AG2005/6021, Transcript of Proceedings [2006] AIRCTrans 34 (5 January 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 13831-1

SENIOR DEPUTY PRESIDENT O’CALLAGHAN

AG2005/6021

APPLICATION BY NORTHROP GRUMMAN SPACE TECHNOLOGY INTERNATIONAL INC.
s.170MH - Application to terminate agreement (public interest)
(AG2005/6021)

ALICE SPRINGS

11.43AM, MONDAY, 19 DECEMBER 2005

Continued from 21/11/2005

PN290

THE SENIOR DEPUTY PRESIDENT: Good morning. Perhaps I should start by advising that I’ve received from both parties in this matter a number of submissions. It might be best that I mark those just so we all know what we have. The material received from the respondent in the matter I'll mark as R1 noting that it’s an outline of submissions. The material which I think I have and I know I’ve read from the applicant in the matter I'll mark as NG2 noting that it’s similarly an outline of submissions.

EXHIBIT #R1 RESPONDENT’S OUTLINE OF SUBMISSIONS
EXHIBIT #NG2 APPLICANT’S OUTLINE OF SUBMISSIONS

PN291

THE SENIOR DEPUTY PRESIDENT: Mr Snaden, it does occur to me that it might be more logical to suggest that you would go first this morning, but I’m very much in your hands in that regard.

PN292

MR SNADEN: I agree, your Honour, and if my learned friend has no objection I had intended to go first.

PN293

THE SENIOR DEPUTY PRESIDENT: You can take it as a given that I’ve read that material.

PN294

MR SNADEN: Thank you, your Honour. You might recall, your Honour, last time we were before you I raised two matters that I said were matters of public interest by reference to which it would be open to this Commission to refuse the application to terminate the certified agreement. Those two matters were firstly that if the agreement is terminated it will lead to the Australian employees of the applicant being discriminated against and secondly I said that it would be contrary to the public interest to terminate this agreement because the applicant had not bargained in good faith.

PN295

The purpose then of today is to ascertain whether or not those two matters that I identified actually are or are potentially matters of public interest by reference to which this Commission can refuse to grant the application. In a sense, your Honour, today is a preliminary and almost hypothetical debate about what the proper characterisation of those two issues is. We are not here, as I understand it, to determine whether or not the employees will actually be discriminated against, nor are we here to determine whether or not the applicant actually has bargained in good faith. Those of course are matters that will require evidence and analysis of a much larger volume of case law.

PN296

I just raise this point. I raise this now, your Honour, because you will seen from my learned friend’s submissions a large proportion of what he says in those submissions go to what I might call substantive rather than hypothetical issues. He talks about whether or not discrimination will actually occur and a lot about whether or not the applicant has bargained in good faith. Today’s hearing is, as I say, more a hypothetical debate. It’s more akin to a summary judgement application and it proceeds on the assumption that the allegations we’ve raised about discrimination and bargaining in good faith will be made out on the evidence at a later point.

PN297

We are today debating whether or not those are legitimately considered to be matters of public interest.

PN298

THE SENIOR DEPUTY PRESIDENT: Mr Snaden, this type of - your words of wisdom to me this morning, can I indicate to you I would be interested in hearing from both parties in the matter in relation to the potential impact of the changes to the workplace relations legislation which I’m advised will come into effect in March next year. It seems to me that those changes could conceivably impact on the preconditions that will then apply in relation to termination of certified agreements. I simply raise it with you and invite you to comment on it.

PN299

MR SNADEN: Thank you, your Honour.

PN300

THE SENIOR DEPUTY PRESIDENT: You needn’t do so now, but as long as you do so.

PN301

MR SNADEN: I'll choose to do so now. I won’t pretend to be intimately familiar with the new changes, I don’t think anybody is, but my understanding is that rather than having to make an application to this Commission to terminate the certified agreement it will be open to employers to do so on notice, I think it’s 90 days notice. They will be able to give 90 days notice. I think there is, though, still a public interest test. It is still open to employees or unions to raise an objection to certified agreements being terminated on the basis that their termination will offend the public interest. I don’t have the bill with me today.

PN302

THE SENIOR DEPUTY PRESIDENT: If you’re not going to be equipped to respond to that question today it may be appropriate, depending on what
Mr Hankin says, for me to give you the opportunity to do so by way of a brief written response to that question. It does appear to me to be potentially a very relevant question. It would be very unlikely, I should say, that you’ll get a decision from me before Christmas and that would mean that the earliest you could reasonably expect a decision is some time in mid January. Given the legislation’s proposed to come into effect at some stage in March it does appear to me that that might be a relevant factor to be taken into account, but I’m happy to leave it there.

PN303

MR SNADEN: Your Honour’s not suggesting that the new bill would actually apply to this certified agreement?

PN304

THE SENIOR DEPUTY PRESIDENT: I’m just asking the question as to what alterations will apply in relation to termination of an agreement subsequent to the enactment of the new bill.

PN305

MR SNADEN: There are savings provisions in the new bill.

PN306

THE SENIOR DEPUTY PRESIDENT: There are. I’m just raising a question at this stage.

PN307

MR SNADEN: Yes, I see. Well, those savings provision include the continued application of 170MH to existing certified agreements. In fact, I think the majority of part VIB of the Act will continue to apply to existing certified agreements so the test wouldn’t change.

PN308

THE SENIOR DEPUTY PRESIDENT: I see. You might want to double check that.

PN309

MR SNADEN: I will.

PN310

THE SENIOR DEPUTY PRESIDENT: I’m not saying you’re wrong.

PN311

MR SNADEN: No, I’m fairly confident on that point. There are savings provisions, 170LX, 170MH and I think even 170MB are all part of the provisions that will continue to apply even after the bill becomes law. Apply, that is, to certified agreements that currently exist. Your Honour, I'll move to discussion about what is the public interest. Obviously that is a key component of what today’s case is about. There are a number of cases referred to in both of the submissions about what is the public interest and without quoting out of context I think it’s fair to say that none of them give a definitive answer to that question of what is the public interest.

PN312

THE SENIOR DEPUTY PRESIDENT: I thought Munro J did. He described it as a work of art.

PN313

MR SNADEN: Sorry?

PN314

THE SENIOR DEPUTY PRESIDENT: He described it as a work of art.

PN315

MR SNADEN: Yes, that’s right and by that I think what his Honour was saying was that there are no finite list of considerations that the Commission could point to and say they define or are the boundaries of the public interest. It is something that needs to be looked at on a case by case basis and there may be any number of variables that define it. What is clear though from Munro J’s reasoning in Joy Manufacturing and also the Full Bench’s reasoning in the Kellogg Brown and Root case is that the private interests of employees or are or might be affected by an application under 170MH are not in and of themselves relevant.

PN316

Only where they intercept or overlap with the public interest, only where they have some element of community impact will they be seen to be relevant to the case of the 170MH and as I think I’ve said when we were last before you both of the issues that we have identified, the discrimination issue and the bargaining in good faith issue are, we say, matters that affect not only the employees’ private interests, but also the public interest. I intend, subject to anything that you might say, your Honour, to deal with those two issues separately and I'll begin with the discrimination ground. We say that if this certified agreement is terminated we know what the company will do, they’ve told us.

PN317

They’re going to reduce the wages payable to their Australian employees by between 17 and 20 per cent and we say that if they do that the conditions of employment that apply to the Australian employees relative to the American employees will mean that the Australian employees are being discriminated against on the basis of their race, national extraction, social origins or nationality and we say that assuming that that is the- - -

PN318

THE SENIOR DEPUTY PRESIDENT: How do you know that, Mr Snaden?

PN319

MR SNADEN: How do I know that they’re being - well, we know, the employees know from discussions that they have - they work with the American employees, they know that the American employees, for example, they’ve recently received a pay rise. They know that they get a number of allowances that the Australian employees don’t get. We don’t have what I might call documentary or hard evidence that there is a disparity between the Australians and the Americans. We’ve asked for that, it’s been promised to us, but we haven’t got it and in due course we will be either calling that evidence through witnesses or through documents obtained on summons.

PN320

At this point it is in the nature of an allegation which we can back up by instruction that we’ve had from the American employees. So the argument, your Honour, is that if that occurs the agreement is terminated and the wages of the Australian employees are reduced then you will have a situation that is akin to the Australian employees being discriminated on the basis that I’ve identified. Now, we say that that is self evidently a matter of public interest for a number of reasons. You might recall last time I made reference to the objects of the Act, specifically paragraph J section 3 of the Workplace Relations Act which talks loosely about it being an object of the Act to ensure that Australian workplaces are free from discrimination.

PN321

Your Honour no doubt will be familiar with the raft of anti-discrimination legislation that exists in this country, including in the Northern Territory, and in due course I'll be taking you to the provisions of the Anti-Discrimination Act of the Northern Territory which I say is relevant and I say that the known consequences of terminating this agreement will offend the principals not only of the objects of the Act, not only of the Racial Discrimination Act, but also of the Anti-Discrimination Act of the Northern Territory.

PN322

I’ve obviously done some research, your Honour, to see if I can find a case in which an application under section 170MH has been knocked back on the grounds that it will lead to a discriminatory outcome and as I think I said in the submissions I haven’t been able to find one. What I have found though, of course, is the reasoning of his Honour Munro J in the Joy Manufacturing case. Is your Honour familiar with that?

PN323

THE SENIOR DEPUTY PRESIDENT: Yes.

PN324

MR SNADEN: Do you require a copy of it?

PN325

THE SENIOR DEPUTY PRESIDENT: No, I don’t.

PN326

MR SNADEN: You would know there, your Honour, that in that decision Munro J in talking about circumstances in which the private interests of employees might overlap with the public interest. His Honour cited - this is at paragraph 16 of my submissions, your Honour - in paragraph 34 of the decision in Joy Manufacturing his Honour said:

PN327

An individual interest may have an overlapping public interest dimension. The individual interest in freedom of association, or in freedom from certain kinds of discrimination, is an instance.

PN328

So what you have there, your Honour, it’s obviously not a binding statement of principal, but it is a statement by a senior member of the Commission to the effect that it is in the public interest that the Commission do whatever it can to avoid employees being discriminated against on certain basis.

PN329

THE SENIOR DEPUTY PRESIDENT: Well, what basis do you refer to in that regard, having particular regard to section 3J of the Act? Which components of 3J to you say apply in this instance?

PN330

MR SNADEN: Well, of 3J we say race, national origin and social origin. We also say though, your Honour, that you should look beyond section 3J and I’m aware of my friend’s submission on the Stamatov case, know doubt you’ve read his submissions on that. We say that you can look beyond section 3J of the Act and the relevant sections of the Racial Discrimination Act and that you can look at the provisions of the Northern Territory Anti-Discrimination Act and the reason I raise that, your Honour, I will get to this in due course, is that the Northern Territory Anti-Discrimination Act does make it unlawful for an employer to discriminate against employees on the basis of their citizenship or nationality.

PN331

Now, I say that that is, as I say, self evidently a matter of public interest because it’s part of the law, it’s in the statute. But for the purposes of section 3J, your Honour, the basis in which I say that the employees will be discriminated against if the agreement is terminated are race, national origin and social origin. So, your Honour, as I say it is hardly a controversial statement. We say that there is an obvious public interest in not facilitating as this application would do if it was granted, not facilitating an outcome that breaches a law, in fact several laws, of democratically elected parliaments. I had planned on getting to this a bit later, but the- - -

PN332

THE SENIOR DEPUTY PRESIDENT: Don’t let me interrupt you, you get to it whenever you want to.

PN333

MR SNADEN: Yes. Okay, your Honour. The applicant doesn’t dispute that there will be discrimination against the Australian employees, at least as I understand their submission. They say simply that the discrimination that will occur is not unlawful discrimination. They refute the allegation that the employees will be discriminated against on the basis of their race or national or social origin. They say that if there is discrimination it will be discrimination on the basis of citizenship which they say is not unlawful. Now, there are a couple of responses to that and I know that my learned friend will make, no doubt, extensive reference to the Federal Court decision in Stamatov and I don’t want to steal his thunder on that.

PN334

I simply say this, your Honour. First of all we don’t accept that it is only on the basis of nationality that the employees will be discriminated. We say that there is very much an argument that termination of this agreement will lead to them being discriminated against on the basis of their race, national origin and social origin. Now, I don’t raise this by way of criticism, but that’s been flippantly addressed in the submission of the applicant. They have simply said well, that’s just not the case. Whether or not it’s the case is a matter for evidence. We say it is the case and if it is the case then it is self evidently a matter of public interest.

PN335

That’s the first response to their argument. The second response is that it doesn’t actually have to be unlawful in order to be a matter of public interest. If it is unlawful, ie. if it is prohibited by statute, then obviously it will be a matter of public interest. But it doesn’t need to be, your Honour. Discrimination statutes, as you would be aware, have been the outcome of a number of what I might refer to as social movements dating back several decades. Now, before the various State and Federal anti-discrimination Acts came in there were treaties to which Australia was a signatory, there were a number of social movements that called for the abolition or prohibition of all sorts of different types of discrimination, including the types that we’ve identified in this case.

