C2005/4551, Transcript of Proceedings [2006] AIRCTrans 401 (17 March 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 14414-1

COMMISSIONER SMITH

C2005/4551

MR SIMON ADCOCK MR JON FLEMING MR PHIL MODEN
AND
DEPARTMENT OF SUSTAINABILITY AND ENVIRONMENT
s.170LW - Application for settlement of dispute (certification of agreement)
(C2005/4551)

MELBOURNE

10.10AM, FRIDAY, 03 MARCH 2006

Continued from 21/2/2006

Reserved for Decision

PN1

MR R MILLAR: I seek leave to appear on behalf of the applicants pursuant to the grant of leave on the last occasion.

PN2

MR P O'GRADY: Commissioner, I am not sure whether leave has been granted to the state, but if not, I seek leave also to appear, to the extent - - -

PN3

THE COMMISSIONER: Thank you. To the extent necessary, and to the distance necessary, I grant leave on both occasions. Yes, Mr O'Grady?

PN4

MR O'GRADY: You will be aware from the file that the state has filed a short outline, I think, in accordance with the directions that you might have issued at least on a formal basis - - -

PN5

THE COMMISSIONER: Yes.

PN6

MR O'GRADY: It also has filed and served a short witness statement on behalf of Mr Eyre-Walker. Now, I understand Mr Millar proposes to take objection to some of the paragraphs in that witness statement, so perhaps if you are comfortable with this, Commissioner, they can be dealt with in the performance of where if Mr Eyre-Walker gets into the witness box.

PN7

THE COMMISSIONER: Sure. Mr Millar?

PN8

MR MILLAR: Commissioner, I object to the entirety of the witness statement going into evidence with the exceptions of paragraph 1, which is purely formal, and paragraph 10 which I would seek to cross-examine on. The remainder of the statement, in my submission, cannot form part of the evidence before the Commission on the basis of the Parol Evidence Rule. The agreement means what it says; evidence from this witness as to what was intended to be covered by the agreement or what he thought the terms of the agreement meant or what had been discussed in the course of the negotiations all falls outside the matters which can properly be taken into account by the Commission.

PN9

The full history of the agreement-making process is undoubtedly a saga of interest and if someone decides to write a history of the background of this agreement and how it came to be, then that could all be proper ground to be traversed. But in terms of an application to the Commission which involves the proper construction of the agreement, in my submission the agreement falls to be determined on its own terms. There is ample authority for that proposition and I will hand up, Commissioner, a decision of Lawler VP.

PN10

THE COMMISSIONER: You pick my panel here just to emphasise the point, do you?

PN11

MR MILLAR: Well, there were many hits returned on the search when I went to look at cases in this area, and this was one which stood out, Commissioner.

PN12

THE COMMISSIONER: A vice president is a good place to start.

PN13

MR MILLAR: It's a good place to start. At paragraph 14 of CFMEU v Roche Mining Pty Ltd, his Honour gives consideration to the proper approach to constructing an agreement. He says:

PN14

The resolution of a dispute turns on the proper construction of the agreement. The construction of agreements ...(reads)... material in the construction of agreements has been authoritatively stated by Mason J in Codelfa.

PN15

His Honour then goes on to consider Codelfa. I will read the underlined parts of the extract:

PN16

Obviously the prior negotiations will tend to establish objective background facts which were known to both ...(reads)... parties in the subject matter of the contract. To the extent to which they have this tendency, they are admissible, but insofar as they consist of statements and actions of the parties which are reflective of their actual intentions and expectations, they are not receivable.

PN17

And over the page:

PN18

Consequently, when the issue is which of two or more possible meanings is to be given to a contractual provision ...(reads)... facts within which the contract came into existence and to the parties' presumed intention in this setting.

PN19

His Honour concludes this section by saying:

PN20

Evidence of uncommunicated intentions or beliefs is always inadmissible on the question of construction, even where there is ambiguity. In the present case, Mr Murray's belief is that the operation of the agreement is strictly irrelevant to the proper construction of the agreement. Finally, a document must be construed as a whole.

PN21

Commissioner, those observations from Lawler VP are pertinent and applicable in the present context. There is nothing in the statement of Mr Eyre-Walker which goes outside the scope of reflections upon what was intended and what ground had been traversed in the course of negotiations. There is nothing which goes to the clarification of any ambiguity in the agreement. This is not an application under the Act for a variation because of an ambiguity or error in the agreement. This is a simple case of an application of the agreement. The agreement is clear in its terms. The agreement is able to be construed without the resort to extrinsic materials. The agreement means what it says, and in my submission, all of the evidence of the proposed witness, with the exception of the paragraphs I've indicated would be of no relevance and would only cloud the proper consideration by the Commission of the construction of the agreement. If the Commission pleases.

PN22

THE COMMISSIONER: Thank you. Mr O'Grady?

PN23

MR O'GRADY: Commissioner, the position on the other side is that the agreement is clear in its terms. That, I presume, involves a concession that only a party, be the state or the CPSU, can bring a dispute under the disputes procedure and under clause 12 of the agreement. It must also involve a concession that there is the separate procedure for the review of decisions concerning the translation to the VPS committee structure. It is with the very reason that Lawler VP points to that the evidence is sought to be brought. The passage that Mr Millar referred you to, Commissioner, in paragraph 14 where your panel head is stating a position before quoting Codelfa, is qualified by the phrase, "unless there is ambiguity in the words of the agreement".

PN24

The purpose of the evidence is to establish the objective background facts which are known to both parties, and the subject matter of the agreement. Now, they are objective facts. Mr Eyre-Walker's evidence goes to what was known to both the parties at the time. Now, in case there is any doubt about that, Commissioner, and I'm afraid I don't have copies of these authorities other than my own marked-up versions because I wasn't aware of the objection until I sat down here this morning. The High Court in Amcor at paragraph 2, the Chief Justice and McHugh J put the general proposition that the resolution of the issue, being interpretation of a clause in the agreement, and you'll know what the High Court was referring to there, turns upon the language of the particular agreement understood in the light of its industrial context and purpose, and in that case, the nature of the particular reorganisation of Amcor's business.

PN25

Kirby J at paragraphs 64-66 states:

PN26

No longer the courts or industrial tribunals seek to give meaning to contested language considered in isolation from the context in which those words are used and the purpose for which those words were apparently chosen. Nowadays, the insistence on context as well as text permeates the approach to interpretation of agreements.

PN27

His Honour refers to that well-known passage from C-u-c-k-s case, Cucks v CSR (1996) IR 66 at 182, and the relevant passage is at 184. There are two further passages which support what I say, Commissioner. In Short v Hercus (1993) 40 FCR 511 at 518, a decision of the Full Court of the Federal Court, the passage that is often referred to:

PN28

Only a kind if wilful judicial blindness could lead the court to deny itself the light of the history and to prefer to peer unaided at some obscurity in the language.

PN29

Finally, Commissioner, there is a short pithy statement by Finkelstein in AFM and PKIU v Skilled Engineering - - -

PN30

THE COMMISSIONER: With great respect to him, as he is bound to do.

PN31

MR O'GRADY: Yes. Very much so, Commissioner. It's 2003 FCA 260, 27 March 2003. The relevant paragraph is 21:

PN32

The object is always to objectively determine the intention of the parties from the words of the document. That intention can manifest itself not only from words used but from words considered in light of the circumstances surrounding the transaction.

