjusted in accordance with the 1989 minimum rates adjustment process. An interim classification structure, five levels, was inserted by Commissioner Merriman in PRJ0152. The definitions have not been developed. It is envisaged that the exercise will be completed by December 1999 which was optimistic your Honour. We did in good faith try to do that.

PN202

It is important because the wording that was put into the award following her Honour's decision, is the wording that we say was applicable up until the new classification structure became operative which I will deal with shortly. In tab 16 of the appellant's Appeal Book, there is some wording there in paragraph 5.1.1(b), and this is very important wording because this sets out the structure for the classification structure prior to the variation in October of 2005. This is paragraph 5.1.1(b), headed up Interim Classification Structure.

PN203

It states:

PN204

The classifications making up the current five level broad banded structure are in appendix F and remain in operation ...(reads)... Munro J on 13 March 1997.

PN205

He quotes the C numbers. I go on:

PN206

And a decision and order by Merriman C which inserted an interim classification structure now contained in appendix G.

PN207

So what we had your Honours and Commissioner, is a structure still in appendix G that was there really just for discussion purposes, and we had a structure in appendix F which was operative as set out in the first sentence, and we had a recommendation of Munro J that we should develop an eight level structure. Now, we insist that the Munro recommendation be referred to in that paragraph, and the unions insisted that appendix G contained the structure that Commissioner Merriman developed.

PN208

Now, that wording in 5.1.1(b) was agreed wording that was endorsed by the Senior Deputy President in issuing the orders relating to that matter. Now, eventually through extensive negotiations and extensive involvement of Senior Deputy President March in conciliation proceedings that went on for a number of years, agreement was reached on most of the awards for the award variation, and a final few matters were arbitrated.

PN209

Now, the clauses which were agreed upon in the proceedings that led to the decision in October of 2005 including the wording in 5.1.1(b)(x), which is that wording that states that the translation into the new structure will occur within a period of six months from 26 October 2005. It was the clear agreement of the parties and the understanding of the parties as clearly reflected in the words there that employers had until 26 October - sorry, 26 April 2006 to implement the classification structure. There's never been any dispute about that, and I would be amazed if the AMWU or any party was to put the view that that was in contention, because that was a key part of the negotiated outcome, that employers had this period of time to understand the new structure, to implement it and to prepare for any costs that might arise from that new structure.

PN210

Now, the wording in 5.1.1(b)(vi) was also agreed, and this highlights the same point, and Mr Parry has dealt with this issue at some length. That this is the first option where there is a situation where the relevant employee has a formal qualification. There are two streams, where there's a formal qualification and where there isn't a formal qualification. If there's a formal qualification it states that as from 26 April 2006 people have to be classified and paid in accordance with the new requirements.

PN211

Now, that's quite clear. It's abundantly clear the date when this becomes an award requirement is 26 April 2006. Of course employers could agree to do it earlier than that if they wished to, but it is not an award requirement. Over the - well, in the next section, 5.1.1(b)(vii), this is the other stream where the relevant employee doesn't have a formal qualification. And this was the main issue that was arbitrated by Senior Deputy President Marsh in the proceedings that led to the decision in October of 2005.

PN212

Now, there's also an area where we had a different view to the Printing Industries Association, a very different view, because we were worried that if all you had in the award were vague descriptions set out in vague words like the words as cited by Deputy President Hamilton for level 8, then in our members' workplaces, many of which have fairly, you know, militant industrial type environments, that there could be reclassification claims. So we favoured a more rigorous approach to classifying employees, one where there's some rigour, particularly if there is a dispute about classification.

PN213

Now, the way the final clause came together through the decision of Senior Deputy President Marsh as set out in 5.1.1(b)(vii) it states that:

PN214

Employees will translate into the classification structure on the following basis as determined by the employer.

PN215

Firstly:

PN216

That they meet the requirements of the classification definitions in subclauses 5.1.1(c).

PN217

And they're the indicative task based definitions like the one that Deputy President Hamilton has floated in his decision relating to level 8. But the second option which the employer is able to choose is:

PN218

That they meet the points requirements set out in 5.1.1(a)(ii) table A and appendix F.

PN219

Now, this is a more sophisticated structure where there's a bank of competency standards, with points associated with them, there are rules that require certain more complex competency standards to be possessed for higher levels, and so on. And it clearly states there that should there be any dispute or disagreement in relation to classification or reclassification then the competency standard method must be used. Now, that approach, as I said earlier, your Honours and Commissioner, was supported AI Group, not in the context of those words, because we wanted to have an optional arrangement with the competency standards, but we did want disputes determined by a more rigorous process than just reading some vague words, particularly at the levels above at the trades rate at C5.

PN220

Now, if I could draw your attention to paragraph 251 in Senior Deputy President Marsh's decision, which, as I said, is tab 12 in the Appeal Book, paragraph 251 states that:

PN221

Both the AMWU and AIG submitted that the points system was necessary for resolution through the dispute settling procedure because it provides more precision than looking at the classification definitions alone. AIG submitted the training package contained standards which provide guidance on assessments and overcomes potential claims from militant employees.

PN222

And if I could then refer to paragraph 260 in the decision, which is where her Honour sets out in summary the conclusions that were reached on the contested points. In point 1 you say, your Honour:

PN223

I have decided that the points system will be a method of choice for the employer in classifying an employee and will be mandatory in resolving disagreements or disputes over a classification.

PN224

Now, the decision of Senior Deputy President Marsh was appealed by the Printing Industries Association. The Australian Industry Group did not participate in that appeal. But the Full Bench upheld her Honour's decision. Now, at the time when Mr Goldie's employment was terminated the company quite clearly had not decided which of the two options to implement, and it didn't have to decide until the relevant date in April of 2006. Mr Parry pointed to the extracts from the evidence where Mr Goldie stated that he hadn't considered that he was covered under the award until he went to see a lawyer.

PN225

Now, if he didn't understand that he was covered under the award then there's no way that the process of applying one of those two options could have occurred, because he of course would have known about it if he had been translated into the classification structure. Now, at paragraph 17 of Deputy President Hamilton's decision he sets out in full the definition from 5.1.1(c) for employee level 8. Now, in our submission that clearly shows that his Honour erred in this matter, because that is not the process that the industry parties decided should apply, that is not the process set out in the award.

PN226

The only time that you would get to look at the classification in 5.1.1(c) is if the employer chose to use the classification definitions in those clauses or - well, that is the only way, because if there was a dispute about the classification the other model has to be used. So to say that this applies when clearly there was a dispute about the concept of whether the relevant employee was covered under the award. But we say that is an incorrect application of the classification structure. Now, clearly our - - -

PN227

VICE PRESIDENT WATSON: What was going to happen on the date in April? What was going to happen in terms of the application of this eight level structure, assuming that there was no attention given by the employer or employees to any particular level?