PN336

We say that even if it’s not unlawful - I don’t accept that it’s not, but even if it’s not - there is still a public interest in avoiding discrimination against Australian employees on the basis of their race, national extraction, social origin or nationality. It doesn’t need to be unlawful. I guess I can best illustrate that, your Honour, by way of example. Your Honour might be familiar with - and this will seem an obtuse example, but it is an example - the commercial television stations in this country are not regulated in terms of the content that they can screen by any Act or regulation of parliament. They are regulated by a code of practice to which the commercial stations voluntarily sign up to.

PN337

Now, any breach of that code of practice whilst not necessarily unlawful will still be obviously a matter of public interest. So as I say it doesn’t necessarily need to be unlawful under a statute in order to be a matter of public interest and the applicant’s reliance or purported reliance on the absence of citizenship as a ground under the Racial Discrimination Act doesn’t hold any order. Even if they’re right it’s still capable of being a public interest consideration. And I say it is a public interest consideration. It’s a consideration that this Commission should have regard to in refusing the application.

PN338

That’s the second response to the applicant’s submissions on discrimination. The third is one that I’ve already begun to canvass, your Honour, and that is the provisions of the Northern Territory Anti-Discrimination Act. I do have copies of that Act with me, your Honour. I don’t intend to spend a lot of time on it, but it might be appropriate that I hand one up.

PN339

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN340

MR SNADEN: I raise this, your Honour, only if you are against me both on the allegation that the employees are being discriminated against on basis other than their citizenship and if your Honour is against me on the argument that it doesn’t necessarily need to be unlawful to be a matter of public interest. I say that even if those points fall down I get up on the basis of the Northern Territory Anti-Discrimination Act because this Act does prohibit discrimination on the basis of citizenship. If your Honour looks at section 19 your Honour will see there that there is a list of the basis or attributes on the basis of which it is unlawful in the Northern Territory to discriminate and when I say discriminate I include discriminate in the context of an employment relationship. I don’t think there’s much that’s controversial about that.

PN341

It’s at paragraph (a) that says that it is unlawful to discriminate against somebody on the basis of their race. Race is defined in section 4 of the Act and relevantly it’s defined to include the nationality of the person. So, your Honour, even if Mr Hankin is right about all of the points that he raises in his submissions - and I say that he’s wrong about all of them - but even if he’s right discrimination on the basis of citizenship or nationality in the Northern Territory is unlawful and if it is unlawful then it is self evidently a matter of public interest that this Commission should not facilitate something that will result in people being discriminated against on this basis.

PN342

THE SENIOR DEPUTY PRESIDENT: Mr Snaden, how does the proposition that you’re putting to me actually ensure that discrimination would not occur?

PN343

MR SNADEN: How does it ensure that discrimination would not occur?

PN344

THE SENIOR DEPUTY PRESIDENT: By definition, tell me if I’m wrong, but it can’t do so. There’s nothing in this application that impacts in any way on what the employer, Northrop Grumman, might pay to the employees who come from the United States.

PN345

MR SNADEN: Your Honour, we know what the employer is going to do once this agreement is terminated, if this agreement is terminated.

PN346

THE SENIOR DEPUTY PRESIDENT: You know what the employer is going to do in relation to the employees covered by this agreement. What you don’t know, and tell me if I’ve got it wrong, is what the employer’s going to do in relation to employees who may have come to work in this part of Australia from the United States.

PN347

MR SNADEN: Well, we know that they are not going to have their wages reduced. That’s the whole point.

PN348

THE SENIOR DEPUTY PRESIDENT: How do you know that?

PN349

MR SNADEN: From what we’ve been told.

PN350

THE SENIOR DEPUTY PRESIDENT: I see.

PN351

MR SNADEN: That will be the evidence. The evidence will be that that is what we’ve been told in negotiations. This move to reduce wages is a move that is focused solely on the Australian employees. Now, why that is again is probably not something I should speculate about, but that is the crux of our case, your Honour. What is happening is only happening to the Australian employees. The Australian employees are not necessarily averse to having their wages and conditions reduced and they’ve said this to the company. They’ve said look, if you want to save money and you want to do so by cutting labour costs, that’s fine, do it across the board, don’t just target us.

PN352

THE SENIOR DEPUTY PRESIDENT: With the benefit of hindsight do you say to me now that the agreement about which we’re arguing now should have been certified in the first place?

PN353

MR SNADEN: Yes, it should have been. There’s no issue under section 170LU(5), I think it is, your Honour, for this reason. Number one, the agreement itself doesn’t lead to the discrimination that we say exists and will be exacerbated by termination. That is something that exists by reason of the remuneration policies of the applicant. Secondly, and more importantly, the certified agreement that we’re talking about actually gave the Australian employees parity with their American colleagues. That’s what this whole fight is about, your Honour. The maintenance of parity between the Australian and the American employees.

PN354

THE SENIOR DEPUTY PRESIDENT: When you say ensured parity, is that set out somewhere in the agreement?

PN355

MR SNADEN: I don’t think it is, no. I don’t think it is.

PN356

THE SENIOR DEPUTY PRESIDENT: So how do I know that?

PN357

MR SNADEN: Well, at the moment you don’t. You, I guess, can take my word for it. There will be evidence in due course to that effect.

PN358

THE SENIOR DEPUTY PRESIDENT: There was talk in the last hearing occasion of some link between the monetary amounts in this agreement and an exchange rate that was then applicable.

PN359

MR SNADEN: Yes, that’s a very confusing relationship, your Honour, and it’s not one that is particularly relevant. What happened at the time of the last agreement was that the way the comparisons were done was that the company took an American employee receiving American dollars and made a few adjustments to compensate for different tax rates, superannuation differences between the two countries, that sort of thing, and then said on the basis of that adjusted rate we will pay you the Australian dollar equivalent applying what was then the exchange rate of 56 US cents in the dollar. That is where the 56 cent in the dollar question starts and finishes.

PN360

THE SENIOR DEPUTY PRESIDENT: I see. Well, how do I know then that the changes that the employer proposes to make to the remuneration of persons covered by this agreement will not simply address the change in the exchange rate and will not, as it were, simply establish a level playing field in terms of arrangements applied to these employees with their American counterparts whom I understand would be paid monies into their American bank accounts and presumably on the basis of some additional payment or recognition of the fact that they’re working here in Australia.

PN361

MR SNADEN: Yes. Again, your Honour, you don’t. There’s no evidence about that. We have sought information in that regard, it’s been promised to us, but not provided. All we have at the moment are instructions from both sides and my instructions are that there are a number of allowances and a number of pay rises that are or have been received by the American employees, but not the Australian employees the effect of which is that even on today’s exchange rate the Americans are paid in excess of what the Australians are paid and of course will be paid even more relatively if this agreement is terminated.

PN362

THE SENIOR DEPUTY PRESIDENT: But does that constitute discrimination?

PN363

MR SNADEN: Yes it does, your Honour. Absolutely.

PN364

THE SENIOR DEPUTY PRESIDENT: If an American employee came from the state of California to another country to work might it not be the case that that person would require or request some additional payment in order to come from America to Australia?

PN365

MR SNADEN: It might, your Honour, and those things will need to be taken into account and we say are taken into account. Even when they are taken into account they’re still paid more.

PN366

THE SENIOR DEPUTY PRESIDENT: I see. How are you suggesting I take those sort of issues into account?

PN367

MR SNADEN: Today you can’t.

PN368

THE SENIOR DEPUTY PRESIDENT: But if this matter proceeds how would you suggest that I make an assessment of the additional payments that might be made to the American employees so as to be able to determine what constituted discrimination and what did not?

PN369

MR SNADEN: Well, it would be a matter of fairly simple mathematics, your Honour. We would need to present to you evidence of what the Australians get paid, evidence of what the Americans get paid, evidence of what the various differences between regulatory regimes in America and Australia are. I’m not suggesting that it will be easy, but it will be doable and it will be doable as a matter of evidence. Now, I’ve already canvassed the prospect of getting documentary information from the company to that end. If we’re successful
then - - -

PN370

THE SENIOR DEPUTY PRESIDENT: But does it not require then that I make an assessment of what would be a fair additional payment to be made to an American employee in return for that person coming out to Australia? Is that not implicit in what you’re putting to me?

PN371

MR SNADEN: Probably, yes.

PN372

THE SENIOR DEPUTY PRESIDENT: And have you turned your mind to how I might do that? I’m not suggesting American inspections, don’t get me wrong, but I am struggling with what you’re putting to me.

PN373

MR SNADEN: To be quite honest with you, your Honour, no I haven’t. Just excuse me, your Honour. As I say, it will be a matter of going through and working out what are the differences in tax rates, what are the differences in superannuation rates. This was all done three years ago, there’s no reasons why it can’t all be done again.

PN374

THE SENIOR DEPUTY PRESIDENT: That’s not the question I’m asking. Those aspects would be relatively simple, albeit time consuming and probably research intensive. The issue that I’m asking about is how I would make an assessment of what constituted a fair additional payment to a person who might have their family domiciled in California or New York or anywhere in the United States and in order to come to Australia to work they might require or request some additional payment. Now, how would I determine whether the additional payment that they were to be given was a fair thing?

PN375

MR SNADEN: Well, I don’t know the- - -

PN376

THE SENIOR DEPUTY PRESIDENT: Perhaps I'll pause at that point. If the person perhaps instructing you, Mr Snaden, wants us to take a break in order that you can answer that question I’m very happy to do that, but I don’t think he’s helping you at the present time.

PN377

MR SNADEN: I don’t think a break will be necessary, your Honour. This has been done before, your Honour. I don’t think that you would have to - your Honour’s talking about how would I make a discretionary assessment of what might be a “fair payment”.

PN378

THE SENIOR DEPUTY PRESIDENT: Yes, well that seems to be implicit in what you’re asking me to do.

PN379

MR SNADEN: I think I said, I think initially that I agreed with you on that point and now that I think more about it I might withdraw that agreement. The American employees, as I understand it, their families are brought out here so there’s no issue about that. What is a fair compensation for the fact that they are living in a different country is an issue that’s already been done, it’s already been calculated. It was calculated several years ago when the issue of pay parity was raised in the negotiations for this certified agreement.

PN380

THE SENIOR DEPUTY PRESIDENT: But who did it?

PN381

MR SNADEN: Well, I don’t know who did it, your Honour.

PN382

THE SENIOR DEPUTY PRESIDENT: And you say I simply rely on that approach?

PN383

MR SNADEN: Unless someone can tell you why that approach shouldn’t be adopted in this case, which to me on 30 seconds worth of thinking about it seems it would be a very difficult argument to sustain. Why wouldn’t you?

PN384

THE SENIOR DEPUTY PRESIDENT: I see.

PN385

MR SNADEN: I think if it’s been done before, there’s been a lot of time and effort given to calculating that. Really what we’re talking about here are not so much the fair relocation expenses, we’re talking about actual salaries and allowances. This is the real issue. The salaries and allowances that are received by the Americans are in excess of what are received by the Australians and that disparity will and can only be exacerbated if this application is granted because we know what the company is going to do. They’ve told us, they told you. They’re going to reduce people’s salaries by between 17 and 20 per cent.

PN386

Your Honour, I did want to go through the applicant’s submissions just before I move off this discrimination ground and start talking about the good faith bargaining ground. There were a couple of passages in their submission that I wanted to address specifically. The first concerns - does your Honour have a copy of those submissions?

PN387

THE SENIOR DEPUTY PRESIDENT: Yes, I do.

PN388

MR SNADEN: The first concerns paragraph 2 where the applicant says that it is not correct that there are three different types of employees who work at the Joint Defence Facility at Pine Gap. They say that there are Australian employees and there are American employees and that if some of the American employees have been granted permanent residency status as we know they have been, then that’s not a matter that concerns the applicant. That’s a bit cute, your Honour. The permanent residency status of a number of the American employees is notorious, it’s well known and because those employees are receiving the wages and conditions that are received by all of the American employees it’s simply not open - they are living in their home country. Australia is now their home country.

PN389

It’s not open to the applicant to say well, they should be paid more because they are in a special condition. They’re living in another country, they’re far away from their homes and their families. That’s just not right. This is their home country. This is where they’re from, this is where they live. They haven’t given up their American citizenship, that may be true. My understanding is you can’t simultaneously be an American and Australian citizen. But that doesn’t change the fact that this is their home country. So to make a distinction or to cover ones eyes, for the company to just simply cover its eyes and say well look, there might be some permanent residents or there might not be, we don’t know - that’s inappropriate and it’s just in blank a denial of reality.

PN390

Of course the existence of permanent resident employees is something that we’re going to be asking you to take into account in due course, your Honour, for that very reason. Paragraphs 26 to 29 are the next passages of the applicant’s submissions that I wanted to address. In a sense I’ve already touched on them, I just want to do so again. In paragraph 26 my learned friend begins by saying that there is no suggestion that the applicant is motivated by the race, colour, descent and ethnic origin of the Australian employees. No one’s ever made reference to colour, but just to put his mind at ease there certainly is a suggestion that the applicant is motivated by race, descent or ethnic origin.