PN33

Now, it's on that basis, Commissioner, that Mr Eyre-Walker seeks to assist the Commission by setting out the background and the history to the provisions in the 2004 agreement. In particular, the objective intent of the parties in relation to the use of the defined term "party" in step 3 of the clause and the separate process to be undertaken in the event of disgruntled employees taking issue with the translation from the previous structure to the new VPS committee structure and to that extent, Commissioner, we submit that Mr Eyre-Walker's evidence in its entirety should be received by the Commission.

PN34

THE COMMISSIONER: Thank you. Mr Millar?

PN35

MR MILLAR: Commissioner, no concessions of the type referred to by my learned friend involved in the making of my submission, save to say that the applicants do not argue that there is an ambiguity in the agreement and the agreement wording is quite straightforward and my learned friend's submissions are founded entirely upon the premise that there is some ambiguity, some uncertainty in what the agreement means, which means that it is permissible to refer to extrinsic materials. I'm not sure - - -

PN36

THE COMMISSIONER: In one sense, you disagree as to what it means. Gray J said many years ago if there's a disagreement prima facie there might be an ambiguity or uncertainty.

PN37

MR MILLAR: I don't think there is, with respect, a disagreement as to what the agreement means. It's a disagreement as to how it's applied and how the procedures contained in the agreement are enlivened and whether the - - -

PN38

THE COMMISSIONER: This is a jurisdictional objection, though, isn't it, that the state makes?

PN39

MR MILLAR: Yes. It is.

PN40

THE COMMISSIONER: And the objection must go as to whether or not the agreement applies in these circumstances or doesn't.

PN41

MR MILLAR: Well, the agreement, in my submission, applies. The only question is whether the facts involved are sufficient to enliven the operation of clause 12.1.3. In that sense, there is no ambiguity as to what the agreement actually says and what it means. The only uncertainty involved in all of this is a different construction of the facts involved and whether that clause has in fact been enlivened. So in my submission there's nothing that Mr Eyre-Walker can say that will bear upon the way that the Commission approaches its task of interpreting this agreement. To the extent that Mr Eyre-Walker will say that there is a gloss upon the words used or there is some underlying principle involved that the parties had agreed to which should mean that the agreement is viewed in that way.

PN42

In my submission all of that material must be prejudicial, it must run the risk of infecting the Commission's deliberations with material that is not properly before the Commission.

PN43

THE COMMISSIONER: How does that sit with the argument you raise as to estoppel, in this context? You say even if the doctrine of estoppel doesn't apply, the question of equity, good conscience and the substantial merits, that must give rise to where is the source of power for that. The source of power for that may well be 111(1)(g). If 111(1)(g) is enlivened, why isn't it relevant for me to consider Mr Eyre-Walker's submission in that context?

PN44

MR MILLAR: 111(1)(g), Commissioner?

PN45

THE COMMISSIONER: Yes, to refrain from further hearing.

PN46

MR MILLAR: In the public interest?

PN47

THE COMMISSIONER: Yes.

PN48

MR MILLAR: I don't think there's 111(1)(g) implication.

PN49

THE COMMISSIONER: No, the estoppel question you put to me is a public interest type question, isn't it? Because you say that if the doctrine doesn't strictly apply, then I should on the merits nonetheless hold the state responsible for its actions towards your clients.

PN50

MR MILLAR: As a matter of equity and good conscience, it would be unconscionable to permit the respondent to rely on the arguments presenting, but that is a question effectively of law based upon the facts involved. It doesn't extend to a question of the operation of the agreement.

PN51

THE COMMISSIONER: But it provides, doesn't it in your submission, a discretion to deal with the matter in circumstances where the agreement might be ambiguous?

PN52

MR MILLAR: Well, that must be the case, Commissioner. Must be the case. But it's saying that there's no concession that there's an ambiguity. If my friend wishes to point to what the ambiguity he says is that gives rise to the relevance of this evidence, I'm all ears on that because there's nothing that is apparently ambiguous in the wording of the agreement.

PN53

THE COMMISSIONER: Are your clients a party to the agreement?

PN54

MR MILLAR: Well, party as a defined term and my clients are neither of those defined parties. My clients have rights under the earlier parts of clause 12, but I can see no basis on which I can assert that my clients somehow represent a party, but that doesn't form my argument.

PN55

THE COMMISSIONER: I see.

PN56

MR MILLAR: The argument of the applicants is that a party has in fact acted in a way in which it has referred the matter to the Commission. That is the nub of the argument. That is entirely in accordance with the operation of the agreement which my learned friend urges upon the Commission. In that sense, because there is no submission made that parties should be given a small "p" rather than a capital "P" interpretation, if I can put it that way, that because there's no submission made on those lines there is no ambiguity which would give rise to the relevance of this evidence.

PN57

THE COMMISSIONER: Yes.

PN58

MR MILLAR: If the Commission pleases.

PN59

THE COMMISSIONER: Well, Mr O'Grady, I am not persuaded that I am going to be assisted by Mr Eyre-Walker's evidence. It's now a matter for you as to whether or not you wish him to be tested on whether or not he's a senior policy advisor and whether he represented the State of Victoria.

PN60

MR O'GRADY: I understood from what Mr Millar said, Commissioner, that he didn't want to test Mr Eyre-Walker on those two points.

PN61

MR MILLAR: I'm sorry, I do seek to cross-examine on paragraph 10. Briefly.

PN62

MR O'GRADY: Well, as I understood the ruling you have just made is that you're not persuaded that that was in the - - -

PN63

THE COMMISSIONER: I don't propose to admit it at all. Thank you.

PN64

MR O'GRADY: In that case, I will get on with it.

PN65

THE COMMISSIONER: Thank you. All right, Mr O'Grady? Mr Eyre-Walker is free to go.

PN66

MR O'GRADY: Thank you, Commissioner. Commissioner, I don't propose to go through the basic propositions that we have set out in - - -

PN67

THE COMMISSIONER: Sorry.

PN68

MR O'GRADY: That's fine, Commissioner.

PN69

THE COMMISSIONER: Do you want me to mark your submissions?

PN70

MR O'GRADY: That might be worthwhile, Commissioner.

EXHIBIT #VICTORIA1 OUTLINE OF SUBMISSIONS AS CONTAINED IN LETTER FROM CORRS CHAMBERS WESTGARTH DATED 24/02/2006

PN71

MR O'GRADY: Perhaps, Commissioner, while you're marking exhibits, I will have handed to you a folder of the authorities that are referred to.

EXHIBIT #VICTORIA2 LIST OF AUTHORITIES

PN72

MR O'GRADY: Thank you, Commissioner. I don't propose to take you to the authorities in relation to the basic opening proposition. I think everyone understands the proposition, and it's set out in those two authorities that are referred to. I do wish to go to the Charles Sturt University case which is tab 5, Commissioner. I note also it's an authority that appears in Mr Millar's list. In particular, I wish to go to paragraph 10 only because it's a neat statement of the position based on the earlier authorities. You'll see there that the Full Bench, yet again headed up by the leader of your panel, Commissioner, and his name may come up a few times in references that are made over the course of the morning:

PN73

The jurisdiction of the Commission as a creature of statute is limited to the jurisdiction conferred on it by the ...(reads)... procedure is also subject to any limitations in the agreement conferring power on the Commission.

PN74

Again, it's just a neat statement of the basic principle. Again, just to set the groundwork, I wish to refer you to a case of McMahon Contractors which I think is available separately, it's not in the folder, I'm afraid, Commissioner. I'm arranging to have that handed to you now. Again, it's a section 170LW application. Yet again, the panel head is on the Bench.