PN228

MR SMITH: Your Honour, on that day it just became an award requirement. The wording in the award is there, and it becomes operative on that day, and it gives employers the option of implementing it an earlier date should they choose to. Now, we have a large number of members in the graphic arts industry. I would estimate that a very small percentage, very small, would have implemented it any earlier than that date. The decision was made fairly close to Christmas, we had the Christmas period, it was complicated. We did run briefings for employers to consult with them about the issues, but I think it would be fair to say that a very small percentage would have done that. And there's absolutely no evidence that the company in this matter did that. And it had the right to not implement the new classification structure until 26 April.

PN229

Now, if the decision of Deputy President Hamilton stands, now, we would anticipate that the Metal Workers Union, or the AMWU, would be as concerned about the situation, perhaps even more concerned than we are, because for 16 years they argued vigorously that an indicative task based classification structure shouldn't go in the award. Now, ultimately it went in there but only as the second option, if you like. The union's preferred approach of having a competency standards model is in there as well. The final model looks not a lot like the one they were pursuing, but the two models are there, they're options. The union was quite prepared to give the employer the option because at the end of the day if they disputed or any of their members disputed a classification, the union's preferred model would apply.

PN230

Now, with the way that Deputy President Hamilton has applied the classification structure by just picking the second option, that would be of great concern to all of the industry parties, and hence one of the reasons why we've intervened in these proceedings. Our prime submission is that the classification structure does not apply, it is not operative until 26 April 2006. As set out in our outline of submissions, if that submission is not upheld, and we can't see how it possibly couldn't be, but if it was not upheld then our secondary submission is that the approach that his Honour took to classifying Mr Goldie was erroneous, and for that reason also the decision should be overturned on appeal. If the Commission pleases.

PN231

VICE PRESIDENT WATSON: Thank you, Mr Smith. Mr Wheelahan?

PN232

MR WHEELAHAN: Your Honour, neither the intervenor or my learned friends in oral submissions took the Full Bench to the decision of Dazmany Pty Ltd, which is tab number 8 of the authorities, trading as Sails Resort v Thorn, reported 74 IR 182. Now, that decision concerned whether or not a person was a federal award employee. And you will see at page 184 of the decision Mr Rockford's reliance on the decision of Macken J, and then it's quoted as follows:

PN233

It is trite law that merely designating Mr Flynn as the manager cannot be conclusive of his occupation, nor can such a designation oust the operation of the award.

PN234

And it goes on. That is precisely the situation with Mr Goldie. You will recall reading the submissions, and there's reference to quite a high wage over his 32 years of employment. I think he ends up with about $140,000-odd. But let's have a look at the substance really of his position, what it's worth. If we look at transcript 1029, which is Appeal Book 88, I cross-examined Mr Mones about the remuneration level and his rate of pay. And you will see there I asked him a question which he didn't answer, and I went on:

PN235

I'm talking about the remuneration, his rate of pay. He was on a salary in excess of 100,000, and you proposed to reduce his salary to 60,000 didn't you?

PN236

And he says:

PN237

If you don't include shares and everything, yes, you are correct.

PN238

Now, I can say this. As to shares, the reference, because it's public knowledge and my learned friend has referred to the pleading in the Federal Court, which amongst issues to do with the shares is seeking enforcement of the redundancy payment under the certified agreement, the offer for the shares for the employer has been $1. Then on his feet my learned friend took you - - -

PN239

COMMISSIONER TOLLEY: A total of $1, Mr Wheelahan?

PN240

MR WHEELAHAN: Yes, sorry, $1. For all shares that he owns in the company he's been offered $1.

PN241

COMMISSIONER TOLLEY: Is someone going to leak the value of the shares to the stockmarket.

PN242

MR WHEELAHAN: Sorry, your Honour?

PN243

COMMISSIONER TOLLEY: I'm just wondering whether someone is going to leak the value of the shares to the stockmarket.

PN244

MR WHEELAHAN: I won't answer that, Commissioner. You were then taken to, at Appeal Book 44, and this was taken again to emphasise the point of him being a manager, that it wasn't in dispute, and that he took over management of the warehouse in May 2005, at PN 459. Answer "Correct, we don't dispute that." But if you read on and look at PN 461:

PN245

When you took on the job you didn't take any complaint to the company that you were being demoted didn't you?

PN246

This is in cross-examination of Mr Goldie. You're being demoted. So there's this great reliance in the written submissions about how he was a senior employee for many, many years, he was employed for 32 years, and then in the twilight of his employment at about 60 years of age he is demoted to warehouse manager, and the proposal is to then cut his wage to $60,000. Then it said of course - and I'll deal backwards this time from the award coverage whilst it's fresh in your memory - that he doesn't fall within the 8 classification level. And then it's argued, does he fall within the five classification broad band that the previous version of the award at tab 16.

PN247

And our first point is, that's not part of the notice of appeal. The notice of appeal deals only with tackling the finding of falling within level 8. I know oral submissions have been made by my learned friend, but the amendment at paragraph 6 deals only with level 8, again more the reason you find against the respondent on the earlier submissions that it should be remitted. But in any event, even if we then deal with the level 5, as the Full Bench has been taken to, we're dealing with, at page 164 of 183, the part 6 paper cutting, storepersons, packers, dispatchers, as the Commissioner pointed out, and then an employee in charge of or who supervises, directs or responsible for the work of three to eight employees, nine to 15, over 15. Mr Goldie was in charge of less than 15 employees in the demoted position.

PN248

Now, it's also then put that the parties are not in dispute about the facts. Well, if that is to be taken, and it's not conceded, I then certainly direct the Full Bench to the statement of Mr Goldie at Appeal Book 163 to 165 to look at what he actually did. And Deputy President Hamilton was not in error in that context. As I've taken you to Dazmany, one doesn't simply leap to the title of manager of a warehouse and make submissions that therefore the award can't possibly cover him.

PN249

You will see what he actually did day to day starting at 163. He had run on orders, add ons, they were printed overnight. This is at point C:

PN250

Every morning we sorted through them, located the jobs, add them to the daily runs. Nearly every day I assisted in the process.

PN251

D:

PN252

Load the trucks, split them early as possible to vans.

PN253

Et cetera:

PN254

Every morning I was a member of one of these teams of three loading trucks or picking add ons.

PN255

This is what he actually did:

PN256

In order to operate efficiently five vans had to be dispatched plus two larger vehicles.

PN257

Point E, again just in the middle there:

PN258

Every day I would pick calling orders and urgent specials deliveries for customers.

PN259

Again the Full Bench is invited to treat this as no contest as to facts:

PN260

Whilst I never operated a forklift I did operate an electric hand truck to transport goods around.

PN261

And it goes on, F:

PN262

Every day I spent virtually all my time on the warehouse floor and operated from within the portable office.

PN263

And 9 goes on:

PN264

Most days Mr Wayans walked through the warehouse at about 7.45 to 8.15. He saw me loading the trucks on a regular basis and never once said I shouldn't be doing that.