PN391

So far the only side that’s been saying that there’s not is the applicant, and I don’t know whether that’s wishful thinking on their behalf or not. But lest there be any ambiguity about it we certainly do make that suggestion. My learned friend then goes on to say that there is a distinction, as we’ve discussed, between discrimination on the basis of citizenship and discrimination on the basis of national origin and, your Honour, you’ll be addressed no doubt at great length about the decision of the Federal Court in the Commonwealth and the Human Rights and Equal Opportunity Commission, which is otherwise known as the Stamatov case.

PN392

They make reference to that case and make reference to that distinction whilst at the same time saying we don’t concede that we are discriminating. Now, it’s possible for them to do that, but I think, your Honour, it’s fairly clear from those paragraphs and also later at paragraph 32 that there is at least an implicit acknowledgement that what is being talked about here does amount to at least to discrimination against the Australian employees on the basis of their nationality or citizenship. Now, I'll leave it open for my learned friend to dispute that and no doubt that he will, but when you me along to this place and say as they have, well discrimination on the basis of citizenship is not unlawful, we’re allowed to do it, that to me suggests that you’re acknowledging that you are going to do it.

PN393

Paragraph 33 my learned friend says that as an alleged ground on which the public interest would be offended this ground collapses. Well, it doesn’t collapse. The allegations are there. We press them. Discrimination on the basis of citizenship is unlawful. Even if it wasn’t it would still be a matter of public interest. That ground, that public interest ground that we’ve identified does not collapse. In fact if anything it’s made stronger by the implicit acknowledgement in the applicant’s submissions that what they’re proposing will discriminate on the basis of citizenship or nationality. So, your Honour, that really brings me to the end of my submission on the discrimination ground that I’ve identified.

PN394

We say that it is or will be self evidently contrary to the public interest to terminate a certified agreement where by doing so the result is that employees will be discriminated against on the basis of their race, national extraction, social origin or nationality. The public is clearly interested - - -

PN395

THE SENIOR DEPUTY PRESIDENT: Does it follow then, Mr Snaden, if the parties do finally reach an agreement that you would say pursuant to LU(5) the Commission ought to be satisfied then that as a precondition for certification of that new agreement the agreement should provide for the same employment terms and conditions for the Australian employees as those that come from America?

PN396

MR SNADEN: We wouldn’t say that that would provide the Commission with a basis - the answer is no. We wouldn’t say that that would provide the Commission with a basis to refuse certification because LU(5) contemplates the discrimination being the result of the agreement itself. The American employees wouldn’t be subject to this agreement so there’d be no discrimination inherent in the agreement itself as between the Australian employees. So that wouldn’t be a barrier to certification.

PN397

So, your Honour, if as we allege the respondents are able to make out as a matter of evidence that they will be discriminated against relative to their American colleagues then we will have demonstrated a matter of public interest to which the termination of this agreement is contrary and you will have a valid basis to refuse the application that’s being made. That’s all I wanted to say about the discrimination ground at this stage, your Honour, unless you have any questions.

PN398

THE SENIOR DEPUTY PRESIDENT: No, that’s fine. Thank you.

PN399

MR SNADEN: The second matter of public interest that I say the termination of this certified agreement would be contrary to concerns the applicant’s bargaining and specifically their lack of good faith during the bargaining process. I say that it would be contrary to the public interest for the Commission to terminate this agreement because the applicant has not bargained for a replacement agreement in good faith. Now, we say that that lack of good faith has manifest itself by the failure or refusal of the applicant to provide information about what the American employees receive. We say that that is relevant information.

PN400

It’s information that the Australian employees should be given so that they can make their own assessment about whether or not they are paid on a par with their American colleagues and whether or not the reductions that are being contemplated for them would prejudice them relative to their American colleagues. Now, the provision of that sort of information, or the non provision of that sort of information, can amount to a failure to bargain in good faith. Your Honour will be no doubt familiar with some of the decisions that were made under the old Industrial Relations Act, specifically section 170QK of that Act.

PN401

Obviously there is no equivalent of section 170QK in the current Act. There is no legal obligation imposed on anybody to bargain in good faith. I’m not suggesting that there is, but the cases do make it clear that notwithstanding it is still a matter of public interest and it is still something that this Commission can consider in an MH application as a basis to not terminate and we say that is something that should be followed in this case. Now, my learned friend’s submissions in relation to this particular ground are similar in structure to his submissions in relation to the discrimination ground. He talks a little bit about whether or not a failure to bargain in good faith can be an issue of public interest and then talks a lot about whether or not the applicant has actually bargained in good faith.

PN402

Now, again, whether or not the applicant has or has not bargained in good faith is a matter for evidence. It can’t be determined today. We say that it hasn’t and I will be addressing the points that Mr Hankin’s raised as to why it has, but at the end of the day that’s not something that the Commission can make a decision on today. All we can concern ourselves with today is whether or not if the respondent’s can make out a case that the applicant hasn’t bargained in good faith, the question is whether that in and of itself is a public interest concern that this Commission might be able to use to justify not granting the application.

PN403

Your Honour, again I’m going to be relying on the reasoning of his Honour Munro J in the Joy Manufacturing case. You would have seen the extracts of that reasoning that I’ve included in my submissions. The background to that case as you are probably aware was that there as a protracted industrial dispute between, I think it was mine workers and the company. There was industrial action in the form of strikes and lockouts that lasted in excess of six months, there were moves by the company to certify a non-union certified agreement under section 170LK, there were moves by the company to not meet with various union representatives and there was a suggestion that the company was itself in fairly serious financial difficulties.

PN404

It was argued on behalf of the union in that case that Joy Manufacturing had not bargained in good faith and you’ll find a fairly good summary of those submissions at paragraphs 20 and 21 of the decision of his Honour. Does your Honour have a copy of that decision?

PN405

THE SENIOR DEPUTY PRESIDENT: Yes, I do.

PN406

MR SNADEN: If I can read from paragraph 20, your Honour. Mr Harris who was the representative of the union:

PN407

In Mr Harris' submission, Joy had given contradictory and misleading accounts of its financial position. Joy had not responded fully to a summons to produce details of the financial position and trading results. What is known does not give rise to an inference that the employee's interests would be better served by the continuance of Joy as an operational enterprise than its closure. No submission had been put that the Moss Vale site -

PN408

Which is the site under consideration there -

PN409

- would close if the application for termination of the Agreement is rejected.

PN410

And at paragraph 21 Mr Harris’ concluding submission was to the effect that the employees had dug in. He claimed that they had done so because the employer had capriciously added items for negotiation, locked out employees during the period of 14 days they had to respond to the employer’s offer and had refused to negotiate with the unions for a period of time. Now, what his Honour said later on in that case at paragraph 52 was that if those facts were sufficient to establish that the employer had not been negotiating in good faith then that was a matter of public interest by reference to which it was open to the Commission not to terminate the agreement.

PN411

I think the words that his Honour used are at the end of that paragraph. He says:

PN412

I am satisfied that it may be against the public interest to effectively set aside the condition of a subsisting but expired agreement in circumstances where failure to negotiate a replacement agreement is attributable to a lack of good faith bargaining by one of the negotiating parties.

PN413

And that is precisely what we say has occurred here. The non-provision by the applicant of information concerning what the American employees provide has meant that the Australian employees can not reasonably make their own assessment of what sort of a cut they should be expected to shoulder. If that information had been provided then there is every chance that the parties would be closer to reaching an agreement and it is substantially because, we say, of that failure to provide that information that there hasn’t been agreement and that amounts to not bargaining in good faith and, as his Honour says, that can be a matter of public interest.

PN414

Now, in that case his Honour didn’t actually refuse to terminate the agreement on that basis because he was of the view that notwithstanding all of the terrible things that the employer had done in that case, they had cured their sins prior to making the application and they’d done that in a number of ways, one of which was by agreeing to a consent arbitration under section 111AA of the Act. So his Honour said well look, if these things hadn’t have been done and I could be satisfied that the employer hadn’t bargained in good faith then I may well have been able to find that I shouldn’t have terminated the agreement. But that wasn’t the case in his case.

PN415

He said look, even though they might have done some bad things beforehand they have fixed them up and now I can’t reasonably conclude that they have not bargained in good faith. But if you look at paragraph 61 of his Honour’s reasoning you will see that he did at least contemplate what he might have done had the employer not cured its sins. He said specifically at the beginning of paragraph 61:

PN416

It is sufficient for present purposes that there is a public interest concern with freedom of association, rights to effective and fair agreement making, and the implicit duty to genuinely try to reach agreement.

PN417

If you move toward the end of that paragraph:

PN418

there would be no obstacle to my concluding that the termination of the Agreement would be contrary to the public interest. It would be contrary to the public interest to set aside subsisting conditions for the benefit of a party which had resorted to unfair bargaining conduct to subvert the bargaining process most consistent with genuinely trying to reach a replacement agreement.

PN419

THE SENIOR DEPUTY PRESIDENT: In the entirety of the behaviour that you describe is unfair behaviour relates to the refusal to provide comparative wage information pertaining to the American employees working at Pine Gap. Is that right?

PN420

MR SNADEN: Yes, that’s right.

PN421

THE SENIOR DEPUTY PRESIDENT: Would you have the same view if there were no Americans working at Pine Gap at all, but if identical work was being undertaken somewhere else in the world by American employees who were employees of Northrop Grumman, that is of what significance to this issue is the fact that the Americans are working in Australia?

PN422

MR SNADEN: Well, it’s an issue of proximity at the very least, your Honour. In answer to your first question, possibly yes. We would still have concerns that the Australians would be discriminated against. It’s obviously a lot easier to compare, though, in this case because not only are the Americans working in Australia, they’re working side by side with the Australians. They’re working at the same site doing the same stuff. So your Honour is correct. We say that it is the failure or refusal by the company to provide the information that we’ve asked for and I might add that they’ve promised to provide that amounts to a lack of good faith in their bargaining process.

PN423

And on the strength of his Honour Munro Js reasoning that is enough to constitute a public interest concern and it is enough for the Commission to refuse on that basis to grant the application to terminate. Now, my learned friend says three things about that reasoning. The first is that it’s just plain wrong and in running that argument he cites an example. He says well, if Munro Js reasoning is allowed to stand then it would be possible for a party to avoid having its agreement terminated simply by refusing to bargain in good faith.

PN424

I think the example that he’s thinking of would be if you had employees or a union who knew that the only way forward in terms of a new agreement would be to reduce their wages then they would be able to put that off, or indeed avoid it altogether, by simply refusing to bargain in good faith with the employer. Now, that is self evidently not the case. It is possible to read Munro Js observations in paragraph 52 that way. He says simply that it might be contrary to the public interest if the failure to renegotiate is attributable to bad faith on the part of one of the parties. But I think it’s self evidently clear, your Honour, that he was talking about bad faith on the part of the party who makes the application under 170MH which in most cases is the employer.

PN425

If the only example of bad faith bargaining was from the respondent to a 170MH application then under no circumstances would that be credibly seen as a public interest concern of the nature that his Honour was talking about. I think it’s fairly clear that he was talking about failure to bargain in good faith by the applicant, by the employer. The second point that my learned friend raises about this brings us back to the Full Bench decision in the Kellogg Brown and Root case and he at paragraph 13 of his submissions he cites paragraph 27 of the Full Bench’s reasoning. I haven’t brought copies of that case with me, your Honour.

PN426

THE SENIOR DEPUTY PRESIDENT: Yes, I’ve got a copy of it. Sorry, what paragraph are you referring me to?

PN427

MR SNADEN: It’s paragraph 27 of the Full Bench’s reasoning. Bear with me for a moment, your Honour.

PN428

THE SENIOR DEPUTY PRESIDENT: Yes, certainly.

PN429

MR SNADEN: At paragraph 27 of their decision in that case the Full Bench said:

PN430

It should be emphasized that the Commission's consideration of the public interest for the purpose ...(reads)... by the likely foreseeable consequences of termination rather than speculation about possible consequences.

PN431

My learned friend says well, how can the conduct of one of the parties during the negotiation process be seen as a consequence of terminating the agreement? It’s not an unreasonable point. The conduct of a party during bargaining necessarily happens - well not necessarily, but in this case has happened - prior to the termination of the agreement. It can’t be seen as a consequence. So he says that if you were to consider as Munro J suggested you should the conduct of the parties as being relevant to an assessment of the public interest then that would offend the reasoning of the Full Bench in the Kellogg Brown and Root case. Your Honour, he says that quite succinctly at paragraph 43 of his submissions.

PN432

Now, that argument on its face is a very reasonable one, but it takes the Full Bench’s comments in paragraph 27 out of context and it’s necessary to consider that case or the facts of that case in a little more detail. Has your Honour read the original decision of Commissioner Whelan?

PN433

THE SENIOR DEPUTY PRESIDENT: Yes I have, but I don’t have it with me.