PN75

THE COMMISSIONER: What is the date?

PN76

MR O'GRADY: It's 24 November 2005, Commissioner. Headed up by the President, and in particular, there is no reason to go to the substance of the decision. It is again picked for a statement of principle at paragraph 14:

PN77

Finally, the Commission being a statutory creation, only has the powers which the Act confers upon it. This principle has been articulated by the High Court and the Commission in a number of cases.

PN78

Obviously, the Private Arbitration case and Others are cited:

PN79

It follows that the Commission cannot increase its own jurisdiction by an award or a decision it makes, nor can the parties to an agreement.

PN80

So what we say, Commissioner, is that you're bound by the terms of clause 12 and no matter what the parties do outside of that, the water can't rise higher than its source. If I can take you to clause 12 of the agreement, Commissioner? Do you have that available?

PN81

THE COMMISSIONER: It's coming, I trust.

PN82

MR O'GRADY: I'm happy to come back to that and perhaps turn to the letters upon which Mr Millar relies.

PN83

THE COMMISSIONER: Yes.

PN84

MR O'GRADY: In his submission, I think it's now accepted that the applicants are not a party. I think the submission really is put at two levels. One is that on the basis of - - -

PN85

THE COMMISSIONER: Sorry, can I just clear up one point? How do you define a party to the agreement?

PN86

MR O'GRADY: Well, in this case there's a specific definition of party for the purposes of the third step in the disputes procedure, and that's where I was going to head. It may be that I'm better waiting until you have the disputes procedure to go to that. But in essence, the position under the disputes procedure is this; there are two levels which are internal means of dealing with a grievance, and then there is a third level which is step 3 in the procedure which enables a party - with a capital P - to bring the matter to the Commission. A party is defined in the definitions in the agreement as being the state or the CPSU.

PN87

THE COMMISSIONER: I see. Well, we'll go to that now.

PN88

MR O'GRADY: Clause 12 is the disputes procedure, Commissioner. You'll see that - - -

PN89

THE COMMISSIONER: Sorry, which agreement are you looking at?

PN90

MR O'GRADY: At the Victorian Public Service Agreement 2004.

PN91

THE COMMISSIONER: Yes, thank you. Yes, just a moment. Mr O'Grady, whilst I'm waiting for the agreement, could I perhaps ask you this question? In the letter that's attached to the submissions of Mr Millar, there's a letter from Mr Vines, the Public Sector Standards Commissioner. Mr Vines declines to conduct a review on the basis that the matter could more appropriately be the subject of proceedings in any court or tribunal. He appears to do that, and I won't travel into the area of what's meant by his reference to the Commission, but he appears to do that, having referred to the Commission. If you're correct in your application, does that mean there's no basis for Mr Vines refusing to conduct a review?

PN92

MR O'GRADY: I don't know the answer to that, Commissioner. It may be that there is an avenue through which the applicants can explore further review. I don't know the answer. I can take instructions and - - -

PN93

THE COMMISSIONER: Well, why don't I just adjourn for 10 minutes and I'll track down the agreement and you track down the answer to that question.

PN94

MR O'GRADY: Yes, Commissioner. Certainly.

PN95

THE COMMISSIONER: I'll adjourn briefly.

<SHORT ADJOURNMENT [10.43AM]
<RESUMED [10.58AM]

PN96

THE COMMISSIONER: Now, Mr O'Grady?

PN97

MR O'GRADY: It's a question of who goes first, Commissioner. Would you like me to answer your question first or would you like me to go to clause 12 of the agreement? I'm happy to answer the question.

PN98

THE COMMISSIONER: Thank you.

PN99

MR O'GRADY: Perhaps I should just explain the role of the Public Services Commissioner, Commissioner. The role of the Public Services Commissioner is one of giving review of certain events that occur within the public sector, being the state public sector. The Public Sector Standards Commissioner derives those functions from the Public Sector Management and Employment Act which is not surprising, and he is limited by that Act in what he can do. In essence, he has the power under section 64 of the - I'm sorry, the Public Administration Act 2004 is the relevant Act that creates his office and section 64 of the Public Administration Act states:

PN100

A public sector employee is entitled to have an action taken by a public service body that relates to their employment reviewed in accordance with regulations and standards issued by the Public Sector Standards Commissioner.

PN101

So the Public Sector Standards Commissioner can issue regulations and standards in relation to the review of actions taken by a public service body. Relevantly, the public administration review of actions at regulations 2004 provides for a referral to the Public Sector Standards Commissioner by an employee. It says that an employee may, by notice, require a public service body head, head of department, to refer an application for initial review to the Public Sector Standards Commissioner for review of the process for the initial review. If the employee considers that the process was (a) unfair or (b) failed to comply with the Public Administration Act, the regulations or standards issued under the regulations.

PN102

So the Public Sector Standards Commissioner has limited powers of review, only to review the process. So it's the administrative review, and that's not where we're at in this matter.

PN103

THE COMMISSIONER: Yes. All right, I have the two relevant clauses, the definitions party and the disputes and grievance process.

PN104

MR O'GRADY: Thank you, Commissioner. You will see that the disputes procedure essentially has three steps in it, in 12.1. Starting at 12.1:

PN105

A dispute or grievance must be dealt with in the following manner.

PN106

The first is the aggrieved employee raise it with his immediate supervisor. An employee is defined in clause 3.7 in not unsurprising terms. It's an employee of the Crown under the Public Sector Management and Employment Act. 12.1.2:

PN107

If the matter is not settled, the employee can require the matter be discussed with another representative of the employer.

PN108

Again, employer is defined as the State of Victoria acting through its agents, being the relevant agency head in which the employee is employed. Sorry, to be discussed with another representative of the employer appointed for the purposes of this procedure, the employee is entitled to have a representative including an accredited representative of the CPSU. Then the third step:

PN109

Once the relevant internal review process is undertaken and is unable to solve the grievance, it may be referred by either party.

PN110

And party there is a capitalised P and it is a term that is defined in clause 3.9 as the State of Victoria or the CPSU. Importantly, the word "party" is used there, not the employee or the employee or the employer, to the Commission for resolution. And it gives the Commission powers at both conciliation, and if necessary, arbitration. So our point is that only the CPSU can bring a dispute to this Commission under this clause.

PN111

THE COMMISSIONER: Or the State of Victoria.

PN112

MR O'GRADY: Or the State of Victoria. Yes. Now, the application that is before the Commission is an application that has been lodged on behalf of the three individuals. I'm not sure what is on the Commission file, but I must say I have been given a copy of a document that is quite substantial, but it has a cover sheet. It is headed, Application by John Fleming, Phil Moden and Simon Adcock to the Australian Industrial Relations Commission relating to form R47 Rule 66 dated 25 October 2005. That is the document that I have, and as I understand it, is the document that initiated this proceeding.

PN113

THE COMMISSIONER: Well, the document on the file is, Notice under a Dispute Settlement Procedure in an Agreement. Notice is given by Simon Adcock, John Fleming, Phil Moden, the applicants.

PN114

MR O'GRADY: Yes. So on that basis, Commissioner, the process by which this proceeding is commenced has been on application by the three individuals, not on application by the State of Victoria.

PN115

THE COMMISSIONER: Or the CPSU.