PN265

Now, again that's also in the context of Mr Mones under cross-examination saying that he probably spent about 15 minutes down at the warehouse a day, and hence Deputy President Hamilton was correct to find that although there was no issues to credit, if he was to prefer someone's evidence he was to prefer Mr Goldie's. And there's no reason why the Full Bench in this matter should not prefer the evidence of Mr Goldie against that of Mr Mones. And you will recall also in this there's reference to, for example, at 164:

PN266

Chris Gallagher saw me loading the truck, he commented, be careful how you lift and bend your legs.

PN267

H over the page:

PN268

Every day I was mindful of the need to clear the stock out of the walkways in effect. He would then stack them, the storeperson Michael Aljundie would regularly assist me to do this, but Kevin Crennan, Vito La Rocco, Ross Dundarella -

PN269

And you will see there's a flurry of names and employees mentioned. And the issue of the Jones v Dunkel was nobody called the dispute any of this. All that was called was Mr Mones, Mr Mones who was there since May '05, and the purpose of their cross-examination about whether he knew Mr Haywood and whether he was award covered was the don't know. That was in the context of setting up Mr Mones, that he really didn't know anything. In substance all he knew was, I went down there for 15 minutes a day, I don't know anything about Mr Haywood, his predecessor, don't know whether he was award covered. And the respondent in the primary application chose not to call any witnesses to dispute any of the evidence put by Mr Goldie.

PN270

So the respondent submits that (a) it does fall within the eight classification system. If that is not the proper classification systems it's again being put, well, there's no evidence that it applied. The Full Bench is still unaware in fact whether it has been implemented. The intervenor says, well, it's marginal who has put it there, it's now just a requirement of the award. Well, has it today? Did it then? I mean, this is knowledge in the hands of Envotec Pty Ltd, and again no application to introduce new evidence, they don't want to enlighten the Full Bench about whether in fact it was in place or not. At the primary hearing they were silent. And now they simply assert that it wasn't, but no evidence.

PN271

And so it's not really for the Full Bench here to accept without evidence that it didn't apply. The best evidence you're taken to is, well, Mr Goldie would have known and he didn't say anything. As the Full Bench knows, the test about award coverage or agreement coverage is not Mr Goldie's knowledge. Now, aspersions, or the way the case was cast is that somehow because he saw his lawyers the lawyers have fixed this all up for him. But that's not the test. At Appeal Book 125 and 126 when this argument was put before Deputy President Hamilton, as I responded, and you will see at the bottom at transcript 1507:

PN272

My learned friend has made criticisms about Mr Goldie not knowing or thinking that he was covered by an award and not telling his solicitor, and then making a suggestion that the solicitors have cast the case for him, which is the clear inference.

PN273

It was never put. Mr Dunstan who is instructing me today gave evidence in that case on the extension of time. It wasn't properly put to him. And secondly, and more importantly for this Full Bench, it's not the test. And I go on:

PN274

If the test was a subjective one I would have asked Mr Goldie one question, "Are you covered by the award," and if he said yes I would have sat down.

PN275

Now, if I can return to Dazmany, and page 185, and this will bring me to the argument with the agreement. What Dazmany is saying is that this is an unfair dismissal application that Mr Goldie is making, and the context within which you interpret the statutory provisions is to give it the beneficial and construe that liberally. My learned friend, and he's right, says, well, you don't look at the certified agreement in itself as a stand alone document and give it an agreement simply out of fairness.

PN276

And you will see there at page 185, about three quarters of the way down the passage is quoted, Division 3 of Part VIA:

PN277

Intended to provide certain employees with a statutory remedy in the event of termination the beneficial legislation should be construed liberally.

PN278

And I bring that now, because where that comes into play later on is, once we deal with the construction point of the application parties bound to the certified agreement, as to wages and conditions of employment we should be looking at that in the liberal beneficial way that the Act is applying to unfair dismissal claims. Now, the reason, apart from putting the argument that - and I'll deal with the agreement now, clause 3 - is that the plain and ordinary meaning was not put below, and I cite the Hogden case, but I was also putting it in terms of, if this is the plain and ordinary meaning I just note that it was not apparent to counsel at first instance on either party, it wasn't apparent to Commissioner Simmonds, it wasn't apparent to Deputy President Hamilton, but if we carefully construct it now, it should be apparent in the ordinary meaning.

PN279

I submit that that is just not so, because coupled with that invitation the learned counsel says this when asked the question:

PN280

Well, why add the words after the union in clause 3 if we're simply at clause 3(ii) defining employee as a definition, is the end of it? Why add the words, and those employees engaged in the occupations, industries or callings?

PN281

Et cetera. And his answer was:

PN282

Well, they don't add a great deal to the operations of the clause.

PN283

End of point. Well, looking at this in the context that we should, one could also say that clause 3(ii) in reply doesn't add a great deal. I could equally make the same submission. If my interpretation and application of clause 3 is accepted, is it enough for me just to simply say also in answer to, well, what does clause 3(ii) do? It doesn't add a great deal. And my learned friend also then says, well, this is not unlike a private contract. Well, if it was a private contract the contra proferentem rule would say that if there's any ambiguity it should be interpreted in favour of the weaker party. And of course the weaker party and the benefit for which he now takes proceedings in the Federal Court, is his entitlement to redundancy. And clearly Mr Goldie, as the beneficiary of the terms of the agreement, is the weaker party.

PN284

Now, my learned friend also didn't draw your attention to - if these are to be defined terms, and I put it in the written submissions, you will see at page 4 in the footnotes, and the agreement in fact is littered with interchangeable uses of employer, capitalised, not capitalised. He hasn't of course touched the fact that the agreement then talks about the company. The company is not defined in clause 3 for very good reason, because it's not a definitions section. And in the written submissions filed on behalf of Envotec Pty Ltd they've referenced you to Pearce v Geddes correctly, the text on statutory interpretation, and the two cases cited therein, in support of their contention of this being definitions are cases dealing with statutes, and those statutes in those cases, and the two cases are at tab 5 and 6.

PN285

I don't need you to go to them, Simpson v Nominal Defendant, 13 ALR 318, and D C Mutton, 79 ALR 509. They're dealing with statutes with specific definition provisions. That's just fundamentally not what applications and parties bound provision is. It's not a definitions section. In that regard I refer you to the analysis by Commissioner Simmonds who, in his view, the clear and ordinary meaning was clause 3 clearly seeks to establish on whom it's binding. And then his analysis again - and one has to look at when we talk about after union and the brackets in clause 3(iii) it goes:

PN286

And those employees in the occupations, industries and/or callings covered by the award.