PN434

MR SNADEN: That’s all right, I don’t think you need to have it with your, your Honour. You will note that that case involved constructions workers who were employed by a number of contractors who did construction work for Esso in it’s off shore oil and gas platforms in Bass Straight. There were three certified agreements that were subject to that application and each of them was underpinned by an award. I think there was the Metals Award and the National Electrical Contracting Industry Award. The sticking point in the dispute between the unions and the employers in that case was the length of roster rotations.

PN435

Employees were obviously working out off shore on the oil and gas platforms. At the time of this application, I think possibly even to this day, they work 14 day rosters, seven days out, seven days in. The companies wanted to increase that to 28 day rosters, 14 days out, 14 days in, and the unions and the employees were opposed to that and that was the sticking point in negotiations for a new certified agreement. So the employers said right, we will apply under section 170MH to terminate your agreement, we will knock your wages back - I think it was by about 10 to 15 per cent in that case - and we’ll do that as a means of putting pressure on you to agree to the 28 day roster rotations that we want.

PN436

In that case there was evidence that the 28 day roster rotations could not be introduced without agreement of the employees. The awards that did continue to apply after termination of the agreements didn’t allow 28 day roster rotations and the Commissioner at first instance, Commissioner Whelan, said that doesn’t really matter, I don’t have to consider necessarily or solely what are the consequences of terminating the agreement, I’m allowed to consider what motivation it is that animates the employer in making the application. And that is the issue that the Full Bench had a particular concern with and that is the issue that it was directing its comments to at paragraph 27.

PN437

It says it’s not good enough to take into account simply the motivations of the employee, you’ve got to look at what it’s actually going to do and in circumstances where it wasn’t actually allowed by reason of the awards to do what it wanted to do, it simply wasn’t open to the Commissioner to say that motivation was relevant. Now, my friend seizes on this and says well, as a result any conduct that takes place during the bargaining process should be considered irrelevant for the purpose of assessing the public interest.

PN438

THE SENIOR DEPUTY PRESIDENT: Sorry, Mr Snaden. Can you just come back to the issue that you’ve just moved on from. That is the context in which I should read paragraph 27 of that Kellogg full bench matter.

PN439

MR SNADEN: Yes.

PN440

THE SENIOR DEPUTY PRESIDENT: The issue that I’m struggling with in that regard goes to the extent to which I can read paragraph 27 just in that narrow historical sort of context. Particularly given that the Full Bench in the preceding paragraphs addressed at some length the constructions of section 170MH(3) and went to the statutory test inherent in that particular section. I don’t see anywhere in the paragraphs 20 through 27 where in that decision the Full Bench limited to observations made in paragraph 27 to the historical circumstances that you’ve outlined.

PN441

I can see that they in fact almost went the other way, and that is explored the extent to which it would be possible to come up with a blue print or rules or guidelines for the determination of the public interest consideration in MH, but they then concluded that that wasn’t possible. In paragraph 23 they talked of the notion of public interest. The following three or four paragraphs summarise the approach adopted in various other decisions relative to the issue of public interest. So I’m struggling with how I should read paragraph 27 as limited by the history of the matter before Commissioner Whelan.

PN442

MR SNADEN: Yes.

PN443

THE SENIOR DEPUTY PRESIDENT: You’ll need to help me in that regard.

PN444

MR SNADEN: Yes, you’ll be happy to know that I can, your Honour. Paragraph 35 of the decision, which is the paragraph I’m just about to get to, is where they talk about whether or not conduct of one of the parties during bargaining can be a matter of public interest and they say that it can. And again I think it would be useful to know some of the background to the reasoning in paragraph 35. I'll give your Honour a chance to read that paragraph.

PN445

THE SENIOR DEPUTY PRESIDENT: Yes. That one scored an asterix in my considerations.

PN446

MR SNADEN: Yes. Well that paragraph is inconsistent with paragraph 27, I can see that. You can’t simultaneously say that the conduct of one of the parties during the bargaining process is a matter of public interest.

PN447

THE SENIOR DEPUTY PRESIDENT: I'll refrain from telling the president your views in that.

PN448

MR SNADEN: I don’t mean any disrespect in saying that, your Honour, and that’s why I said that the context of the case was relevant to the construction of paragraph 27 because as I say in that case Commissioner Whelan had made her decision not on the basis of what the employers would do, but on the basis of what they wanted to do. And so the Full Bench was saying well, motivation is not enough, you’ve got to look at consequences. But in the same case there was a suggestion that the contractors, the three applicants, hadn’t bargained in good faith because they had only done what Esso had told them to do and that’s what the Full Bench is talking about in paragraph 35 there.

PN449

Commissioner Whelan had said in her decision at first instance that Esso had prevailed on the employers to such a degree that it had wielded excessive control over their negotiations and she had said that it can not amount to genuine bargaining where the parties are not bargaining in their own interest, but are doing so in the interest of another unrelated party, ie. Esso. She was overturned on that point. The Full Bench said that’s not right, it’s entirely appropriate for a principle to want to be involved in and to want a favourable outcome to the bargaining that’s entered into by its contractors. They said that doesn’t amount of bad faith bargaining at all, that’s quite reasonable and quite normal.

PN450

But in paragraph 35 they said now in saying that we don’t mean to suggest that there are no circumstances in which the conduct of the party during the negotiating period is completely irrelevant to an assessment of the public interest. In fact they said quite the opposite, it could be relevant. So the argument that paragraph 27 is the beginning and the end and that it is only the consequence of termination that you form an assessment of the public interest, that’s wrong. Conduct prior to termination is also relevant, can also be relevant. Your Honour, that’s fairly easily illustrated by way of an example.

PN451

If in this case - and this is an extreme example and I don’t mean to suggest that the employer has acted quite as badly as this - but it would be open to an employer to say at the end of a certified agreement to it’s union or to it’s employees I’m sorry, we don’t want to negotiate with you at all, we’re not going to have an agreement or if we are we’re going to ask for different things at different times, we’re not going to meet when we say we’re going to meet, we’re going to ignore certain representatives of the employees bargaining party - it’s possible for that sort of thing to happen and for the employer to then come to this place and say well, please terminate our existing agreement.

PN452

Now, I don’t think that my learned friend is seriously suggesting that the Commission wouldn’t be entitled to look at that sort of conduct, conduct that obviously exhibits bad faith in the negotiating period, and say that that is not a matter of public interest. It self evidently is and I don’t think that there’s any credible argument to the contrary. That’s the second thing that my learned friend says about this particular ground. The third thing he says is that it’s contrary to the Full Bench decision in Sensis. He says that in that case, I forget the citation for that case, but it’s referred to in both the submissions.

PN453

THE SENIOR DEPUTY PRESIDENT: You don’t need it.

PN454

MR SNADEN: My learned friend says that in the Sensis case the Full Bench found that there was no legal duty to bargain in good faith and if that’s the case then it can’t be a matter of public interest in one of the parties in a case such as this one doesn’t bargain in good faith. Now, I say that there is an obvious difference between the existence of a legal duty to bargain in good faith and the question as to whether or not it is a matter of public interest if a party doesn’t bargain in good faith.

PN455

The existence of a legal duty to bargain in good faith is only relevant to the extent that the Commission has jurisdiction to order people to do things. Under the old Industrial Relations Act section 170QK the Commission did have the power to require parties to negotiate in good faith and by that it was entitled to order that meetings take place, that certain people turn up to meetings, that certain information was provided, things of that nature. There was an obvious and non-controversial legal obligation imposed by the old Act on parties to negotiate in good faith. When the Workplace Relations Act came in in 1996 that section wasn’t there and there was no equivalent included within part VIB of the Act.

PN456

Nobody is suggesting, least of all me, that there is a legal obligation imposed by the Act on parties to bargain in good faith and if I was suggesting that I would be obviously wrong because the Full Bench in the Sensis decision says that I would be wrong. It says unequivocally there is no legal obligation to bargain in good faith. But as I said, your Honour, in relation to the discrimination point something doesn’t have to be the subject of a legislative provision in order for it to be a matter of public interest. It is possible that - well, in fact there are many examples of matters of public interest that are not confined to legislation.

PN457

Munro J in his reasoning in the Joy Manufacturing case didn’t base his decision on the existence of a legal obligation to bargain in good faith. It wasn’t open to him to do that because there obviously was no obligation. That decision came out after the abolition of section 170QK. I don’t think you’ll find anywhere in his reasons anywhere where he says there is a legal obligation to bargain in good faith. He says simply that it is a matter of public interest, the public interest requires the parties who are in negotiations for a certified agreement, the public interest requires that they negotiate in good faith. That’s a very different question.

PN458

My friend suggests that the reasoning of Munro J should be qualified by the reasoning of the Full Bench in the Sensis case. My response to that is that it shouldn’t because they were considering very different questions. Munro J was considering whether it was contrary to the public interest for a party who had not bargained in good faith to have their agreement terminated, Sensis was considering something completely different. Before I leave that point, your Honour, just excuse me for one minute. Just before I leave that point, your Honour, I do want to come back to the Full Bench decision in KBR and also Commissioner Whelan’s decision in the KBR case because as I said before, your Honour, one of the basis on which Commissioner Whelan said that it would be
contrary to the public interest to terminate those agreement was that the contractors had not bargained in good faith but had instead bargained at the behest of Esso.

PN459

Now, she was overturned on that point by the Full Bench, but not on the basis that there was no obligation or no public interest consideration associated with good faith bargaining. The Full Bench didn’t say well, as a result of the Sensis case there’s no obligation imposed on people to bargain in good faith so we can knock that ground out altogether, we don’t even need to consider whether it is good faith or not, we can just knock it out altogether. They didn’t say that. The Full Bench looked at whether or not it was actually bad faith bargaining and said that it wasn’t, but it was open to them.

PN460

Both the Commissioner Whelan decision and the Full Bench decision were handed down after the Sensis decision. It would have been open to the Full Bench if it considered it appropriate to have corrected Commissioner Whelan on the basis that she shouldn’t have found that a failure to negotiate in good faith was an issue of public interest. The Full Bench didn’t say that. It simply said that there was no example of bad faith bargaining in that case. So, it is at least implicit from the Full Bench decision that it is or at least can be an issue of public interest, but that a failure to bargain in good faith is or can be a matter of public interest, as we say it can be.

PN461

THE SENIOR DEPUTY PRESIDENT: Does it follow then that whenever you have a situation where work which is argued to be of a similar nature is being undertaken in disparate parts of the globe by the same employer that a refusal to provide information about comparative salaries would represent bad faith bargaining?

PN462

MR SNADEN: Is that my suggestion?

PN463

THE SENIOR DEPUTY PRESIDENT: Yes.

PN464

MR SNADEN: Your Honour, obviously I haven’t turned my mind to that because that’s not the circumstances we’re dealing with. But it could be, yes.

PN465

THE SENIOR DEPUTY PRESIDENT: I see.

PN466

MR SNADEN: The case is about good faith bargaining. Obviously there hasn’t been one since before 1996, but the Industrial Relations Act actually sets out, or did set out, in section 170QK the circumstances to which the Commission could have regard in determining whether or not there had been good faith and one of those circumstances was whether or not a party had provided information that was relevant to the bargaining. We say that the information that we’ve requested and that has been promised but not provided clearly falls into that category such that its non-provision, if section 170QK did apply, would give the Commission jurisdiction to make an order under that section.

PN467

Now, again I’m not saying that there’s a legal duty to bargain in good faith, there’s clearly not, but that doesn’t mean it’s not a matter of public interest. So conclusion on the good faith bargaining ground, your Honour, is there is nothing in the three lines of attack that my learned friend has raised. It is explicit in the reasoning of his Honour Munro J in Joy Manufacturing that a failure to bargain in good faith can be a matter of public interest, it is implicit in the reasoning of the Full Bench in the KBR case to the same effect and we say that if we can make out that there has been an absence of good faith in the bargaining process then we will have demonstrated an issue of public interest to which termination of this agreement would be contrary.

PN468

My learned friend then goes on his submissions, your Honour, to examine whether or not there has been a failure to bargain in good faith. As I said at the beginning that’s not something that we’re here to determine today. I think it misconstrues the purpose of today’s hearing, but I want to address his points nonetheless and I'll do so as quickly as I can. He starts by saying that the employees only want the information about what the Americans get because we mistakenly believe that we shouldn’t be discriminated against. Now, we say that in a sense that’s true. We do only want it because we’re concerned that we might be being discriminated against.

PN469

Whether or not that concern is mistaken is an issue that’s between the parties. We say it’s not mistaken and at the end of the day that’s an issue that will fall on you for determination. But to the extent that he says there’s no basis for our concern and therefore no basis for us to request the information, we say that that’s just simply wrong. There is a basis for our concern and as such we should be entitled to what we’ve asked for. He then goes on to say that the only basis for the request is the pure curiosity of the employees as to what their American colleagues get paid.

PN470

Now, there is a lot of room in this case, your Honour, for moral outrage and you will have seen there is a definite theme of moral purity to the applicant’s submissions, some of which I’m going to get to a bit later on. At the end of the day assumption of the moral high ground isn’t going to help anybody and although I think it might reasonably be construed as an insult to say that we’ve only asked for this information because of some salacious curiosity on the part of the employees, I’m happy to simply say that that’s wrong and move on. There’s a dispute as to what information was promised to the Australian employees.