PN116

MR O'GRADY: Or the CPSU; that's right, Commissioner. We say that's a pretty powerful point and that knocks the thing on the head, but Mr Millar seeks to address that by saying, well, somehow by reason of this correspondence between the representative of the applicants and the Public Services Commissioner, we have somehow referred the dispute to the Commission. That just can't be, and it's not borne out by the correspondence. If you have Mr Millar's submission handy, Commissioner, the two pieces of correspondence that are relied upon, the first is dated 9 September 2005 from the Public Sector Standards Commissioner and the words that are relied upon are identified at paragraph 4 of Mr Millar's submission. Then his submission is fleshed out in paragraphs 5 and 6.

PN117

The letter, in its terms, is nothing more than an invitation to Mr Von Bibra to make appropriate application before the Commission.

PN118

THE COMMISSIONER: You say in any event that the letter is misguided?

PN119

MR O'GRADY: Well, we don't concede that it's misguided, Commissioner.

PN120

THE COMMISSIONER: It must be, mustn't it, on your submission?

PN121

MR O'GRADY: Well, it's a decision that was taken at the time by the Public Sector Standards Commissioner.

PN122

THE COMMISSIONER: And the Acting Deputy Secretary, Resources and Regional Services.

PN123

MR O'GRADY: Piggy-backing off the previous correspondence.

PN124

THE COMMISSIONER: Yes.

PN125

MR O'GRADY: But on any reading of the words in both of those pieces of correspondence, all that they can amount to is an invitation to Mr Von Bibra. It's for the applicants to work out how that invitation can and should be taken up in the appropriate way, and then be met with whatever arguments are raised in the Commission. So Mr Millar then seeks to bring in (a) a principle of contra proferentem. In order to - I feel a sense of déja vu - bring that principle into play there has to be some ambiguity in the correspondence, Commissioner. It is submitted that there is no ambiguity in the correspondence. If you look at the letter from Mr McDonald, the acting deputy secretary, the relevant part of which is quoted in paragraph 3 of Mr Millar's submission:

PN126

The correspondence from Mr Vines refers you to the Commission. Similarly, I am advised that if you wish to pursue the matter further, you should approach the Commission.

PN127

There's nothing ambiguous about that. It's an invitation. It's entirely up to Mr Von Bibra as to what is the next step. The relevant authority that Mr Millar refers to is Maye v Colonial Mutual Life Assurance. I must say, Commissioner, we have a spare copy of Mr Millar's authorities and I, in heading off a number of his submission at the pass, will need to refer to the authorities, so I'm happy to hand up a copy of the authorities to which Mr Millar refers in his submission. I don't need to go to Maye other than to say that was a case that involved an insurance contract and we all know that specific duties apply in relation to insurance contracts, but it's accepted that the rule applies more generally in relation to contract law.

PN128

It's stretching the limits to say that the contra proferentem rule should apply to an exchange of correspondence between disputing parties which is not associated with the contract.

PN129

THE COMMISSIONER: Parties small p?

PN130

MR O'GRADY: It’s parties small p, Commissioner. Thank you for the correction. The other thing that Mr Millar seeks to do is attach to the Public Sector Standards Commissioner authority to bind the state and it's submitted on the basis of the provisions in the Public Administration Act and in particular the sections which confer functions upon the Public Sector Standards Commissioner which arise from sections 61 and 62, to promote standards of integrity and conduct in the public sector. His role is not one to bind the state in terms of a commitment to a particular process. It's a process of review, et cetera. He doesn't have the authority. That is apparent from his letter. He makes the point in his own letter. He says:

PN131

My powers under regulations are restricted to reviewing a process by which an initial review of an action has been undertaken by a public service body.

PN132

This is the third-last paragraph on the first page, Commissioner.

PN133

THE COMMISSIONER: Yes. Go on.

PN134

MR O'GRADY: So it's apparent on the face of the letter that he cannot, on behalf of the State of Victoria, refer a matter to this Commission. We come then, Commissioner, to - - -

PN135

THE COMMISSIONER: Can the department?

PN136

MR O'GRADY: Well, yes, by reason of the definition of employer in the agreement, is the state operating through - is the state as a party operating through the head of an agency, subject to our submission about the way in which the disputes procedures operate.

PN137

THE COMMISSIONER: I understand, yes.

PN138

MR O'GRADY: So the fact is, Commissioner, there has been no referral by the state. Mr Millar's estoppel argument seems to operate at two levels. One is, having referred the matter to the Commission the state cannot now take it away. We have two responses to that; one is referring back to our earlier submission. We haven't referred the matter to the Commission, and two, if we have referred it to the Commission, like any applicant in any proceeding before the Commission, it's open to withdraw the application at any point in time.

PN139

THE COMMISSIONER: Subject to leave? That was an upward inflection at the end of the question, not a statement.

PN140

MR O'GRADY: Well, not necessarily so, Commissioner. Not necessarily so. I can think of a range of applications before the Commission that - - -

PN141

THE COMMISSIONER: Yes.

PN142

MR O'GRADY: So that brings us next to what I understand to be a second string of the estoppel argument, that in some way the correspondence stops us from raising a jurisdictional objection to a matter which is referred by the applicants to the Commission. Now, there's two answers to that. One is going back to the general principles that I took you to, and that is that the parties can't give the Commission jurisdiction when it doesn't otherwise have it, and I'll take you to a couple of the authorities that Mr Millar refers to, to show you that estoppel doesn't operate to give the Commission jurisdiction where it doesn't otherwise have it. The second is that if the principles of estoppel do operate, then they're not satisfied in the circumstances of this case to the extent that there's been no change in the position of the individuals.

PN143

There's no detriment that has been counter played, and this is a result of the state's action. Going to the first of those responses, that is that estoppel cannot operate to give the Commission jurisdiction when it doesn't otherwise have it, if you go to tab 5 of the folder of the decision to which Mr Millar refers, is the decision of Ersetic v GB Tooling, that of Kaufman SDP. In particular, to paragraph 9 where his Honour refers to the Full Bench decision in Qantas, doubting that estoppel was available to found jurisdiction. In that case, the Full Bench found that each of the employment contracts in issue was for a period of a specified time. As the terminations of employment were not at the initiative of the employer, the issue had arisen as - sorry, was whether Qantas was estopped from relying on the jurisdictional fact.

PN144

The Full Bench considered it unlikely that a party could be estopped from asserting a fact that demonstrates lack of jurisdiction:

PN145

Such a course, if allowed, would result in the Commission exercising powers in a situation where it had no jurisdiction to entertain the application.

PN146

That's the very position that we're in here. That is, the argument that Mr Millar puts seeks to confer upon the Commission jurisdiction which it does not otherwise have by reason of the application of the principles that I referred to earlier. So the estoppel argument cannot operate. Support from that can also be gained from another decision of Kaufman SDP in Logica, which is behind tab 8 of the folder and paragraph - well, in essence paragraphs 30 to 33, but you will see there the approach that his Honour takes, that is adopted in the Ersetic case, rather than deciding the estoppel, looks at the matter in terms of equity and good conscience, et cetera. But the same principle applies.

PN147

The Commission only has power to act of course in accordance with equity, good conscience and the substantial merits, if it has jurisdiction to act. So it can't use that part of the Act to give it jurisdiction that it would not otherwise have. That is our submission in relation to the estoppel argument insofar as it says we are stopped from arguing jurisdiction as a result of our correspondence with the applicants. That's the first limb of the argument. The second limb of the argument is that the principles in relation to estoppel are simply not made out. If I can take you to the Walton Stores case, which is again in the folder that Mr Millar has provided - sorry, which we have provided, which is tab 2, and the well-known passage of Brennan J at pages 428 to 429 which is, if you like, the six-point test for the application on estoppel, starting at the paragraph at the bottom of page 428:

PN148

To establish an equitable estoppel, it is necessary for a plaintiff to prove that. The plaintiff presumed that a particular level of relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them, and in the latter case, the defendant would not be free to withdraw from the expected legal relationship.