PN287

This is just a reference, it's just a reference to clause 1.6. It's a reference that you would then go to clause 1.6, as Deputy President Hamilton did, as Commissioner Simmonds did, and you look at it, and of course it includes envelope making. Now, one has to remember that the exclusion says award certified agreement or Australian AWAs in the statute. It's not just award. On my learned friend's case, is really this agreement, you are no better off than the award in terms of coverage. And that has to be the answer to his construction. If you're not covered by the award you won't be covered by this. Again, that is not what clause 3(iii) provides for. It's not what Deputy President Hamilton found, it's not what Commissioner Simmonds found, and as a jurisdictional question it's not the correct answer.

PN288

I have referred to my original submissions at Appeal Book 94 to 102. And again, once you accept that clause 3(iii) is as submitted and contended for by me before Deputy President Hamilton, and then held by him and Commissioner Simmonds, the second issue which is raised anew today is, well, does it regulate wages and conditions of employment? Firstly I adopt what your Honour put back to my learned friend of senior counsel, that it does. Secondly, wages is just payment for work done, it's remuneration. Again we should be looking at the word wages within the Act in the way that the Full Bench of this Commission has told us to construe these provisions as set out in Dazmany.

PN289

Now, they don't have to be - on page 186 of the decision of Dazmany it deals with regulation, and halfway down quoting and approving the South Australian Industrial Court there is this passage which it's said should be adopted:

PN290

In our view it's significant the general tenor of these definitions is not a total control of a subject matter but the bringing to bear of an influence upon it, the regulation of it in some manner, or the controlling of the working of it, although not necessarily in absolute terms.

PN291

That has to be the test to apply. It doesn't require absolute terms, it's just an influence, regulation in some manner. Now, if you go to the certified agreement the answer to that must be yes. Not only has the Full Bench been directed to clause 20. Payment of wages is dealt with in clause 16.

PN292

VICE PRESIDENT WATSON: 208 of the Appeal Book?

PN293

MR WHEELAHAN: Sorry, your Honour, yes. So there's regulation of the wages in clause 16. Clause 15, annual leave, there's regulations of the wages, the remuneration received in return for work by equating the entitlement to hours of work. Clause 19 deals with superannuation. Superannuation, as the Full Bench knows, there's a long list of authorities that superannuation is included as part of one's remuneration. Redundancy, again referenced to the wages, three weeks pay for each year of service. And this is an entitlement, as was put before Deputy President Hamilton, an enforceable entitlement upon which Mr Goldie is taking actions to have the company pay that entitlement to him. But again construed liberally, wages can include the three weeks pay for each year of service. That's something that he gets in return for his work, his 32 years of work.

PN294

The bonus scheme at clause 28, there's nothing in here to say why he should not be entitled to the bonus scheme, which again is remuneration. And indeed on termination he was paid four weeks notice - I'm sorry, he was paid four weeks on the day of termination, some time later received an additional week, but that was calculated on the 37 and a half hours, which hours of work is provided for in clause 11. The hours of the day were for 37.5 hours per week. Again that is, we're talking about remuneration. So if we return to whether - - -

PN295

SENIOR DEPUTY PRESIDENT MARSH: Mr Wheelahan, wasn't it the appellant's submission that Mr Goldie was paid, or his remuneration was subject to the contract set out in page 172?

PN296

MR WHEELAHAN: I think they were very careful, with respect, your Honour, to say, as to my understanding that was certainly - well, that's a contract that existed in 1999.

PN297

SENIOR DEPUTY PRESIDENT MARSH: No. But he was specifically asked, Mr Parry was specifically asked about 4.3 and 4.5, and 4.3 refers to annual reviews around the employee's date of commencement. Now, that doesn't sit well with clause 20, remuneration, of the agreement, that provides for wage increases at specified dates. And I think the Commissioner asked about 4.5 with respect to the hours being absorbed into the base salary.

PN298

MR WHEELAHAN: Your Honour, there's a couple of answers to that. One, the case cited of course of Christie at tab 6. You don't need to read it, but just Christie v Qantas Airways Limited. But of course over award payments doesn't affect the entitlement.

PN299

SENIOR DEPUTY PRESIDENT MARSH: Yes. I'm not talking about over awards, I'm talking about a provision in an agreement that says there will be wage increases on certain dates. Now, it must be a matter of fact whether those wage increases were paid on those dates, which is in conflict or potential conflict with the contract of employment which provides for wage increases on different dates, or reviews on different dates which may result in an increase in remuneration. Now, that's not over award payments. That's distinguishable from over award payments. The wage increases under the agreement are not over award payments, they're agreement provisions.

PN300

MR WHEELAHAN: Yes. There's a couple of difficulties of course, your Honour, in terms of evidence. That the only written contract is 1999 that applies to a different position. It doesn't deal with warehouse manager. We don't know - there's a proposal to demote him, the position is described as a demotion when it's put to him by counsel for Envotec Pty Ltd. We don't have a contract for the new demoted position. There's talk of proposing to reduce it to $60,000. Now, this is to deal with the substance of the position.

PN301

SENIOR DEPUTY PRESIDENT MARSH: Well, can I put it another way. Is there any evidence that Mr Goldie was paid the remuneration in line with the remuneration provisions set out in clause 20 of the certified agreement?

PN302

MR WHEELAHAN: Standing on my feet I don't know, your Honour, because of course this was not a contested issue down below.

PN303

SENIOR DEPUTY PRESIDENT MARSH: No. Well, you're putting a lot of emphasis on it in the appeal proceedings. I'd just like to know if there is evidence, because you say it's evidence about the contract, let's go to the agreement.

PN304

MR WHEELAHAN: Well, if we just go to - - -

PN305

SENIOR DEPUTY PRESIDENT MARSH: Did he achieve his - was that clause 20 remuneration applied over the years from 2004 and 2005?

PN306

MR WHEELAHAN: If we put aside an old 1999 agreement for a different
job - - -

PN307

SENIOR DEPUTY PRESIDENT MARSH: I'm not saying put it aside, I'm saying for the purposes of answering my question.

PN308

MR WHEELAHAN: Yes, that's what I meant. Well, then we're left with the certified agreement. And was he paid pursuant to these rates? I can't - - -

PN309

SENIOR DEPUTY PRESIDENT MARSH: Is there any evidence to that effect?

PN310

MR WHEELAHAN: I can't answer that on my feet.

PN311

SENIOR DEPUTY PRESIDENT MARSH: Okay.

PN312

MR WHEELAHAN: But let me say that that is one of the number of clauses that I rely on to constitute wages within the meaning of the exclusion.

PN313

SENIOR DEPUTY PRESIDENT MARSH: Yes, hence my question.

PN314

VICE PRESIDENT WATSON: While you're on the agreement, so the contract of employment, contract of service, I note the hours of work clause says that the hours of work should be the employer's normal business hours. So that may mean that there's no great significance attaching to the payment out being on the basis of 37½ hours. It might be something that is common to the certified agreement and the contract of service.