PN471

We say that we were promised information about what the Americans receive. The employer says that we won’t. Again that’s a matter for evidence. My instructions on that are very clear and I have seen minutes prepared by the Australian employees of a negotiation meeting where that promise was made and in due course, not today, but in due course I hope to put that before you. At the end of the day it’s probably not relevant to the question today as to whether or not a failure to bargain in good faith is an issue of public interest. The next point that is made by my learned friend is that the information about what the Americans get can’t be provided because of privacy reasons.

PN472

Again you’ll see throughout the submissions there’s all manner of moral outrage at the very thought that the company might be allowed to provide this sort of information. Again that’s easy to raise, but it probably gets us nowhere. My learned friend cites concerns that he has under the Commonwealth privacy Act and also under US law and he says that the effect of those pieces of legislation is that the company is legally not permitted to give us what we’ve asked for. Now, that’s a question that I'll have to address. It’s not something that I really can address in the absence of evidence, but I'll do so as best I can.

PN473

But although I say that it needs to be borne in mind that this allegation of privacy wasn’t raised at any time until after this application was made. These allegations of privacy are a very recent concoction. At no point during the negotiations did anybody ever suggest to the employees that what they’d asked for the company wouldn’t be able to provide because of its obligations under the privacy Act or under US law. Had they been told that then the employees would have had an opportunity to come to this place and asked for an order that the company provide the information that it requested.

PN474

Your Honour will appreciate that had an order been made that would have gotten over any concerns, certainly under the privacy Act. I don’t understand there to be any issue of US law. If there’s an order requiring to be provided by this Commission then it has to be provided. Privacy becomes a secondary issue. In any event, your Honour, it is possible, we say, to get around even if those concerns are valid - we don’t accept that they are, but even if they are there are ways around them the obvious one being that we take the names off the information. Now, we don’t really care what the American Joe Smith gets. All we care about is what people who do the same jobs that we do get.

PN475

We don’t really care about named individuals, we just care about groupings of people. Now, you might recall it was explained to you when we were last before you, your Honour. There are about 60 or 70 American employees.

PN476

THE SENIOR DEPUTY PRESIDENT: Put this aside, Mr Snaden, do you say those employees are covered by the agreement?

PN477

MR SNADEN: No.

PN478

THE SENIOR DEPUTY PRESIDENT: Why not?

PN479

MR SNADEN: Because they’re not employees - I’m instructed that there’s also a treaty, but I think there’s an even more basic argument. They’re not employees for the purposes of the Workplace Relations Act. They’re employed under employment contracts that are entered into in a different country.

PN480

THE SENIOR DEPUTY PRESIDENT: Will you be out a little further in that regard? Where about in the Workplace Relations Act is there a definition that excludes those people as employees?

PN481

MR SNADEN: There’s not, your Honour. There is a definition of employee.

PN482

THE SENIOR DEPUTY PRESIDENT: There is. It includes any person whose usual occupation is that of employee but does not include a person who is undertaking a vocational placement.

PN483

MR SNADEN: It’s not a helpful definition for today’s purposes.

PN484

THE SENIOR DEPUTY PRESIDENT: Nothing special about that in terms of this Act.

PN485

MR SNADEN: None at all, no. An employee is essentially a person who has a contract of employment with an employer. Your Honour is saying that- - -

PN486

THE SENIOR DEPUTY PRESIDENT: I’m sorry, I’m still struggling with why those American employees are not already covered by this agreement.

PN487

MR SNADEN: That’s a question that I haven’t considered, your Honour. I understand that there is a treaty. I’m happy to look at it.

PN488

THE SENIOR DEPUTY PRESIDENT: Even if there is a treat you might need to help me out in terms of explaining the relevance of that. See, on the face of it the agreement applies to all the employees of this particular employer who are employed to perform activities covered by the Space Tracking Industry Award at the Pine Gap facility.

PN489

MR SNADEN: Yes.

PN490

THE SENIOR DEPUTY PRESIDENT: Now, the issue that I’m raising here goes to the extent to which whilst certain of the employees may be paid well in excess of this agreement because of the fact that they may have come from the United States, I don’t know that, but it does seem to me that there’s nothing obvious that excludes them from being covered by the agreement in terms often agreement and its function of establishing minimum rates of pay. If that’s right - and I stress the word if because I’m happy to leave the issue with you - then it potentially begs the question of what those employees have in terms of a view about the agreement and its continuation.

PN491

MR SNADEN: Yes, it does and I don’t know. I don’t have any instructions.

PN492

THE SENIOR DEPUTY PRESIDENT: So it’s fair then for me to understand that you’re simply representing the Australian employees covered by the agreement?

PN493

MR SNADEN: Yes, that’s right, your Honour. Yes and there are 15 of them.

PN494

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Look, I’m not saying categorically that those employees are covered by the agreement. I’m just not able to see something that automatically excludes them.

PN495

MR SNADEN: I'll endeavour to find something for you, your Honour. It’s not a question that I considered. It might be that my learned friend has some points to make on that issue. In any event, your Honour, what I was talking about was whether or not the information that we’ve asked for could be provided in a manner that doesn’t offend the American employees right to privacy.

PN496

THE SENIOR DEPUTY PRESIDENT: I understand that.

PN497

MR SNADEN: Yes. I said well there are 60 American employees, my instructions are that if we took the names off then we would not be able to determine simply from a description of the tasks that they perform and a description of what they received, we would not be able to determine from that alone who it was that that information related to so that gets around any privacy concerns. Your Honour, if it doesn’t get around those privacy concerns then it's still open to us to ask you for an order requiring that information to be provided or indeed to issue a summons which I've already flagged with my learned friend requiring the provision of that information. And that as, I say, would necessarily rule out any concerns that the company might have about its legal obligations with respect to privacy.

PN498

Your Honour, you should also bear in mind on that point that the equivalent information about the Australian employees has been released. I think its exhibit NG1 which was provided to you the last time we were before. It is a summary of the Australian employees and their entitlements. Now the applicant says we can't provide anonymous information about a group that that's four or five times the size of the Australians but somehow they can provide it about the Australians. That to me doesn’t make any sense. My learned friend says well the Australians are a part of this application, it would be very different to provide information about strangers but I don’t see the basis on which he says that. The same rules, if there are rules, would apply equally to strangers and non strangers, with respect, its just not right.

PN499

If they can provide the information about the Australians then they can provide it about the Americans. Just excuse me for a moment. Yes, your Honour, that's the end of my submissions.

PN500

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you, Mr Snaden.
Mr Hankin, I don’t want to make people starve, I do have aspirations of catching an aeroplane this afternoon back to Adelaide.

PN501

MR HANKIN: As do I.

PN502

THE SENIOR DEPUTY PRESIDENT: I'm happy to allow the parties a brief luncheon adjournment if they wish or I'm happy to continue if you're not starving.

PN503

MR HANKIN: Let's plough ahead.

PN504

THE SENIOR DEPUTY PRESIDENT: All right.

PN505

MR HANKIN: I'll deal first with the rather snide remark which my friend concluded with which was to the effect that information has been provided to him and also to his instructing solicitor setting out the remuneration being paid to each of his clients and that that same information has been provided also to the Commission. The comment that was made in relation to that, well if you can provide it about the Australian employees then it can be provided about the US employees as well and I've deliberately categorised that remark as snide because that's what it is.

PN506

THE SENIOR DEPUTY PRESIDENT: I won't go into a debate over whether it's snide or otherwise perhaps you can tell me what the problem is.

PN507

MR HANKIN: Yes. Well given that he, that my friend and his instructing solicitor have 15 clients it was incumbent with the decision made by my client for my client to provide my friend and his instructing solicitor with information about the remuneration being paid to his clients but that was done to enable my friend to actually know what the implications would be for each of his clients if this application were to be granted. You may recall though, your Honour, that during the hearing on the 21 November when that information was handed up as a sealed exhibit with the request that it be kept as sealed exhibit that I advised the Commission that the information had been provided to my friend on an express basis of an undertaking which he'd given which was to the effect that the information about any individual employee would not be provided to any other of his clients without the express prior permission of the employee who owned the information.

PN508

So it's very simply the case that the instructing solicitor and the barrister representing each of the employees individually was provided with the information about their clients on the basis that that information would not be given to third parties namely his other clients without the permission of the employees who owned the information. That can't provide any basis for asserting inconsistent conduct by Northrop Grumman. The same privacy provisions which prevent my client from giving to all of the Australian employees information about their colleagues prevents Northrop Grumman from providing to the 15 Australian employees information about this 65 or so US colleagues. And I think at this point having said that it's important just to step back a bit and let's try and get a broad picture or snap or overview of just what this case is all about.

PN509

There's a subsisting certified agreement. My client has applied to have that certified agreement terminated. If the Commission forms the view that it would be contrary to the public interest to terminate the agreement, the Commission is forbidden from terminating. If the Commission forms the view that it would not be contrary to the public interest to terminate the agreement the Commission must terminate it. The proposed public interest considerations that are put before the Commission consist of this. The 15 Australian employees have no idea what remuneration is paid to the US colleagues. From anecdotal boasting or big noting or statements or whatever they have formed the view that if the agreement is terminated then the Australian employees will be made less than their US colleagues.

PN510

They have no factual basis for asserting this other than anecdotal type information but that is their believe and one assumes it's a genuinely held belief. Because they believe that there will be a differential between their wages and the US colleague wages if the agreement is terminated they have formed the view that there will be unlawful discrimination. There's been scrounging around to find an appropriate head of unlawful discrimination and the ones that have been put up consist of discrimination on the ground of race, discrimination on the ground of social origin and discrimination on the ground of national extraction. There's not the slightest suggestion that Northrop Grumman either has or cares about any information concerning the race, social origin or national extraction of any of the Australian employees but it's chucked up in the air in the same way that one can blow bubbles out of a pipe and have bubbles going up in the air.

PN511

But having then constructed a fantasy of possible unlawful discriminatory conduct, if the agreement were to be terminated that fantasy leg of alleged discriminatory conduct is then used to boot strap the argument up to another level because the Australian employees believe that unlawful discriminatory conduct will occur. Therefore they seek information which will validate their suspicions which they believe will validation their suspicions. The fact is, on my instructions, there will be no dollar differential of any practical consequence or significance if the agreement is terminated and if the 20 per cent cut flagged by my client were to take effect. They're my instructions. However my client is caught in a bind, it cannot and will not reveal information which is private to its employees. So we then have the demands made for the provision of information which will supposedly validate the fanciful allegation of unlawful discrimination

PN512

When that is met with the perfectly reasonable response that privacy provisions of your colleagues cannot be breached that is then boot strapped up another level into that means your engaged in bad faith bargaining because you won't provide us with the information. This is almost like a snake swallowing its own tail. The allegation of the lack of good faith bargaining of course itself is one which is a flight of fantasy. The decision in Kellogg Brown and Root which my friend has taken the Commission to in fact knocks that right out the window. Paragraph 35, the Full Bench says:

PN513

Before leaving this part of the decision it is opportune to comment on the submission advanced by some of the appellants that the conduct of the party in bargaining is not a relevant consideration in the exercise of discretion required by section 170MH(3). This proposition must be rejected as too wide. There may be circumstances in which unconscionable

PN514

And I repeat:

PN515

Unconscionable conduct by a party in connection with the renegotiation of an agreement touches the public interest and should be taken into account.

PN516

There's a foot note there, 21, which refers to the objects of the Act, paragraph (e). Paragraph (e) simply refers to:

PN517

Providing a framework of rights and responsibilities for employers and employees and their organisations which supports fair and effective agreement making and ensures that they abide by awards and agreements applying to them.

PN518

So in effect in that extract the Full Bench seems to be saying, if you've engaged in unconscionable conduct as distinct from bad faith bargaining it may be that that conduct is so outrageous that the public interest gets engendered. Patently clear from paragraph 35 is that an allegation on its own of a lack of good faith bargaining is irrelevant to the exercise of the Commission's function under section 170MH. It's just irrelevant. There's got to be something more than a lack of good faith bargaining. A lack of good faith bargaining in this case is simple the mirage of an obligation to provide information concerning colleagues of the Australian employees which when not acceded to becomes you're acting in bad faith, you're not acting in good faith. This is paranoia built on paranoia.

PN519

If my client had without qualification given to each and every one of the 15 Australian employees full information about each of their Australian or US colleagues that would have been bad faith because that information in a practical pragmatic sense is owned by the people whom it relates to. So breaching privacy is bad faith. Maintaining privacy - - -

PN520

THE SENIOR DEPUTY PRESIDENT: Mr Snaden suggested that it might be possible to remove names from the information provided so as to maintain the obligation for confidentiality while still meeting his request for the exchange of relevant information.

PN521

MR HANKIN: Well, in the same way where I work information concerning the remuneration paid to the Workplace Relations lawyer could be released to all of the other lawyers in Gun and Davey. That information could be released in a manner where my name is not disclosed. Each and every one of the other lawyers within Gun and Davey would then have absolutely no doubt about whom the information relates to.