PN149

There is an immediate issue with that, and that is that the plaintiff can't create an expectation of a legal relationship or a legal right that does not exist. The second point is that we induced the plaintiff to adopt the assumption or expectation. Well, I think I have some difficulties there. I understand that the letter could be read to - buy the applicants to say, well, you've got some rights at the Commission, although what we do say is that all the letter does is invites them to explore their rights.

PN150

THE COMMISSIONER: What do you say about the conciliation before Hamilton DP?

PN151

MR O'GRADY: Well, in order to resolve the dispute, the state - - -

PN152

THE COMMISSIONER: Did the deputy president have the power to conciliate?

PN153

MR O'GRADY: The answer to that is probably no, Commissioner.

PN154

THE COMMISSIONER: When was the jurisdictional point raised at this time?

PN155

MR O'GRADY: Well, one's reluctant to raise matters that are discussed in conciliation, Commissioner.

PN156

THE COMMISSIONER: No, no. I just wondered whether it was at an early stage of the proceedings?

PN157

MR O'GRADY: It was at an early stage, yes. As is often the case in proceedings before the Commission, there's always a jurisdictional matter lurking in the background. In fact, it happens in the unfair dismissal jurisdiction all the time.

PN158

THE COMMISSIONER: Yes. No, no, that was the point of my question, to whether or not the applicants were put on notice that there was a reserved jurisdiction point.

PN159

MR O'GRADY: The third element in the establishment of the estoppel is that the plaintiff acts or abstains from acting in reliance on the assumption or expectation. There is nothing to suggest that the applicants in this case have acted in some way or abstained from acting in some way in reliance on the alleged representation. The next one is the state knew or intended the applicants to do so. The final one is where the real difficulty arises, Commissioner, and that is that the plaintiff's action or inaction will occasion detriment if the assumption or expectation is not fulfilled. Sorry, that's the fifth point. There is no detriment. If a right doesn't exist, it doesn't exist. If there is some other avenue, then there's nothing to suggest that other avenue does not still exist, so there is nothing being lost.

PN160

Sixth, we have failed to avoid the detriment, whether by fulfilling the assumption or expectation or otherwise. Well, the fact is, we can't fulfil the assumption for the very reason that we can't give the Commission jurisdiction it doesn't otherwise have. That is the submission in relation to the estoppel argument. In essence, the final limb of the estoppel argument is tantamount to the parties creating jurisdiction for the Commission, which they can't do. If I can turn to the respondent's outline, and in particular the second argument in the respondent's outline. That is that the general disputes procedure in clause 12 does not apply because this argument deals with the matters raised in paragraphs 12 and following of Mr Millar's submission.

PN161

We understand the application of the principles from Big W Discount Stores; that's undisputed, Commissioner. But what we say is that where an agreement provides for the specific review of decisions by way of the appendix and the review process, which was borne out of course of the Exceptional Matters order which no doubt you're very familiar with, Commissioner. It's apparent that the intention of the parties was that this review process was a code and it commits to a process and that's it. The general disputes power is exactly that; a general disputes power. There's nothing in the general disputes power that suggests that the procedure under the appendix is anything other than a code.

PN162

If the parties wanted to give the Commission jurisdiction to deal with matters arising from the application of that process, then they could simply put a clause in appendix 2 or in the original exceptional matters order giving the Commission that role and they haven't done so.

PN163

THE COMMISSIONER: No. As I apprehended the argument - I'm sorry, were you referring to the industrial general disputes power?

PN164

MR O'GRADY: No, sorry. I was referring to a general disputes procedure in clause 12.

PN165

THE COMMISSIONER: I see, yes. Under LW?

PN166

MR O'GRADY: I'm juxtaposing the general and the specific.

PN167

THE COMMISSIONER: Yes. I follow.

PN168

MR O'GRADY: So if the parties wanted to give the Commission jurisdiction, they would do so in appendix 2 and they haven't done so. The third proposition we make is this, Commissioner, that really what this is all about is an attempt to reopen an avenue that's already been closed. That is, the review of the merits of the decision that's been made in accordance with the process set out in appendix 2. Commissioner, if I could take you to our folder of authorities - - -

PN169

THE COMMISSIONER: That point is no different from the points you make that you say the Commission has no jurisdiction?

PN170

MR O'GRADY: The two are slightly different. One is that - sorry. Do you mind just repeating that? I think I was predicting what you were going to say and I didn't quite listen to the final part.

PN171

THE COMMISSIONER: The point that you just make is no different from that where the Commission has no jurisdiction, isn't it?

PN172

MR O'GRADY: Ultimately it subsumes it, but it's a back-up point in that it
is - - -

PN173

THE COMMISSIONER: If the Commission had jurisdiction under the disputes procedure, under your submission then any matter unless closed by the agreement would be amenable to the disputes procedure.

PN174

MR O'GRADY: Any matter under the agreement apart from that which is dealt with by the review panel under appendix 2 is our first position. Our second position is that it's closed.

PN175

THE COMMISSIONER: Yes.

PN176

MR O'GRADY: So it's waves of attack, if you like.

PN177

THE COMMISSIONER: Yes. I follow.

PN178

MR O'GRADY: Three waves of attack. I'm at the third level of those waves of attack at the moment. In particular, I want to go to the decision of McCarthy DP which is at tab 2, the ANF case.

PN179

THE COMMISSIONER: In yours or Mr Millar's authorities?

PN180

MR O'GRADY: In my authorities, Commissioner. That is a matter which concerned the review of the position of Director of Nursing in the Western Australian Health Service. The state undertook a review and decided to abolish the position of director of nursing. The agreement committed to a process for the review, but did not provide for dispute over the process or disputes over the outcome of the process, if you like. The relevant clause in the agreement is set out in paragraph 24 of the decision:

PN181

Notwithstanding the no further claims commitment, the government will conduct a review of the work value of senior nurses. The review will be completed by the end of January 2002.

PN182

Then the disputes procedure, the relevant parts of the dispute procedure, are set out in paragraph 32. It's essentially the equivalent of our step 3, clause 19.1.5, although there is no capitalised reference to parties there. Then paragraph 34, his Honour sets out the basic principles. Then over the page at paragraph 40, his Honour says:

PN183

It's worth noting that there is no clause in this agreement that concerns requirements or procedures with which the parties must comply with respect to decisions by the minister that are under consideration or have been taken which may result in changes to the workplace of the organisation and which may have implications for individual employees or classes of employees.

PN184

There was another issue in this matter. That is, that there was a similar provision in the award, but the award was overridden by the certified agreement. Then at paragraph 43:

PN185

What is clear, however, is that clause 10 of the agreement required nothing other than a review to be undertaken and implemented. The requirement was one of a commitment to a process. Not only has that occurred, but disagreement regarding the outcome of that process was the subject of different proceedings in relation to variation of the award.

PN186

What we say, Commissioner, is that this is a similar position. It's a review that has been conducted and therefore there's nothing out of that review which can be used as a vehicle to establish a dispute over the application of the agreement, for the same reason.

PN187

THE COMMISSIONER: Well, except it's a narrow reading, isn't it, of a dispute settlement process, as to the proper application of an agreement. For such a reading, you could extend even further that where a clause makes provision for something, that determines its four corners.