PN315

MR WHEELAHAN: Well, that would suggest again reliance on the certified agreement. And one must recall there are documents attached to Mr Mones' statement, contracts saying, well, your annual leave and your sick leave will be as per the award or agreement. You will see clause 11 in this contract, while we're looking at it, at Appeal Book 174, says:

PN316

Redundancy. If you're terminated by reason of redundancy -

PN317

Et cetera:

PN318

- they shall be provided with notice and be paid severance payments in accordance with Envotec Pty Ltd group policy.

PN319

And the group policy - I'm not sure if this is in the Appeal Book.

PN320

VICE PRESIDENT WATSON: If it's not in the Appeal Book it wouldn't have been in evidence below.

PN321

MR WHEELAHAN: Yes. I think it might be the policy. The submission is that the policy then references to awards and workplace agreements and site agreements.

PN322

VICE PRESIDENT WATSON: Well, assuming that was the case, what would be the significance of that?

PN323

MR WHEELAHAN: Well, it answers, your Honour, when you put the reference to hours, you're putting to me that the hours may or may not be significant because it just says ordinary business hours. Do you go to the certified agreement or don't you? Here is an express provision in this contract referring both parties to the policy to which then refers to their certified agreement, award.

PN324

COMMISSIONER TOLLEY: In any event, Mr Wheelahan, the term ordinary business hours is a fairly wide sweeping broom from my experience of the printing industry, which is quite considerable I might add.

PN325

MR WHEELAHAN: One has to remember, just going back to clause 3, that if the Full Bench accepts the employer's argument, they have to accept the submission by Mr Parry that they will deal with clause 3(iii), the words after the union not adding a great deal to the operation of the clause. In my submission it really is not for - not a satisfactory result for this Full Bench to accept that submission and just in effect ignore clause 3(iii) insofar as it has been held to extend to cover Mr Goldie.

PN326

You were also then taken in the context of the certified agreement to clause 8.1, that it's to be read with the award. But in oral submissions what wasn't amplified is the rest of that provision, which says to the extent of any inconsistency, or words to that effect. The certified agreement - I'll just find the clause. Clause 8.1:

PN327

The agreement is read and interpreted wholly with the award. To the extent of any inconsistency this agreement will take precedence.

PN328

That has to be an answer, complete answer to the provisions of clause 3(iii), because again, as my learned friend submits, despite the exclusionary provision referring to defining award coverage as being defined by an award, certified agreement or Australian Workplace Agreement, on the case that's submitted by Envotec Pty Ltd, if you're not covered by the award you're not covered by the agreement. That is the clear inconsistency that is before the Full Bench, and the agreement should take precedence.

PN329

VICE PRESIDENT WATSON: That involves accepting your submissions as to the interpretation of clause 3.

PN330

MR WHEELAHAN: It is, your Honour, because the interpretation put by the respondents, it is narrow and it's contorted, and it requires a lot of thought to write new words into it. Clause 3, where we then talk about, and those employees, you then have to reference back to clause 2, and it's just quite complicated. It's not the ordinary meaning when one reads clause 3, as Deputy President Hamilton did and as Commissioner Simmonds did.

PN331

Again, as noted in the primary case before Deputy President Hamilton, and today by learned senior counsel, is that clause 3(iii) might contain ambiguity on how you even deal with how it's to be covered. And the answer is again put as clause 3(ii). But it becomes somewhat circular if you accept my learned friend's argument, it leaves it with not much to do. I have nothing further to add to what I've put in writing and filed with the Commission.

PN332

VICE PRESIDENT WATSON: I neglected to mark your written submissions.

EXHIBIT #W1 OUTLINE OF RESPONDENT'S SUBMISSIONS

PN333

MR WHEELAHAN: Just one point. In W1 the reference at paragraph 19 to the case, the reference that's apparently been remedied by a fax to the Commission.

PN334

VICE PRESIDENT WATSON: Yes.

PN335

MR WHEELAHAN: The print number and date of the Electrolux decision was - that's been remedied.

PN336

VICE PRESIDENT WATSON: Yes, we have received that amendment. Thank you, Mr Wheelahan. We propose to adjourn until 2.15.

<LUNCHEON ADJOURNMENT [12.57PM]
<RESUMED [2.18PM]

PN337

VICE PRESIDENT WATSON: Mr Parry.

PN338

MR PARRY: If the Commission pleases, in reply firstly it was said that we relied on the job title of Mr Goldie and we say in no sense can we rely purely on his title. Indeed, there was evidence of Mr Mones at appeal book page 198 about the responsibilities of a warehouse manager at paragraph 45, that was never contested, that dealt with the broad range of duties of Mr Goldie. That was evidence that was current at the time of his termination. He was not demoted. It's been asserted from the bar table today that this constituted a demotion.

PN339

There was no evidence or finding to that effect by the Deputy President. The witness himself did not describe it as a demotion when asked at transcript paragraphs 461 to 465. He never lost any benefits. The share transaction my learned friend raises never took place during the time of his employment and is now the subject of the litigation that he has raised. The quotes and extracts that I took the Commission to in our submissions about the primary functions of this job were all current as at the time of termination, so we say Commissioner Simmonds with respect to this matter got it right in respect of another manager at Envotec and Commissioner Simmonds took the right approach. If that approach is taken here and the primary function or main role or however designated is taken of this work of Mr Goldie, it would be found to be outside L8 or L5 if appropriate.

PN340

VICE PRESIDENT WATSON: Which decision of Commissioner Simmonds was that?

PN341

MR PARRY: I am sorry, the one that we're appealing on the Thursday. We say he got it right in one aspect, that is the approach he took to the appeal on Thursday will cover and I understand it's the same Full Bench will cover much the same argument with regard to the construction of the agreement, but Commissioner Simmonds found that another manager at Envotec did not come within the classifications of the award, so we don't have to deal with all this argument on Thursday. We only have to deal with the other part of the argument, the construction of the agreement which will be essentially similar.

PN342

All I am submitting is that Commissioner Simmonds got it right on the second aspect, not on the first. It's said with regard to the translation that there hasn't been evidence called of that. Well, we say there is evidence from which it's fairly clear that there hasn't been a translation. There doesn't need to be specific evidence called about that. It's fairly clear, we say. Mr Goldie sitting in the Commission now would no doubt be able to assist my learned friend if we weren't confident in being able to draw that inference. It was asserted by the applicant when he made the application to the Commission that the jurisdiction that he relied on arose from being within an award classification, so it was the assertion of the applicants that led this position to be taken.

PN343

There is with regard to statutory construction some again reference to Dazmany and some argument about constructing something for a week, a party will - Mr Goldie is on any view not a party to the certified agreement, so any principles there don't apply. In any event, we don't say that one adopts those sort of approaches in the construction of an industrial instrument in any event.

PN344

VICE PRESIDENT WATSON: Is there a different principle for an award compared to a certified agreement, especially in relation to an ambiguity?