PN522

THE SENIOR DEPUTY PRESIDENT: So should I take it then it's code for - that statement is code for your saying because of the structure of the jobs at the Pine Gap facility disclosure of classification information would be automatically capable of being linked back to named individuals?

PN523

MR HANKIN: Pretty much but the job descriptions set out the jobs being performed by particular individuals. There may be two or three, there may 10 people performing that function but once the remuneration packages attached to the function then at the very list the individuals who perform that particular function can be identified. And of course, we have the one function with different remuneration packages attached to it, it's relevantly easy or ought to be relatively easy for the Australian colleagues to be able to say, well Fred Nerk has been there for 10 years, he's obviously the senior, therefore the person earning the most is Fred Nerk. The notion of disguising the information is a chimerical one. It can't be done but that simply misses the basic underlying point which is why is it relevant to the negotiation of a new agreement with the Australian employees.

PN524

THE SENIOR DEPUTY PRESIDENT: Just a question, Mr Hankin, what do you say to me about the issue that I raised with Mr Snaden, namely, the question of whether or not the American employees are covered by the agreement?

PN525

MR HANKIN: They're not. That is obliquely referred to in the opening of the agreement which is that clause 3:

PN526

This agreement including the appendix shall apply to all employees of TRW Space and Electronics Overseas Inc who are employed to employed to perform activities covered by the Space Tracking Industry Award at the company's facility at Pine Gap.

PN527

It could be better worded but all of the US employees are not employed pursuant to the award. They're all employed pursuant to negotiated terms and conditions which are reached between them and their employer. So whereas the Australian employees - my folder is falling apart - whereas the Australian employees have as their beginning of the exercise of fixing their remuneration the provisions of the Space Tracking Industry Award, the US employees wouldn’t know what the Space Tracking Industry Award was from a bar of soap at the time they are hired.

PN528

THE SENIOR DEPUTY PRESIDENT: Is that necessarily determined as to whether or not they are covered by that award? They'd be in very good company if they didn’t know which award applied to them at the time of their employment.

PN529

MR HANKIN: Well, it's simply that the award is an irrelevancy in terms of the negotiation of the terms and conditions of the US personnel.

PN530

THE SENIOR DEPUTY PRESIDENT: No, that's not the issue that I'm raising with you though. The issue I'm raising with you is whether or not the American employees are already covered by the agreement? If I'm understanding what you're telling me correctly, it is to the effect that they are not because they were not engaged under the terms of the Spacing Tracking Award.

PN531

MR HANKIN: Yes, and they weren’t engaged in the negotiation process either.

PN532

THE SENIOR DEPUTY PRESIDENT: Well, the issue that I'm wrestling
with - - -

PN533

MR HANKIN: And they didn’t get to vote on it.

PN534

THE SENIOR DEPUTY PRESIDENT: Leave all that aside for a moment, we'll come back to that in a moment. If the key determinant of whether or not the employees, the American employees are covered by this agreement goes to the scope in the application of the Space Tracking Industry Award then there is nothing in that scope and application provision that requires that employees be aware of the application of that order in order for it to regulate their employment. Now if I can then go back to the second issue you're raising, if you're saying to me that the American employees did not vote on the agreement and hence cannot be determined to be a party to it that that might go to the efficacy of the certification process but it doesn’t necessarily preclude those employees from being covered by this agreement and I invite you to comment on that.

PN535

MR HANKIN: What your Honour is raising is basically perhaps a logic issue but at a pragmatic level, my instructions are, there has been the differential way in which the US employees have been remunerated as compared to the way in which the Australian employees have been remunerated.

PN536

THE SENIOR DEPUTY PRESIDENT: Yes, I understand that and the provisions of the agreement itself insofar as index of attachment 6.1 is concerned establishes that the table VI indicates the minimum pay for each classification. So I'm not making necessarily an allegation that you're operating in breach of the agreement which appears to establish a minimum classification of rates but I am seriously resting this question of whether or not the American employees are in a legal sense if not in a practical sense a party to the agreement.

PN537

MR HANKIN: In a legal sense they couldn’t be despite what perhaps may be infelicitous wording of the scope of the agreement. It's inconceivable that an agreement would be put up to the Commission for certification where it hadn’t been voted on by all of the employees who were intended to have it - - -

PN538

THE SENIOR DEPUTY PRESIDENT: I wish that was the case, Mr Hankin, but it's simply not. There are instances where agreements have been put up without all employees voting in favour or having the opportunity to vote on the agreement. Just as there are instances where people have voted on an agreement whilst they're not a employee of that particular employer. You can leave it on the basis that I intend to leave it with Mr Snaden in that I'll give both parties the opportunity to ponder upon the issue.

PN539

MR HANKIN: All I can say, your Honour, is that my friend and I are as one that the agreement does only apply to the 15 employees and that if the wording of the agreement implies something else then that is an unfortunate accident which was never intended either by the employees or by my client.

PN540

THE SENIOR DEPUTY PRESIDENT: All right, well as I said I'm happy to leave it with you to ponder upon, that may well be the practical circumstance. What I'm looking for is something that informs me about the basis upon which you can make that assertion. All right, thank you.

PN541

MR HANKIN: I can't do any better this afternoon.

PN542

THE SENIOR DEPUTY PRESIDENT: No, that's understood.

PN543

MR HANKIN: Apart from the issue of the allegation of bad faith bargaining there is only the one other issue which is raised which is the so called allegation of discrimination. My friend got it wrong when he said that my client agrees that there is discrimination. He got that absolutely wrong. My client does not agree that there is any discrimination at all. My client says simply that in order to understand the operation of the remuneration system it's necessary to grasp the simple fact that it is a joint defence facility. That means that it is a facility which is run joint jointly by the Australian and US governments. As part of the fact that it is a joint facility it is staffed jointly by Australian and by US personnel jointly. That operates both at the governmental employees who work at the facility and it also operates at the level of the contractors who provide various facilities and services at the facility.

PN544

So there are Australian government employees there, there are US government employees there. There is my client which employees both Australian and US personnel, there is another contractor called, Rathion which also employees Australian and US personnel. The exercise in attracting appropriately qualified personnel from Australia and from the US to work at the facility is one whereby the labour market demands both of Australia and of the US are juggled. In order to attract suitably qualified Australian personnel my client has to take into account the fact that Alice Springs is a remote geographical location in Australia. To attract qualified and quality people to work at my client's operation here in Alice Springs my client needs to offer and does offer generous terms and conditions.

PN545

They are generous and my client has no quibble about that. This is not an exercise in cutting people back to a bear minimum. If that was done then qualify people would walk out the door. However at the same time as setting generous terms and conditions to attract qualify Australian personnel my client needs to set terms and conditions which will attract qualify and qualified US personnel. Now the juggling act in terms of fixing appropriate remuneration for the US personnel is a different one. Over the years some US personnel have stayed much longer than others, some of them may or may not have obtained the right of permanent residence within Australia. The fact is though that they're recruited by reference to appropriate US standards.

PN546

Those appropriate US standards mean that they had to be persuaded not only that the quality of the work is interesting enough to make them bother to apply but also that they will be able to earn sufficient remuneration to make it worth their while to come several thousand miles away from their homes, to uproot their homes for the period of the posting, be it three years or six years or nine years, however that length of time may be. And to then go back and resume their careers at a different location possibly in a different part of the US. Now there's a juggling act but the factors involved are different. The end result that my client seeks all the way through is to attract quality US people, to attract quality Australian people and to have them stay for the duration of, in the case of the US personnel the three or four year tour that they have signed up for.

PN547

And if they can be induced to sign on for another tour that's all for the better, that's all for the better. But to suggest that in juggling these different market considerations that there will be discrimination between one group of employees versus another is simply flat out wrong. It's not discrimination. It's simply arriving at a market balance which will enable good people to be persuaded to come.

PN548

THE SENIOR DEPUTY PRESIDENT: Is the joint nature of the facility defined in terms of the number of Australians and the number of Americans who need to work on that facility?

PN549

MR HANKIN: I don’t think - - -

PN550

THE SENIOR DEPUTY PRESIDENT: Or is that distinction made on the basis of the work that is required to be undertaken.

PN551

MR HANKIN: I'll have to take instructions but I don’t believe that there's a rigid set of there must be X of US people Y of Australian people. I think the numbers depend on the jobs that have to be done and just how it falls out.

PN552

THE SENIOR DEPUTY PRESIDENT: I see.

PN553

MS HAYES: That’s right, there's no specific rule, there used to be but there is no longer.

PN554

THE SENIOR DEPUTY PRESIDENT: I'm sorry, because that lady's comment is on the record I don’t have her name.

PN555

MR HANKIN: Yes, that's Ms Cathy Hayes.

PN556

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN557

MR HANKIN: She's the site director.

PN558

THE SENIOR DEPUTY PRESIDENT: Yes.

PN559

MR HANKIN: Site manager. So the essential point I'm trying to make there - - -

PN560

THE SENIOR DEPUTY PRESIDENT: If that's the case, Mr Hankin, can I take it that what you're saying to me is then that Americans would presumably be recruited on the basis that this employer believed that they could vest or only source people with those skills from the United States?

PN561

MR HANKIN: Well they're mostly on my instructions sought from the US. Occasionally on my instructions US people with the appropriate qualifications happen to be in Australia.

PN562

THE SENIOR DEPUTY PRESIDENT: I see, yes.

PN563

MR HANKIN: That's very occasionally.

PN564

THE SENIOR DEPUTY PRESIDENT: And to what extent then do you say to me that there is any comparability of the work functions undertaken by Americans and Australians? You see if there is comparability of work functions then I'm struggling with what approach would then drive the appointment of someone from America with consequent presumably additional costs as distinct from the recruitment of an Australian? Do you follow the question that I'm raising?

PN565

MR HANKIN: I'm not quite sure.

PN566

THE SENIOR DEPUTY PRESIDENT: Okay, let me rephrase it then. There is inherent in some of the suggestions that Mr Snaden's put to me an assumption that there's some comparability of various roles, some of which are undertaken, and some by Americans. If indeed the employer in this instance is not operating under a specific requirement for a set number of Australians and a set number of Americans and if indeed recruitment is on the basis of where the employer believes they can best source the necessary skills then to what extent do you say to me that there is comparability of the functions undertaken by the Americans and by the Australians at the facility?

PN567

MR HANKIN: I'll ask. My instructions are that the person appointed be it a US personnel or an Australian personnel is the person judged to be the best qualified for the particular position.

PN568

THE SENIOR DEPUTY PRESIDENT: I see.

PN569

MR HANKIN: There would be a vacancy which I think it's advertised initially internally on the net, on the company net. If that doesn’t source an appropriately qualified person then the advertising goes externally.

PN570

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN571

MR HANKIN: There is not discrimination here. It's simply rewarding people in accordance with what the market demands to get them to do it and also in accordance with their skills. There is a wide variation in the remuneration levels paid to the individual Australian employees. You will notice that from the exhibit from the last proceedings. That wide variation is dependant on the judgment made by my client of the value of the job performed by the individuals and the skills that they bring to bear on it. Now, it would be just as fanciful to say that the highest paid Australian was being - sorry, that the lowest paid Australian was being discriminated against because he's not paid as much as the highest paid Australian as it would be to say that there is discrimination between the Australians as a block and the US people as a block simply because they're remunerated by reference to different factors but there is not discrimination, that's the first point.

PN572

The second point is that my friend would have it both ways. He'd have it that there is no need for any alleged discrimination to be unlawful in order for the Commission to find that the public interest would be offended in the agreement were to be terminated while at the same time asserting that unlawful discrimination would occur. The unlawful discrimination is said to arise out of three factors, discrimination because of race, national extraction, social origin. Now I've already said that there's not the slightest suggestion that race, national extraction or social origin of any of the Australian employees or US employees has played any part in the decision by my client as to the remuneration that will be paid if the agreement is terminated.

PN573

There is no such thing other than possibly the Australian aboriginals as an Australian race. We're a country of immigrants. The latest ABS figures according to the Australian last week show that at the moment Australia has the highest percentage of overseas born citizens and residents that it's had since the years immediately preceding federation in 1900. The fact that there has been no itemisation of the races of the Australian employees by my friend simply underlines that point that the race of his clients is as irrelevant to him as what it is my client and although my friend can say that his clients are of the belief that rational discretion will occur if the agreement is terminated. There has got to be at least some skerrick of a feather to fly with on that and there isn’t and none has been suggested.

PN574

Similarly there has been no skerrick of a suggestion to the effect that there is any significant difference between the social origins of the Australian employees as compared to the social origins of the US employees. For all we know their background may be as varied as the background of anybody else. We presume it will be. Some of them may have come from working class families if one can use that word, some may have come from middle class families, some may have come from families that are relatively well off, we don’t know. As far as my client is concerned it doest matter. It's a complete irrelevancy. They wouldn’t have their jobs unless they were good at what they do. Similarly their national extraction which is Justice von Doussa in Stamatov equated with whether or not for example Anglo Saxon, Scottish, Irish, Croatian or whatever is completely irrelevant.