PN188

MR O'GRADY: Well, it needs to be assessed in light of the provisions in the agreement, all the basic principles, so I don't need to repeat those. But it's a fair reading, Commissioner, and his Honour was versed with all of the relevant authorities, understands the principles obviously and says that an application which disputes the outcome of a process which the parties have committed to under an agreement is not a dispute over the application of the agreement.

PN189

THE COMMISSIONER: Yes, I follow.

PN190

MR O'GRADY: The final submission that Mr Millar makes is that you could always use your general award making powers. There's a number of - - -

PN191

THE COMMISSIONER: He goes a little further than saying it's the vibe.

PN192

MR O'GRADY: Yes. Well, I must say, Commissioner, we put it in the category of the vibe. There's a number of things. I have included in the folder of authorities two cases which deal with the issue of the need for collective dispute for the purposes of the exercise of the Commission's powers.

PN193

THE COMMISSIONER: Yes, but that's easily overcome. I just call the matter on with my own motion.

PN194

MR O'GRADY: Well, you might be able to do that, but the CPSU obviously would have to be involved in that process and everything like that.

PN195

THE COMMISSIONER: No, I understand that.

PN196

MR O'GRADY: But, Commissioner, the point is a basic one. It's been overcome in the old unfair dismissal jurisdiction by creating a broader dispute, but in this matter as it currently stands before you, it is a dispute between three individuals about their individual rights as against the employer and there's no - - -

PN197

THE COMMISSIONER: I don't even need to call the matter on, on my own motion. There would be sufficient ambit within the original log which gave rise to the award to further part settle the matter.

PN198

MR O'GRADY: Well, that gives rise to a range of other issues and I don't deal with this argument in its entirety today because it's another matter and if that is the avenue that the applicants wish to take, then they should take it and we'll deal with that, but one can imagine some other hurdles being in the way. If what is sought is a variation to the existing award, then obviously the parties to the existing award have to be notified. If what is sought is a new award, then National Wage Case principles and First Award principles would have to be applied. The stating point is status quo; well, status quo is the position that things are currently in, so there's an argument that you're limited to what is already there at the moment.

PN199

Then I can imagine a range of other arguments being put about whether the Commission is exercising its award-making powers to set minimum terms and conditions or whether it's doing something more than that. On one view, it might be said to be a paid rates award. It's essentially an award that says that you have to do something under a certified agreement. But I raise those matters simply to shed enough doubt on that suggestion to say that it's not appropriate for you to deal with them today. You don't have that sort of application before you and we'll meet that if we have to at some other stage.

PN200

THE COMMISSIONER: Yes, I follow.

PN201

MR O'GRADY: Just one final thing, Commissioner. In all of the material that has been filed by the applicants, it's still not apparent how this dispute is characterised and what order is sought. We have put our submissions on jurisdiction in the face of that lack of definition if you like. We've dealt with really two cases. One is an application for some sort of order that the applicants be designated at a particular classification, and the other is that there is, if you like, some effort to find error in the decision of the review panel, but it's not quite clear to us exactly what is sought.

PN202

THE COMMISSIONER: Aren't they both the same?

PN203

MR O'GRADY: Well - - -

PN204

THE COMMISSIONER: As I apprehended the matter it's simply straightforward, that the agreement provides for wage rates, attached to those wage rates are certain classification standards. The proper application of the agreement is putting people - the agreement applies to persons who perform this work and - - -

PN205

MR O'GRADY: It may give rise to an issue as to whether or not there's an exercise or judicial or arbitrary power.

PN206

THE COMMISSIONER: Well, I don't think so. I understand the position you are - - -

PN207

MR O'GRADY: Under the private arbitration powers, I put that to one side, but under award-making powers - - -

PN208

THE COMMISSIONER: That's a different matter.

PN209

MR O'GRADY: - - - is a different matter, yes.

PN210

THE COMMISSIONER: Yes.

PN211

MR O'GRADY: Those are the submissions, if it please, for the respondent.

PN212

THE COMMISSIONER: Thanks, Mr O'Grady. Mr Millar? Do you need a five-minute break at all, just to collect your papers?

PN213

MR MILLAR: I'm happy to roll on, Commissioner, but if you would like a break?

PN214

THE COMMISSIONER: No, no.

PN215

MR MILLAR: Thank you for the opportunity anyway, but I'll continue on.

PN216

THE COMMISSIONER: I thought you had further old ground in which to plough.

PN217

MR MILLAR: There's plenty that could be said, and thankfully I've already said much of it in the written submissions and I primarily rely upon that document. The primary way in which the applicants submit that this matter is properly before the Commission and that the Commission has jurisdiction to consider it is the fact that the respondent, the State of Victoria, has referred this matter to the Commission. Now, quite understandably the focus has naturally fallen upon the two letters that were attached to the submissions. Those letters clearly tell the applicants that a matter may be pursued in the Commission. The letters point the applicants to the Commission and in my submission, they're capable of no other construction than saying that the agreements should be pursued in this place. The letter from Mr Vines in particular - - -

PN218

THE COMMISSIONER: Would it assist if I mark your - - -

PN219

MR MILLAR: Yes, if I could tender them?

EXHIBIT #AFM1 SUBMISSIONS AND ATTACHED LETTERS

PN220

MR MILLAR: Now, the letter from Mr Vines in particular is quite clear in saying, go to the Commission:

PN221

The AIRC would also be able to consider the substance of your clients' grievance.

PN222

If the State of Victoria is saying that they need to assent to the matter going before the Commission pursuant to clause 12 of the agreement, then you find that assent in these letters, in my submission.

PN223

THE COMMISSIONER: Well, they go one step further. They say even if that's read that way, they don't give it power. Or it's withheld, whichever.

PN224

MR MILLAR: That's not the way referrals operate. If a referral of a matter is given to the Commission to exercise its powers under clause 12 which includes both conciliation and arbitration, it can't be revoked. It can't be revoked halfway through, in my submission. If the wind isn't going your way, if you pull the plug halfway through and avoid an undesirable outcome, then that is simply not the way that arbitration is, or indeed the resolution of industrial disputes operate.

PN225

THE COMMISSIONER: So having started in the conciliation, you say you now can't - - -

PN226

MR MILLAR: It has a life of its own and the fact that the State of Victoria may no longer wish to accept the consequences of their earlier action, is itself of no consequence because they have committed themselves to a process which they must now follow. They set the ball rolling, they said, "Go to the Commission to pursue it. The Commission will also be able to consider the substance of your client's grievance." My clients did just that and now the State is attempting to retract from the position it had adopted and held out to my clients.

PN227

THE COMMISSIONER: One of the practical consequences of that is that rather than the parties having a venue for what I'll loosely call conciliation, it would mean that jurisdictional questions are taken unpressed at the very beginning.

PN228

MR MILLAR: Well, that should have been the case. At the very beginning, if one goes to the very beginning of the case, not only was there no jurisdictional issue raised, not only didn't they claim jurisdiction, but quite to the contrary they encouraged the action. Mr Von Bibra's letter, or the letter to which this letter from Mr Vines responds, was obviously seeking to explore alternative avenues for resolution and it was the Public Sector Standards Commissioner who directed the applicants to this place. Now, there is no formal procedure laid down in clause 12 as to how the referral is to take place. There's no form that needs to be completed, nothing that says that the parties have to indicate their approval to the process in a particular way. It just says that either party can refer it.