PN345

MR PARRY: Well, not a different test. Indeed, I took the Commission to what French J said and I would say that's appropriate for our purposes. I'm not sure that when construes an award, one construes it in favour of the employer or the union or takes a particular approach either way. I don't think one comes to this construction exercise with views one way or the other. I think the principle of construction, about generous construction is one shouldn't be particularly technical and one should give it a meaning that as fairly as it bears reflects the objective intentions of the parties.

PN346

VICE PRESIDENT WATSON: An award might be made by a tribunal member in which case recourse to extrinsic material in the form of a decision might be permissible in the case of an ambiguity and I had in mind authorities in relation to ambiguities for agreements whereby one might look to determine objectively the mutual intention of the parties, not by reference to evidence they might give as to a subjective intention, but their intentions as objectively determined by the conduct and behaviour in the circumstances and the context.

PN347

MR PARRY: I can't assist the Commission with any particular authorities. There's a number of authorities on interpretation of agreements. There's nothing that I've seen that suggests that one comes to any of them with a particular bent either way. We're not, of course, assisted with regard to agreements by a decision of the Commission as there might be with an award. Indeed, the principles of construction of private contracts seems more apposite, but apart from that, I can't give any authority apart from what I've taken the Commission to already.

PN348

VICE PRESIDENT WATSON: I think the High Court's decision in Codelfa has been relied on in this Commission essentially for the proposition you advance.

PN349

MR PARRY: Yes, yes, and it remains good law which takes me to the operation of clause 3 and my learned friend raises this proposition as in his submissions that somehow the word employee appears throughout the agreement, sometimes with a capital E and sometimes with a small E. Well, we say that that in no sense in any part of the agreement are those terms used to differentiate themselves between each other. That is, whether it's a capital E, whether it's a small E, whether it's plural or not, it's all the same throughout the agreement.

PN350

There's no sense in any part of the agreement that the terms are used to differentiate and on that basis, it's reasonable we say to treat the concept of employees throughout the agreement as the drafters of the agreement attempted to define it which they did in clause 3. Now, that leads to we say 3.2 is pretty clearly structured to give a definition of employees. What then of clause 3? Well, the words that are added in there at the end of 3.3 on one view, as I submitted earlier, seem to bear a similar or have a similar effect to 1.8.7 when read with 3.2. That is, as in the award you have an industry and to be covered by the award, you have to fall within the classifications.

PN351

In my submission, the way the agreement clause 3 is structured is the same, that is you have an industry and you have the coverage of the award within that industry, so alternatively the words are repetitive and unnecessary and it wouldn't be the first time in an industrial instrument that there's been repetitive and unnecessary words. Ultimately then the Commission would look at the consequences of either construction and I've taken the Commission through those. I'm not going to repeat them. We just say the construction advanced by my learned friend really is inconsistent with the terms of the instrument and would lead to absurd consequences, far beyond what we say could be the objective intentions of the union and the employers.

PN352

VICE PRESIDENT WATSON: Do you accept that regardless of which interpretation is adopted, it does involve considering certain words of no real effect? If your interpretation is adopted, then the words after union in paragraph 3 don't seem to have any practical effect and your submission is if Mr Wheelahan's interpretation is adopted, the words in paragraph 2 are not given effect to.

PN353

MR PARRY: Well, in a curious way, I'm not prepared to go quite as far as that, your Honour, for this reason only, that it's as I said, a similar structure to the award, that is the award says here is an industry, here are classifications and you are only covered by this award if you fall within the classifications in substance, so therefore one could say, well, the industry doesn't add anything to the award. One could say why have the industry within there and I assume that the industry is placed in there to give a context and to give meaning to the classifications.

PN354

VICE PRESIDENT WATSON: Well, it might be an employer operates in multiple industries and has store people involved in a variety of different industries, but some of those industries are not printing or graphic arts industries.

PN355

MR PARRY: Yes, so here you have 2 which says you're in a classification. Now, that doesn't go to the coverage provisions of the award. Two and number 3 really says those classifications have to be in the industries, the occupations, industries or callings, so, really, 3 gives a context and meaning to the classifications of the Graphic Arts General Award. For example, if we go back one step, the drafters of this agreement could have said:

PN356

Whose work is covered by the Graphic Arts General Award 2000.

PN357

Now, that would have been a construction that would have been easily supportable simply by reference to 1.8.6 and 1.8.7, just simply say it's covered by the award. They could have done that, but what they've done is not used any of the devices in 1.8.1. They've used another device, that is you go straight to the classifications, so therefore if one was a literalist, one would simply turn to clause 5.1 and start looking through these classifications and turn to appendix F and then be forced to try to work out what it all means, which is still a complication, but what 3 adds in is you put those classifications in the context of the occupations, industries of callings in the printing industry, so it gives meaning to the classifications. It's an alternative way of drafting up the agreement and could have been adopted by simply saying this work is covered by the award as per 1.8. It's a clearer way, in some ways it's not a bad way of doing it.

PN358

VICE PRESIDENT WATSON: It would have been more logical to put the references to the industries and callings in paragraph 2, wouldn't it?

PN359

MR PARRY: What you could have done, what would have been more logical, is to have said the employees whose work is covered by the award, full stop, because that would have led you to clause 1.8 which would have linked back to people whose work is in the classifications who perform work in the industry or industrial pursuits mentioned. That's an alternative way of doing a coverage, but what they've done is say you have to be in a classification and that classification has to be in the industry. That's in substance what they've done.

PN360

My learned friend is showing me the affidavits that went in at the time of the certification of the agreement. They're not before the Commission, but they are certainly not consistent with a reading that reads more broadly and I haven't seen them before. It's simply a statutory declaration as to who the agreement applies to made at the time of lodging and total number of employees and who is covered by the agreement. If that's of assistance to the Commission, I'll obtain a copy of it and hand it up.

PN361

MR WHEELAHAN: Your Honour, I object to that course. I haven't seen these affidavits. I only heard of them five seconds ago.

PN362

VICE PRESIDENT WATSON: It's a matter for you, Mr Parry, if you wish to rely on it, if you wish to make an application, it will need to be dealt with.

PN363

MR PARRY: Well, I make that application. I make the application to tender the material that accompanied the certification of the agreement being the statutory declaration of the AMWU and also the employer, a Mr Stevenson, who both filed statutory declarations at the time.

PN364

MR WHEELAHAN: Your Honours, if the extrinsic material is put in because of any ambiguity as to industry as the contention just argued, there is no ambiguity about the industry because of subclause 3.1. There's no issue about where the store person or the warehouse applies. It says Australian Envelopes situated at 282/294 Ferntree Gully Road that manufacture envelopes, so, with respect, my learned friend needs to put a case as to why this Full Bench needs to go beyond the agreement when looking at extrinsic material.

PN365

VICE PRESIDENT WATSON: Mr Parry.