PN575

They are all Australian citizens each and every one of them and I presume that like I am they are proud of being Australians. That is not a factor in my client's application to terminate the agreement. It's not a factor in the remuneration that my client proposes to pay them if the agreement is terminated. So if there is nothing in what my client proposes to do which is contrary to the Federal Racial Discrimination Act how can it possibly be asserted that acting in a manner which is lawful could somehow or other invoke some mystical non specified public interest consideration in order to convince the Commission not to terminate the agreement. Now the other fact which was raised was the Northern Territory Anti-Discrimination Act.

PN576

The Northern Territory Anti-Discrimination Act unlike the Commonwealth Racial Discrimination Act does as my friend as correctly pointed out forbid discrimination on the ground of citizenship. Discrimination however does not consist of treating people differently. It consists of treating one person less favourably that another where that less favourable treatment is motivated by the forbidden factor. In this case of the Northern Territory Anti-Discrimination Act where it's motivated by citizenship, where all other things are equal and that's where it all falls down in a heap. All other things are not equal. We've got the clear and irrefutable difference in the motivation and the circumstances of each group of employees.

PN577

Discrimination is just a Chimera, it's an illusion. What we have is a company doing its best to attract the best people to come and do a job in a remote location. In doing so its prepared to pay what it takes to get qualified Australians and qualified US people to come and work here. In effect stripped of all of the fancy words the argument put forward on behalf of the Australian employees amounts to this. If it takes $100 to attract a US employee to come from California or wherever, to come and work in Alice Springs and if it takes in the normal course of events $70 to attract an Australian to come to Alice Springs to do the same job, then the Australian should be boosted up to the $100 level because everyone should be paid the same. This is not a discrimination argument. In essence it's a comparative wage justice argument. Everyone doing the same job should be given the same money irrespective of the individual background factors which have caused the assessment to be made as to what the job is worth.

PN578

Frankly that's silly, its just silly. In this tribunal we are dealing with law not with notions of jealousy, not with notions of comparative wage justice. We are dealing with law and the relevant law concerned here is whether or not there will be a public interest consideration which will be offended if the agreement is terminated and there aren’t any, there simply aren’t any. And not only will they not be offended but no amount of ducking and weaving with the relevant facts can twist those facts into a shape which could be possibly permit the Commission at this point without hearing evidence to say that there might be unlawful discrimination or that Northrop Grumman might have failed to bargain in good faith. My friend got it reasonably - nailed it pretty well when he said that in effect this is akin in a sense to an application for summary judgment.

PN579

For the purposes of the hearing today if the Commission forms the view that on no permutation of the arguments that have been put by my friend could the Commission form the view that the public interest would be offended then the application can and must be granted on the information available right now. If the Commission forms the view that there is not the slightest shred of evidence, and I say that's the conclusion the Commission must come to, to the effect that there would be any unlawful discrimination occurring if the agreement were to be terminated, then that argument collapses. There's nothing else left. I noted with interest the question that your Honour raised of my friend which was to the effect that how could the Commission assess how much beyond the market value my client should pay to US people to persuade them to come to Alice Springs and my friend couldn’t answer it.

PN580

That's because there is no answer. It's something which depends on the individual circumstances of the individual US employee. If his qualifications are rare enough and good enough then particular employee will be able to extract a higher premium out of my client than another US employee whose qualifications are not quite as good. The more people who are available to do a particular job objectively speaking the more limited their bargaining position. The greater their skills, the rarer their skills, the greater their bargaining position and the Commission could not form any view as to what that premium is worth because it's a commercial premium.

PN581

It's a commercial decision which must be reached in accordance with how much my client's client which is the US government is prepared to pay to get a particular job done. How much my client is prepared to shave off its profit margin in order to get someone with particular skills to come from New York, Alaska, Hawaii, California to Alice Springs and it can't be done and the fact that it can't be done shows that the factors that are work here have got nothing to do with discrimination but everything to do with the market place. The Commission has indicated that you've read all of the submissions. I've talked at some length now but I rely on the written document unless there are specific other issues that you wish to raise.

PN582

THE SENIOR DEPUTY PRESIDENT: There are a couple of other issues that I will flag with you, Mr Hankin. The first is to repeat the invitation that I made to Mr Snaden at the outset, you may want to comment today on any potential impact of the new legislation on this matter.

PN583

MR HANKIN: Yes.

PN584

THE SENIOR DEPUTY PRESIDENT: Alternatively, as I've suggested to
Mr Snaden he might want to take that issue away and ponder upon it, you too could do just that.

PN585

MR HANKIN: Yes. My impression about the new legislation is similar to that of Mr Snadens.

PN586

THE SENIOR DEPUTY PRESIDENT: Yes.

PN587

MR HANKIN: I can't claim to have gone through the bill that went through the parliament recently.

PN588

THE SENIOR DEPUTY PRESIDENT: Well what might be best then if I simply give you time to avail yourself of that pleasure.

PN589

MR HANKIN: Yes. My understanding from the website summary is that existing agreements can be terminated but only in accordance with the existing provisions or provisions that are very similar to the existing provisions so in that sense they don’t differ.

PN590

THE SENIOR DEPUTY PRESIDENT: That may well be the case, I'm simply giving you that opportunity.

PN591

MR HANKIN: Yes.

PN592

THE SENIOR DEPUTY PRESIDENT: The second issue is just to reiterate that you may want to come back to me on the question of the coverage of the agreement.

PN593

MR HANKIN: Yes.

PN594

THE SENIOR DEPUTY PRESIDENT: And the third is that on the
21 November you provided to me a document, a book of documents that I marked at MFI1.

PN595

MR HANKIN: Yes.

PN596

THE SENIOR DEPUTY PRESIDENT: Now I wonder what you'd have me make of MFI1 in the context of these proceedings.

PN597

MR HANKIN: As a housekeeping matter I had meant to deal with. My friend asked for that to be identified, marked for identification only at that point.

PN598

THE SENIOR DEPUTY PRESIDENT: Yes.

PN599

MR HANKIN: I presumed that he sought that so that he could seek instructions from his clients regarding the accuracy of the documentation contained in that book of documents. Now that we've had a month I seek leave to tender that document on the basis of business records so that it becomes a formal exhibit in the proceedings before us. I also have received from my client job descriptions in relation to each of the employees covered by the application. I faxed that to your Honour's associate last Friday.

PN600

THE SENIOR DEPUTY PRESIDENT: Yes, I have that document. I presume it was also provided to Mr Snaden.

PN601

MR HANKIN: Yes it was. I'll seek leave to tender that as well.

PN602

THE SENIOR DEPUTY PRESIDENT: I see. Should I presume that you're wanting to tender it on the same basis as NGI was admitted namely that it's a confidential exhibit.

PN603

MR HANKIN: Yes.

PN604

THE SENIOR DEPUTY PRESIDENT: Yes.

PN605

MR HANKIN: To the individuals and the company.

PN606

THE SENIOR DEPUTY PRESIDENT: All right. Thank you. Yes, thank you, Mr Hankin. Mr Snaden it might be best if we deal at the outset before you respond to any of Mr Hankin's submissions with the status of MF1 and the document provided to me yesterday being job descriptions for Australian employees of Northrop Grumman.

PN607

MR SNADEN: The question is, do I have any objection to that in respect to evidence?

PN608

THE SENIOR DEPUTY PRESIDENT: Yes.

PN609

MR SNADEN: No, I don’t.

EXHIBIT #NG3 (CONFIDENTIAL EXHIBIT) NORTHROP GRUMMAN SPACE TECHNOLOGY INTERNATIONAL INCORPORATED AUSTRALIAN EMPLOYEES JOB DESCRIPTION DOCUMENT DATED 05/12/ 2005

PN610

THE SENIOR DEPUTY PRESIDENT: And your position in terms of MFI1?

PN611

MR SNADEN: Again, I have no objection.

PN612

THE SENIOR DEPUTY PRESIDENT: All right.

EXHIBIT #NG4 BOOK OF DOCUMENTS PROVIDED BY NORTHROP GRUMMAN (PREVIOUSLY IDENTIFIED AS MFI1)

PN613

MR HANKIN: I'm not sure we've got 2, your Honour.

PN614

THE SENIOR DEPUTY PRESIDENT: NG2 was the outline of your submissions, Mr Hankin.

PN615

MR HANKIN: Sorry.

PN616

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Snaden?

PN617

MR SNADEN: There's a couple of issues that I need to clear to up, your Honour, the first concerns the confidential exhibits. It was suggested that my suggestion that information about the American employees, it didn’t include their names, could be provided, it was suggested that that was a snide suggestion. The exhibit NG1 is in two parts, your Honour. One part consisting of 15 pages that show in relation to unnamed employees what particular people are getting and there was a second part which was a summary of those 15 pages which equated a number with a name so that only if you had that one page summary would you be able to tell which of the 15 employees each of the 15 pages represented.

PN618

It was only the second part of the exhibit that was, and this is very clear from the transcript, only the second part of that was referred to as confidential and I did give an undertaking that I wouldn't show that second part to my clients. I haven’t done so but the rest of it, the 15 pages, were provided to the Commission and to me on the assumption that they would be shown to the rest of the Australian employees and they have been and to the extent that there's any suggestion that we're in breach of any undertaking we've given I strong refute that. We are asking no more in relation to information about the American employees than has been given in relation to the Australian employees. We don’t want names, we don’t need to be able to refer back so we can tell who is who, we don’t need that, we don’t want it. We want what's been given in relation to us.

PN619

Again, Mr Hankin, has suggested that there is no suggestion of discrimination on the basis of race, social origin or national origin. Now I thought that I had cleared that up in my opening submission when I said:

PN620

We suggest that the company is going to discriminate against these employees of the basis of their race, national extraction or social origin.

PN621

I don’t know how I could be much clearer about it than that but still Mr Hankin continues to say that there's no suggestion of discrimination on those bases, that is wrong, there is a suggestion and the suggestion is based on what's going to happen, what the company has said will happen. This is only, this reduction in wages is only going to happen to the Australian employees. Now I can see that that may be discrimination on the basis of citizenship. It may also be discrimination on the basis of their race. Mr Hankin says, well there's no such thing as an Australian race that is plainly wrong. Race is a creature of many things, culture is an obvious component of it, where you live is a component of it, the language you speak is a component of it, the dialect is a component of it, the accent with which you speak is a component of it and all of these people, all of my clients have similar attributes in that respect.

PN622

So it is entirely open for me to stand here as I have and say that the consequence of the termination of this agreement is that the employees will be discriminated against on the basis of their race. Likewise I do say, and I say it again, that there is a likely consequence of the termination of this agreement that they will be discrimination against on the basis of their national origins. I accept what
Mr Hankin has said about the Federal Court's decision in Stamatov. There is clearly a distinction between national origin and citizenship but I say that these people have similar national origins. There is no evidence about that yet but those are my instructions and my instructions are also that the Americans also have similar social and national originals.

PN623

I don’t know how I can make it much clearer. That is being suggested. We are saying that as a consequence of termination these employees will be discriminated against on those bases. Likewise, and I don’t think there is any confusion about this, we're saying that they'll be discriminated against on the basis of their citizenship. Now, Mr Hankin said well, no, your Honour, we're not discriminating against them on the basis of their citizenship we're discriminating against them on the basis of market reality. Now he says that. There's no evidence to back it up or to refute it. The purpose of today is to determine whether or not discrimination is a matter of public interest. Our case has to be taken at its highest. He's accepted that’s it's akin to a summary judgment application.

PN624

This question has be answered on the assumption that we can make out the allegations that we've made. Now it's all very well and good for Mr Hankin to get up and say, well look we need to take people who are the best qualified people for these positions and some of them come from America and some of them come from Australia and there are different market attributes in each of those places and at the end of the day that might mean that we have to pay Americans more. That's all very well and good. It's okay for him to say that but that is not the allegation that we're making. We are saying that these people - that that is not the basis or at least not the only basis upon which this discriminatory pay practice is being bought into it, into play for and, your Honour, there is an exhibit attached to our submissions which is exhibit R1 and I think it's referred to as attachment 1.

PN625

THE SENIOR DEPUTY PRESIDENT: Yes, I've noted that.

PN626

MR SNADEN: It's a document that's universally referred to as the show the money document. This is a document that was distributed by this company, not by TRW, by this company after it took control of this site from TRW. It was issued on, it says February 4 2002, but we're both in agreement it was actually 2003 and it makes numerous references to the pay practice of the company being predicated on the assumption that Australians and Americans should be paid equally. That of course, as we've said, your Honour, is something that first came about when this agreement was entered into. The whole purpose of the agreement was to award pay parity. That is backed up by this Show Me The Money document. It's all very well and good for Mr Hankin to get up and say, no, no, no, there are other things.

PN627

THE SENIOR DEPUTY PRESIDENT: Well hang on for a moment Mr Snaden, have I misunderstood you. Now you're saying to me that this agreement says that everybody will receive the same financial remuneration?

PN628

MR SNADEN: Not the agreement, your Honour, no, but I'm saying this document - - -

PN629

THE SENIOR DEPUTY PRESIDENT: No, but in this document - - -

PN630

MR SNADEN: Sorry?