PN229

Now, in my submission, there can be no construction of these letters other than telling the applicants that the matter was - may be referred by either party to the Commission for resolution by conciliation and if necessary arbitration, there can be no construction of these letters other than saying that the State of Victoria had referred the matter to the Commission. Now, my learned friend points to supposed limits in the authority of the Public Sector Standards Commissioner to permit the State of Victoria in that way. The relevant sections of the Act which are said to limit the Commissioner's authority before the Commission today, and I'm not aware of the proper construction of the legislation to which my friend has referred, but as a matter of principle, the commissioner was certainly cloaked with authority.

PN230

He speaks in a letter which bears the crest of the State of Victoria. He was providing advice on the way in which a review of the position of the applicants would be pursued and said in the course of that, that the Commission would be able to consider the substance of the grievance. He certainly had ostensible authority for the position that he adopted. There was absolutely no reason why the applicants would do anything other than accept that the commissioner knew what he was talking about and had every right to adopt the position that he did. But more particularly, the party, the defined capital P party in the agreement is not the department, not the department head, not the minister, but the State of Victoria. The commissioner, in my submission, would be in a position as an emanation of the Crown, and as I've said in the submissions, in right of the State of Victoria to bind the State of Victoria to a particular course.

PN231

It is of relevance that the very same Mr Vines, I note, was part of the negotiating team for the 2004 agreement which was the one paragraph that I didn't object to in the statement which isn't before the Commission. But the very same individual was involved in negotiating this agreement on behalf of the State of Victoria. Now, in my submission - - -

PN232

THE COMMISSIONER: I'm not meant to take anything from that, am I?

PN233

MR MILLAR: It's merely an observation.

PN234

THE COMMISSIONER: Yes. I thought as much.

PN235

MR MILLAR: That suggests that far from there being material before the Commission indicating that this commissioner didn't speak on behalf of the State of Victoria, all the indications are there that he did. Lest there be any doubt over whether the State of Victoria was committed to the course adopted by the commissioner, you then have the letter from the department which effectively adopts the content of the commissioner's letter. Mr McDonald, the Acting Deputy Secretary, Resources and Regional Services, says towards the end of the letter, 6 October:

PN236

There is no appeal within the department against outcomes of the work value review panel. Correspondence from Mr Vines refers you to the Australian Industrial Relations Commission. Similarly, I advise that if you wish to pursue the matter further, you should approach the AIRC to do so.

PN237

Now, that is saying that the way in which the process is taken further is to approach the Commission, to go to the Commission. It's not saying go to the union and seek to enlist their support to take the matter to the Commission. It's not saying, "We want to hear something further from you as to why the State of Victoria should exercise its rights to refer the matter to the Commission." It's simply saying, "Go to the Commission. If you want to take it further, you should approach the Commission to do so." Approach the AIRC to do so. In my submission, that can be nothing other than the department having given the necessary assent, given the green light to the matter proceeding in the Commission.

PN238

It is, in my submission, a folly to construct these letters in the way that my learned friend urges upon you to say that this is an invitation to make an appropriate application. Well, there's nothing in there about inviting an application. It's simply saying that the applicants should go to the Commission and the Commission would be able to consider the substance of the grievance. Once that position was adopted, even if it was ill-advised, even if it was based upon incorrect assumptions, even if it was based upon a lack of awareness of the limited rights of parties to take matters to the Commission, it was still the way in which the State acted in that time. In order to bring the matter on before the Commission, what they needed to do was assent to this matter going to the Commission.

PN239

Not only did they assent to it, but they urged the process on, and in my submission that is sufficient basis to enliven the jurisdiction of the Commission. My learned friend refers to the form that was filed in the Commission to formally commence this process and that form was undoubtedly one that was filed on behalf of the applicants. It wasn't filed by the State of Victoria. But that is a purely formal issue in the sense that the referral to the Commission is not constituted by that application. That application is merely to alert the Commission, to formally start it pursuant to the rules of the Commission. That document doesn't need to have the status of a referral pursuant to the agreement. The referral in the agreement doesn't need to take any particular form, and in my submission, the referral under clause 12 of the agreement was constituted by the stance that the department and the Public Sector Standards Commissioner took in September and October.

PN240

Then, acting upon that referral, the applicants filed a document in the Commission. So to the extent that there is any issue there, then obviously the forms used in the Commission are able to be departed from by the Commission. Leave can be given from any departure from the rules and if that is said to constitute some irregularity for the basis of the commencement of the proceeding, then that defect can be cured. In my submission, the fact that the form came from the applicants and not from the respondent is a point of no consequence because that form was merely filed after the event of the referral by the department to the Commission.

PN241

Now, the applicants submit that effectively there are two ways in which this correspondence gives rise to a right to pursue the matter in the Commission. The first is just on the natural meaning of the letters and the fact that they constitute a referral pursuant to clause 12. There's no particular submission that I need to make beyond saying that these letters constitute a referral for the purposes of clause 12. The second argument, though, is that the conduct gives rise to an estoppel, from the respondent's course of conduct which was relied upon the applicants - the respondent cannot deny that it has referred the matter to the Commission. Now, Commissioner, there is obviously mixed case law on the application of estoppel in the Commission and I'm not going to need to take your Honour over the authorities in any depth.

PN242

I should say before moving on that my learned friend has already referred to the case of Maye v Colonial Mutual Life which is the longstanding High Court authority on contra preferendum. I don't need to go further other than to say that it's well-established that it's a proper approach for interpretation that a contractual document should be construed in the manner against the interests of the person who created the document. To the extent that there is any uncertainty in the application of clause 12, of course it's an agreement which is not the work of my clients but is one which is the combined work of the department and the CPSU. Any interpretation, if there's any uncertainty in the interpretation, it should be resolved in favour of the interpretation that my clients are urging. As is said by Acting Chief Justice Isaacs in that case:

PN243

Ambiguous words ought to be construed in that sense in which a prudent and reasonable man on the other side would understand it.

PN244

That's the quote that I would urge upon this Commission. But on the question of estoppel, there have been a number of decisions of the Commission and Kaufman SDP has generated a number of decisions. He has been particularly attune to the development of the law of estoppel in its application in the Commission. In Ersetic, to which - actually, I'm not sure if my learned friend did refer to it. Yes, it was referred to. In Ersetic and GB Tooling, the decision on 7 June 2002, there is a helpful summary at paragraph 5 of the operation of estoppel. The second sentence in the extract is:

PN245

The object of estoppel is to preclude the uncontentious departure by a party from an assumption from which he or she bears some responsibility and which has been adopted by another party as the basis for a course of conduct, act or omission which would operate to that other party's detriment if the assumption were not adhered to.

PN246

Then over the page at paragraph 8, his Honour echoes the sentiments of Williams DP, or refers to the decision of Williams DP in Re: Cake and Pastry Employers Association of Australia:

PN247

His Honour doubted that the legal doctrine such as equitable estoppel is appropriate for proceedings in ...(reads)... not the same as those that pertain to the Commission acting according to the requirements of section 110(2)(c).

PN248

So in my submission, although there is much authority for the proposition that estoppel is a principle of law for the courts that the Commission should be cautious about applying, it's really the label that is problematic rather than the doctrine. The doctrine of the Commission acting conscientiously, acting to prevent unconscionable conduct, is entirely in accordance with the statutory mandate given to the Commission under section 110.

PN249

THE COMMISSIONER: Subject always to the jurisdiction existing, and we are creatures of statute and we don't sit here as individuals being outraged and finding original jurisdiction, do we?