PN366

MR PARRY: Yes, perhaps if I could on this point about extrinsic material and the requirement for ambiguity, the Commission will have the decision of French J in City of Waneroo and paragraph 56 of that, paragraph 56 says and I quote:

PN367

The attribution of purpose by reference to context in the wide sense does not await the discovery of an ambiguity in the text. The purpose or object underlying an Act is often determined by consideration of the statutory context.

PN368

And there's the Bankstown Football Club case:

PN369

Nor does discovery of an ambiguity precede resort to extrinsic material under section 15AB.

PN370

And there's then reference to Mills v Meeking where his Honour Dawson J said and I quote:

PN371

The approach required by section 35 needs no ambiguity or inconsistency. It allows the court to consider the purposes of an Act in determining whether there is more than one possible construction. Reference to the purposes may reveal if the draftsman had inadvertently overlooked something which he would have dealt with had his attention been drawn to it and if it is possible as a matter of construction to repair the defect, then this must be done.

PN372

And then it goes on over the page, there's reference to contextual words, not interpreting words in a vacuum and the quotes that I took the Commission to this morning about the construction of such instruments, so there is no necessity that we demonstrate ambiguity. We're here ultimately to give the Commission what material we can to assist them in forming a view as to what the parties meant by clause 3 of the agreement and the material we have adverted to is material that this Commission is well aware is handed up at the time of certification and demonstrates the coverage of the agreement.

PN373

Now, in that context, it says the agreement applies to - 116, this is the evidence, the tenor of it, the statutory declaration says that the agreement covers 116 employees, Mr Mones said the company employs around 190, so the point is a simple one. This was not meant to be an agreement that was covering all employees in the envelope industry. It was directed at a smaller category of employees and that's what both the union and the employer swore to the Commission was the operation of the agreement when they put it before the Commission for certification. Now, it's a matter for the Commission whether it takes that evidence.

PN374

VICE PRESIDENT WATSON: Do you wish to respond further to that, Mr Wheelahan?

PN375

MR WHEELAHAN: Yes. In the folder of authorities provided on behalf of the respondent, Michael Goldie, tab 5, Metropolitan Fire and Emergency Services Board v United Firefighters' Union, at page 4 of 18 - your Honour referred my learned friend before to Codelfa and the passage of Mason J from Codelfa is extracted there:

PN376

The true rule is that evidence of surrounding circumstances to assist in the interpretation of the contract, if the language is ambiguous or susceptible of more than one meaning, it's not admissible to contradict the language of the contract when it has a plain meaning.

PN377

Now, the Full Bench of course will know that submissions from both parties here is here is the plain meaning of the agreement. That's the primary contention of both parties. It's only in the alternative that learned senior counsel is putting now, well, if there's ambiguity, here's a statutory declaration that my learned junior counsel has now handed to me which I want to rely on.

PN378

VICE PRESIDENT WATSON: The two plain meanings are different.

PN379

MR WHEELAHAN: Pardon?

PN380

VICE PRESIDENT WATSON: The two plain meanings are different.

PN381

MR WHEELAHAN: Well, the plain meaning I contend for is the plain meaning. Secondly, this is a document which submissions are now being made on. It might be said that it's documentary hearsay. There's no opportunity on behalf of Mr Goldie to cross-examine any of the people who swore these statutory declarations. The weight to be given to it is no more than a statutory declaration in the process of certification and shouldn't be given weight in submissions as to proof of the matters contained therein at the final five minutes of a Full Bench appeal. If it's to be accepted into evidence, it should be on that limited basis, but otherwise I refer to the passages in Codelfa extracted in the decision behind tab 5.

PN382

VICE PRESIDENT WATSON: We will allow the tender of the statutory declarations. The weight to be given to it is a different matter and, Mr Wheelahan, given the lateness of the tender, you'll have an opportunity to make submissions on the document in an appropriate way.

PN383

MR WHEELAHAN: Not today. I will need to get instructions.

PN384

VICE PRESIDENT WATSON: Yes. If you wish to put - if you're unable to do it today, then we can look at an alternative method.

PN385

MR WHEELAHAN: If the Commission pleases.

PN386

MR PARRY: I have one copy, your Honour.

PN387

VICE PRESIDENT WATSON: Is it a single document or more than one document?

PN388

MR PARRY: It's two documents stapled together. One is a statutory declaration of Jim Reid of the AMWU deposing as to the steps taken, the number of employees who voted and a statutory declaration of Geoffrey Stevenson, again to a similar effect and the point is a fairly simple one that we draw from that material. I will obtain copies of that and hand it up.

PN389

VICE PRESIDENT WATSON: We will mark the two statutory declarations.

EXHIBIT #P3 STATUTORY DECLARATIONS OF JIM REID AND GEOFFREY STEVENSON

PN390

MR PARRY: The point for my learned friend's benefit of the submission is that the statutory declarations speak of covering 116 employees. Mr Mones says the company had about 190. That's the point, that's about the only point that I really take from it, so, your Honour, I was just dealing with your proposition to me that somehow the words in 3 don't add anything. Well, in my submission I don't accept that. I think that one has to read 2 with 3. The use of the word classifications in 2 requires some context and the words in 3 give it that context, so I don't accept that those words don't add anything. In our submission, they do add something.

PN391

VICE PRESIDENT WATSON: So in your submission the only interpretation which involves words being otiose is Mr Wheelahan's submissions because it fails to give effect to the limitation in paragraph 2?

PN392

MR PARRY: Well, if Mr Wheelahan is correct, subparagraph 2 has no meaning at all, it just simply has no meaning. On my submission, the reference to classifications in 2 and the reference to the industry in 3 can logically be read together and they can give each other meaning and that's a preferable construction than the construction which simply reads out 3.2. Those are our submissions with regard to the construction in 3. There's the secondary issue that my learned friend dealt with, the regulation of wages and as I understood the argument that was advanced, somehow in that the agreement deals with matters such as leave, redundancy and superannuation, somehow that demonstrates a regulation of wages.

PN393

I am not quite sure that that's the argument, but that seemed to be the argument that was put and we say with regard to regulation, our position is that the Full Bench authority in Stevenson v Moonee Valley Racing Club as we've set out in paragraph 27 of our submissions is the most recent authority with regard to what regulate means and I don't repeat that. We say that's a proper approach firstly. Secondly, it is stretching things to think that when the legislature referred to wages in 170CBA(4), it is stretching it to say that when the legislature chooses the word wages, it means to encompass other aspects which relate to or are connected in either a direct way or an indirect way with wages, such as superannuation. This is an Act which contains references to wages in a number of places and superannuation.

PN394

For example 89A in the original legislative scheme and to roll them all in together is certainly in our submission a long bow to draw with regard to statutory interpretation. In our submission, and we've made it earlier, this agreement does not regulate wages, it does not regulate salaries. It appears that what regulates salary is a contract almost certainly. That's a legal question. It is probably, we submit, a contract in existence at the time of termination which was probably the
1999 contract.

PN395

Mr Goldie asserts that in his Federal Court proceedings. My learned friend has referred to the Federal Court proceedings.