PN631

THE SENIOR DEPUTY PRESIDENT: Are you saying that this, Show Me The Money document, which is attached to R1?

PN632

MR SNADEN: Yes.

PN633

THE SENIOR DEPUTY PRESIDENT: It says, that every employee will receive the same amount of money.

PN634

MR SNADEN: Well, it doesn’t say so in explicit terms, your Honour, but it does say for example, who does this apply to, same pool allocations used for all, it says, that the pay philosophy is to ensure fairness, equity and consistency of our compensation practices to our employees.

PN635

THE SENIOR DEPUTY PRESIDENT: But it's quite specific in referring to the fact that people receive different amounts of money. It refers to amounts of money as pots of money.

PN636

MR SNADEN: Yes, it does, but it's also quite self evident that the basis for that is not on the basis of race, national extraction, social origin or nationality. It makes it clear that Australians will be treated the same way as Americans, in my submission. And as I say, your Honour, that's consistent with the circumstances surrounding the making of this agreement itself in 2002. As I said the major thing that the employees were able to achieve then was comparative wage parity. It's just not open to Mr Hankin as a matter of historical record to say that there are or might be these market realities that warrant employees from America being paid more than employees from Australia when his own company, sorry his own client and its predecessor acknowledged otherwise.

PN637

Now I appreciate the difficulty that the Commission is in here, you don’t have any evidence about this and again I can only stress that we're not really here to decide whether or not there is discrimination, we're here to decide whether discrimination is an issue of public interest but it to the extent it suggested to you that there's no discrimination, that refuted. We suggest very strongly that there is and it’s not fair to characterise that suggestion as fanciful or in some way chimerical, I think was the descriptor used, that's not fair at all. These are long term employees who've done, in some case in excess of 20 years for this company. They are very highly regarded. They are not making this case simply on the basis of some fanciful or irrelevant consideration. They hold these views, they hold them on the basis of what they've been told, not only by the company but by their American colleagues and if those views are established as a matter of evidence then we will be able to make out the allegations that we’ve made.

PN638

And if we are able to make out those allegations then the question remains is it an issue of public interest and on the basis of the cases and the argument that I took you and it wasn’t seriously challenged, the answer to that question is yes it is an issue of public interest. Mr Hankin took you to paragraph 35 of the Full Bench reasoning in the KBR case and he said:

PN639

Only if there is some unconscionable conduct could it be said that the conduct of a party during the bargaining period or the bargaining process could be regarded as a matte of public interest.

PN640

Now the Full Bench doest appear to have been talking about unconscionable conduct in any legal sense. It's a word that they used because that's the word that they used. It was used in the context of an argument that was presented before Commissioner Wheelan and that she accepted that the unconscionable conduct of Esso amounted to - sorry the unconscionable conduct of the contractor in only bargaining in the interests of Esso amounted to bad faith bargaining. Now he draws a distinction between unconscionable conduct and bad faith bargaining, it's just not open for him to do that. It's entirely possible that the two terms are or the two concepts are synonymous.

PN641

And I say that there are enumerable examples of unconscionable conduct that also constitute bad faith bargaining, so again that is not what Mr Hankin might like to think is a blow, fatal or otherwise, to the suggestion that's been put to you namely that a failure to bargain in good faith can be an issue and is an issue of public interest to which you should have regard. Your Honour, you've all asked and I think the only reasonable option open to the parties on this is to go away and do some research on it. You've asked whether or not this agreement covers the American employees. My instructions are that it doesn’t. Mr Hankin said that they didn't vote on it those are - that's consistent with my understanding and I don’t know why it is as a matter of law that this agreement doesn’t apply. I can only assume that there is some enabling statute or treating somewhere that says as much and I will go away and try and find where that is.

PN642

If it turns out that there isn’t an enabling statute or some form of binding documentation that prohibits or suggest that these American employees aren’t covered by the agreement then we're getting to issues of whether or not the agreement is a valid agreement. Now, your Honour, said that it happens every day that - - -

PN643

THE SENIOR DEPUTY PRESIDENT: Well, it doesn’t happen every day but it certainly has happened.

PN644

MR SNADEN: No, sorry, I might have put that a bit higher than you said but it does, your Honour, said that it does happen that agreements are certified even when they're not voted on by people who should vote on them or when they are voted on by people who shouldn’t vote on them. That, be that as it may, the law with respect to that is very clear. There is a process that the Commission has to follow under part 6(b) when certifying an agreement, it has to ensure for example, that the agreement has been passed by a valid majority. If that process isn’t followed then there is an issue about whether or not the agreement itself is a valid agreement. Now I've just raised that for the sake of raising it at this point because I don’t know what the answer is but it's sufficient to say that we don’t accept that this is not a valid agreement.

PN645

I think both parties are of the view as Mr Hankin said we are at one on this issue. It's probably the only issue we are at one of. This agreement does only apply to the Australians and I agree it might be appropriate for us to go away and provide additional submissions on that point and on the point that you raised about whether or not the new legislation has any bearing on this application.

PN646

THE SENIOR DEPUTY PRESIDENT: How quickly could you give me that material given this time of the year, Mr Snaden?

PN647

MR SNADEN: Yes, I raised that with my instructor. He's going to be away for all of January. I assume that the Commission is probably going to have some vacation over that period as well. I would think that we'd really be looking at the beginning of February, maybe the first week of February.

PN648

THE SENIOR DEPUTY PRESIDENT: Sorry, why couldn't you give it to me before Christmas, or is that a silly question?

PN649

MR SNADEN: Well, because that's four days away and I'm just not sure that that would be enough time.

PN650

THE SENIOR DEPUTY PRESIDENT: All right, thank you. Yes, thank you,
Mr Snaden. Mr Hankin, what do you say to me about the time frame within which information could or should be provided to me about the application of the agreement?

PN651

MR HANKIN: My client is anxious to have this matter resolved as quickly as possible.

PN652

THE SENIOR DEPUTY PRESIDENT: Yes.

PN653

MR HANKIN: I can and will get a response to you this week.

PN654

THE SENIOR DEPUTY PRESIDENT: I see. Mr Snaden, what I can do is give you until mid January because as you've rightly guessed, I'm not going to be in a position to finalise my thinking on this matter until then. What about if we made it say 17 January?

PN655

MR SNADEN: Yes, very well, your Honour.

PN656

THE SENIOR DEPUTY PRESIDENT: All right, thank you. Obviously I will not be here in the business of handing down a decision prior to 17 January. I would however hope to be able to give the parties a conclusion on this issue at some stage within a week or so of that date. Depending on that conclusion it may or may not be necessary to convene a further telephone directions conference in order to look at future programming issues. If that's the case at least you're on notice of that.

PN657

MR SNADEN: Yes.

PN658

THE SENIOR DEPUTY PRESIDENT: All right.

PN659

MR SNADEN: Your Honour, can I just raise another issue before we wrap up?

PN660

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Snaden.

PN661

MR SNADEN: Since this matter was begun back in November there have been no further negotiations between the company and the employees about the issues in dispute.

PN662

THE SENIOR DEPUTY PRESIDENT: Why does that surprise me?

PN663

MR SNADEN: Well, perhaps it doesn't, your Honour. My suggestion though is that there may be a lot to be gained. I think there would be a lot to be gained and we say there would be a lot to be gained for those matters to be brought before this Commission by way of conciliation. I haven't made a formal application under 170NA and if your Honour indicates that that's the way I should go about it then I'll do so but it's in everyone's interests whilst this proceeding is going to continue over our heads and may do so for some weeks if not months, there doesn't seem to be any reason why the parties shouldn't still be talking about the issues that are in dispute between them and given that that they haven't got very far doing so amongst themselves there also doesn't seem to be any reason why we can't avail ourselves of the facilities of the Commission.

PN664

I'm not sure what my learned friend's response if any is to that. I know that I'm springing it on him a bit. I have suggested in the past that we might consider the possibility of conciliation or even arbitration under section 111AA. At this stage I'd be interested to know his and your response to that suggestion that we bring the matter for conciliation at some point.

PN665

THE SENIOR DEPUTY PRESIDENT: Are you suggesting, Mr Snaden, that it should be brought to me for conciliation?

PN666

MR SNADEN: Well, not necessarily, your Honour. If you're of the view that it shouldn’t be then I'm happy to make a separate application, but certainly I don't have any objection to it being conciliated by you. You've obviously had some background, you're familiar with the general thrust of the case.

PN667

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Snaden.
Mr Hankin?

PN668

MR HANKIN: My client sees no value now that this application has been made in having formal conciliation by this Commission. If the Australian employees covered by the application have now altered the position that they set out which is summarised in the minutes of the last meeting then they can certainly communicate that position to my client and my client is happy to sit down and talk to them. But the legal reality is that this application has been lodged, it's now had two hearing days and my client wishes to see the matter resolved as expeditiously as possible through the hearing and determination of this application. The throw away suggestion of a consent arbitration under section 111AA?

PN669

THE SENIOR DEPUTY PRESIDENT: Yes, it is.

PN670

MR HANKIN: We're not interested in that.

PN671

THE SENIOR DEPUTY PRESIDENT: I see. All right, let's rule out 111AA because as you've pointed out it is based on consent. But if we come back to the proposition that section 170NA of the Act might be utilised either by way of a formal application or by way of what I've taken to be Mr Snaden's verbal application, how should I reconcile the position that you're now putting to me with the advice you've provided to me on 21 November to the extent that your client was looking to conclude or to negotiate a section 170LK agreement as it's currently known?

PN672

MR HANKIN: We are but we don't see that formal conciliation by the Commission is likely to assist the process given that the application to terminate the agreement has now been made.

PN673

THE SENIOR DEPUTY PRESIDENT: I see.

PN674

MR HANKIN: We see that the determination of that application is a necessary prerequisite for progressing the agreement negotiation process. My client is happy to talk to the employees and if their position about the so called pay equality issue has now altered, then progress might well be achievable in making a new agreement. But unless that particular issue is resolved, either by the granting or rejecting of this particular application, my client doesn't see that further negotiations are likely to progress.

PN675

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Snaden, you and your clients have available to you the opportunity to make a formal section 170NA application. You could proceed on the basis of the issue you've already raised with me, such that it is an application made verbally. Irrespective of whether you make a formal application or simply rely on this verbal application, I would propose to convene a conference but you need to be on notice that there will need to be at least two issues to be determined at the outset. The first is the extent to which given the position adopted by Mr Hankin, the Commission is able to do anything to progress an agreement.

PN676

That is, I may get the parties to the table but whether that table results in any positive consequences from the discussion is entirely a matter for the parties and Mr Hankin has expressed his position very clearly. The second issue is dependent on the first, that is, if the parties believe there is some - or if the parties collectively believe there is some benefit to be gained from discussions there is a question in my mind as to whether or not those discussions should be convened through me or whether they should be convened under the auspices of another member of the Commission given the issues before me at the present time and that's a question that I would need to put to both parties.

PN677

My suggestion to you and it's nothing more than a suggestion at this stage, is that you confer with your clients on the issue that you've raised with me and advice me at some stage during the course of the rest of this week of what it is you propose to do in that regard. If there is to be a conference I suggest the initial conference will occur over the telephone and it will deal with those two issues that I raised. Depending on the outcome in the matter it may be appropriate for face to face proceedings. Are you happy with that approach?

PN678

MR SNADEN: I see. So your Honour would like to have a debate first about whether it's a futile exercise?

PN679

THE SENIOR DEPUTY PRESIDENT: Mr Hankin seems to suggest that the exercise would go nowhere unless there was a fairly fundamental change in the position adopted by your clients.

PN680

MR SNADEN: Well, your Honour, all parties say that.

PN681

THE SENIOR DEPUTY PRESIDENT: Yes.

PN682

MR SNADEN: We would say that as well.

PN683

THE SENIOR DEPUTY PRESIDENT: I realise that, Mr Snaden.

PN684

MR SNADEN: Well, and bringing the matter before the Commission - - -

PN685

THE SENIOR DEPUTY PRESIDENT: I'm not stopping you from bringing it to me under in any event. I'm simply saying my suggestion is you have a discussion with your clients on those issues and advise me of what it is you propose to do on that basis. All right?

PN686

MR SNADEN: Yes, okay. Thank you.

PN687

THE SENIOR DEPUTY PRESIDENT: Very well. I will adjourn the matter on that basis.

<ADJOURNED INDEFINITELY [2.34PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #R1 RESPONDENT’S OUTLINE OF SUBMISSIONS PN290
EXHIBIT #NG2 APPLICANT’S OUTLINE OF SUBMISSIONS PN290
EXHIBIT #NG3 (CONFIDENTIAL EXHIBIT) NORTHROP GRUMMAN SPACE TECHNOLOGY INTERNATIONAL INCORPORATED AUSTRALIAN EMPLOYEES JOB DESCRIPTION DOCUMENT DATED 05/12/ 2005 PN609
EXHIBIT #NG4 BOOK OF DOCUMENTS PROVIDED BY NORTHROP GRUMMAN (PREVIOUSLY IDENTIFIED AS MFI1) PN612