PN396

MR WHEELAHAN: I object to that. The proceedings haven't been tendered, perhaps they should because to be fair there are alternative submissions put and if we're going to be putting to the Full Bench parts of - and this is the second occasion that the proceeding in the Federal Court - I have no objection to that document being tendered in whole, the statement of claim and the application.

PN397

VICE PRESIDENT WATSON:: Is there any weight at all to be given to what might be alleged in a Federal Court proceeding?

PN398

MR PARRY: Only this, and this is the only reason I have the documents here. I'm happy to tender the whole document but my learned friend made a submission that there was no contract for the new demoted position. To assert in these proceedings that there was no contract for the new demoted position is at odds with what he has pleaded in the Federal Court which relies on the existence of a contract at termination. So the importance of the Federal Court proceeding, my learned friend having signed a pleading asserting that it's true and correct, asserts to the Federal Court and relies on the existence of a contract at termination being the 1999 contract. To then make a submission today that there's no contract for the new demoted position really doesn't sit with that at all and so my reliance on the Federal Court proceedings is only to say the public and professed legal position of Mr Goldie is that the 1999 contract is the relevant one.

PN399

VICE PRESIDENT WATSON:: You've made an assertion about the contents, are you seeking to tender the document?

PN400

MR PARRY: I have copies of it to hand up to the Full Bench. I don't want to be taking extracts out of it, rather the whole document.

PN401

VICE PRESIDENT WATSON:: Is the tender of the entirety of the document objected to, Mr Wheelahan?

PN402

MR WHEELAHAN: Certainly not, your Honour, and I might just say while I'm on my feet, to correct my learned friend, that the contract as you will see in there is put as an alternative argument and that word "alternative" has been left out. Reliance upon the primary case, as you will see in this pleading, is a case to claim the redundancy payment which is said to be due under the certified agreement, and in the alternative there's then arguments to do with the contract. It's an important distinction.

PN403

MR PARRY: It's an important distinction in some respects, but not in the respect that there's any other contract alleged at all. The only contract that's alleged to be in existence at the time of termination is this contract, the contract in 1999. All we take from that, and the Commission is getting handed up documents which are not adding a heck of a lot to the things, but at the end of the day to stand up here today and say there's no contract for the new demoted position, doesn't sit with the assertion in another tribunal, another court, that there is a contract and it's the contract that appears to be the one that's relevant so I tender that document. I do point out that it's going to be strongly contested and defended and I don't think by handing it up it should be taken that we accept any other parts of it, but we simply draw it up to counter my learned friend attempting to move his position now that somehow there was no contract.

PN404

MR WHEELAHAN: If my learned friend will just let me answer that one more time, I don't want it put on the record that it's only that contract. As one will see in this complicated pleading at paragraph 19 in the alternative the employment agreement did not apply, so as a pleading does, it covers off every situation and this is not a one-way case of saying, well, it matters that a pleading has been signed to by counsel that it simply relies on that contract. It relies on a number of things and that has to be fairly put, in my submission.

EXHIBIT #P4 APPLICATION AND STATEMENT OF CLAIM PROCEEDINGS BETWEEN MR GOLDIE AND OTHERS AND BETWEEN ENVOTEC AND OTHERS

PN405

MR PARRY: Marsh SDP asked my learned friend whether there was any evidence about payment of remuneration to Mr Goldie under clause 20 of the agreement and firstly, there is no evidence that Mr Goldie was ever paid any remuneration under that provision in clause 20. There is evidence about his payments and they appear in Mr Mones' statement in appeal book 196. Appeal book, page 196 has at paragraph 31 a contract for service which is the one that appears in contention in 1999. Then the Commission might note he received an increase in the next paragraph, went to a salary of 90,000 per year. That is in the attachment 26 on page 342. Then there's further increase in paragraph 35 and paragraph 35 refers to increases to 100,000 and the Commission will see that followed a salary review which is at NM29 on page 346 on 1 April, effective
1 April and then there is no evidence of increases until - and this is more pertinent perhaps - on appeal book page 355 where there is a note to Mr Goldie again in April:

PN406

We've conducted your salary review and confirm your new salary is 112,860 per annum. This will be reflected in your next pay.

PN407

That was the salary he was on when he was terminated. Firstly, I think that can be compared with the industrial agreement which had in clause 20 that there would be increases each September and it appears the increases were via salary reviews in April and not via any mechanism in September.

PN408

Finally, there is some - I think my learned friend referred to the agreement - I'm sorry, this contract, whether it applied or not, this contract of 1999 referring to policies and he made the assertion that they referred to - there's evidence about them referring to awards. We don't believe, and we've had a look, that those policies were in evidence before the Commission so there wasn't any evidence with regard to that matter.

PN409

Unless I can be of any further assistance to the Commission, those are the submissions in reply. If the Commission pleases.

PN410

VICE PRESIDENT WATSON:: Thanks, Mr Parry. Mr Wheelahan, there were two documents tendered in reply. What do you propose as to - - -

PN411

MR WHEELAHAN: A short time to just provide written submissions if necessary in reply to those, just complying to those issues as put on transcript, and secondly, I seek to tender - I'll have to make copies for my learned friend - the policy manual that I referred to, which I was reading from when I said that it makes reference to federal or state awards, site or workplace agreements. I seek to tender that after I make some copies.

PN412

MR PARRY: I object to that, I suppose. I haven't again seen the document. I don't know what it is, whether it's relevant or not. I can't add much, but I don't know anything about it.

PN413

VICE PRESIDENT WATSON:: It purports to be the policy referred to in the contract.

PN414

MR WHEELAHAN: Your Honour, given that the pleadings are now tendered and as my learned friend rightly pointed out, counsel has signed it as sufficient material on the facts to support the pleadings, those pleadings identify this in any event and its effect so I withdraw the application to tender.

PN415

VICE PRESIDENT WATSON:: As to timing for a written submission on the documents that have been tendered?

PN416

MR WHEELAHAN: Two weeks.

PN417

VICE PRESIDENT WATSON:: Why would that be necessary?

PN418

MR WHEELAHAN: Friday, 4 pm would be sufficient, your Honour, this week. If your Honour wants to propose another time - if your Honour is proposing I do it very quickly, I can do that also.

PN419

VICE PRESIDENT WATSON:: I think 4 pm on Friday would be sufficient for our purposes. If there's nothing further, I thank counsel for their submissions. We will reserve our decision and adjourn to a date to be fixed.

<ADJOURNED INDEFINITELY [3.00PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #P1 OUTLINE OF APPELLANT'S SUBMISSIONS PN21
EXHIBIT #P2 AMENDED NOTICE OF APPEAL PN21
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EXHIBIT #P4 APPLICATION AND STATEMENT OF CLAIM PROCEEDINGS BETWEEN MR GOLDIE AND OTHERS AND BETWEEN ENVOTEC AND OTHERS PN404