PN250

MR MILLAR: No, no. Jurisdiction exists or it doesn't, but the estoppel point or acting according to equity and conscience, in my submission, does go to the proper construction of what happened here, in that the employer, the department, adopted a particular course of conduct which it is submitted in the interests of equity and good conscience can only be viewed in a particular way, rather than an approach which effectively would deny in that form of meaning and what we say is the intended effect of what was said at the time. So the principles of estoppel are useful perhaps by analogy rather than by direct application, but they do in my submission lead to the position that the applicants are validly invoking the jurisdiction of the Commission.

PN251

My learned friend says that there can be no estoppel because there's no detriment and that the representation hasn't been relied upon. Well, without wishing to sound too cute about it, clearly there has been reliance upon the representation because proceedings have been pursued in the Commission. The applicants have engaged lawyers to act on their behalf. The lawyers who have been engaged on instructions of the applicants have moved forward on the basis of an assumption of a certain state of affairs. What has now happened is that the respondent is attempting to pull the rug out and say that that state of affairs which had been assumed is not one which is a proper basis for the jurisdiction of the Commission. Now, my learned friend says that jurisdiction had been raised from - - -

PN252

THE COMMISSIONER: It was a member of the Full Bench that found that the Commission had jurisdiction to award costs. That was subsequently overturned by subsequent Full Benches.

PN253

MR MILLAR: The power to award costs? Yes.

PN254

THE COMMISSIONER: Yes. Well, myself, Peterson J and Polites SDP held that way, and subsequently I think the then Moore VP, Acton SDP and another found there was no jurisdiction to award costs. That's not the CJ, this is
the - - -

PN255

MR MILLAR: Yes, yes. I think was that the debate over whether section 347 was permissive of costs, or whether it was a limitation on the - - -

PN256

THE COMMISSIONER: Yes, whether it was a constraint on jurisdiction or the grant of jurisdiction.

PN257

MR MILLAR: Yes, yes.

PN258

THE COMMISSIONER: I don't always put to the subsequent Full Benches to lead them into error, but there it is.

PN259

MR MILLAR: Yes, Commissioner. One issue with jurisdiction, my friend says that it was raised at an early point in the proceeding. I don't doubt what my learned friend says in the sense that maybe at some stage, although I don't have any on my instructions, there has been something said as an aside about, you know, an objection to jurisdiction, perhaps. There may have been something - I'm instructed that there was nothing said about jurisdiction at the first or second conciliation conferences, but even if there had been, it is commonplace for employers to start talking about jurisdictional objections when they come into this place. I'm not meaning to trivialise the issue, but it is commonplace for employers to say, well you know, we don't have to be there and there's no jurisdiction and all the rest of it, and for the point never to be pursued. The point was - - -

PN260

THE COMMISSIONER: I can't disagree with you on that.

PN261

MR MILLAR: Well, the point was never given any flesh until last week and on my instructions the point was never raised on my instructions at all, because I don't doubt what my learned friend has said, it was not raised in any meaningful sense at any earlier time and the only time at which the point of jurisdiction was raised was after the completion of conciliation proceedings, after the parties had already gone a long way down the path to resolving this issue by arbitration because directions had at that stage been issued. In my submission, it was simply too late for the employer to attempt to raise the issue or attempt to retract its consent which had earlier been given.

PN262

Now, it may be that because of changes in personnel of those speaking on behalf of the state in the sense of the earlier correspondence compared with those with conduct of the matter now, things were seen differently in terms of the jurisdiction of the Commission at a later time compared with the earlier time, but my point is that at the earlier time when the proceedings initiated, when the consent of the state to the process that we're now in was given, that was the time at which the state committed itself to a course and cannot later walk away from that commitment.

PN263

THE COMMISSIONER: Because it was always within jurisdiction? That's the point that you make?

PN264

MR MILLAR: It was always within jurisdiction or it was - once the jurisdiction was enlivened, the doors closed.

PN265

THE COMMISSIONER: Then it is unconscionable to subsequently withdraw from the process.

PN266

MR MILLAR: Well, it's unconscionable, and in my submission, impermissible because a withdrawal from a process which under clause 12 is clearly to deal with the issues by conciliation and arbitration means that once you've nodded to that process, you are committed to it and you can't walk out. If it were purely limited to conciliation, well nobody can be forced to do what they don't want to do in conciliation, but because the clause contemplates arbitration as well, then once you're bound to an arbitrator deciding the matter, then you're bound and you can't later retract that in the way that the state is doing.

PN267

THE COMMISSIONER: Well, what if the clause is operative? That's the agreement of - - -

PN268

MR MILLAR: That's right, pursuant to the statute and pursuant perhaps also to a private arbitration analysis. Whichever way it's looked at - - -

PN269

THE COMMISSIONER: It's an agreement finding its form in a procedure. You can't withdraw an agreement that you've made. It assists, is the point that you make?

PN270

MR MILLAR: That's right. That's right, Commissioner. Once the assent had been given to this matter coming to the Commission for determination and particularly given that it was on the basis that the substance of the grievance could be considered, "the AIRC would also be able to consider the substance of your client's grievance." That sets the stage in my submission clearly for an irrevocable ground of power under clause 12 which is properly exercised through conciliation, failing which it goes to arbitration and the state cannot attempt to walk out of the process at that point.

PN271

THE COMMISSIONER: Your argument for all those matters to follow, the gravamen of it is that the letter from the State Public Sector Standards Commissioner which was fortified by the acting deputy secretary is indeed a reference under the disputes clause.

PN272

MR MILLAR: It's a reference under the disputes clause, that's right, Commissioner. A reference under the disputes clause, the point is worth making, says that the dispute or grievance may be referred by either party to the Commission. Now, that doesn't require, in my submission, the department to be the one who signs off on the letter or rings the Commission to alert them to this grievance, or the union for that matter. It is the dispute itself which is referred by the party to the Commission. What has happened in this correspondence is that the dispute has been referred to the Commission for the applicants to take action, it was for the applicants to action, if I can use that word as a verb, the process rather than the respondent, but that doesn't change the analysis under clause 12.

PN273

THE COMMISSIONER: No, I thought the way you put it here - - -

PN274

MR MILLAR: Under clause 12, the dispute or grievance could be referred to the Commission, but in my submission, that only requires there to be some action of the state which passes the - - -

PN275

THE COMMISSIONER: Recognises the operation of the clause?

PN276

MR MILLAR: Recognises the operation of the clause and that passes the matter on, sends the matter on to the Commission, but that doesn't actually require the department to be signing the forms and sending the letters or making the telephone calls to the Commission. The fact that they have provided their assent to the applicants is sufficient to allow the matter to be commenced in the Commission. They have assented - - -

PN277

THE COMMISSIONER: Yes. No, I - - -

PN278

MR MILLAR: The critical point is that it's for the department, for the State of Victoria, to assent to the process. They can't be dragged into the Commission on a matter unless either they or the CPSU have effectively assented to the Commission being involved in it.

PN279

THE COMMISSIONER: We don't drag under LW. We welcome it.

PN280

MR MILLAR: I'm sorry, Commissioner?

PN281

THE COMMISSIONER: We don't drag people under LW. We simply welcome them.

PN282

MR MILLAR: Yes, Commissioner. I should mention on the point of estoppel
- I'll come back to that decision a little bit later. Commissioner, there are a number of decisions on estoppel that I've referred to. I don't need to take you through all of them. Perhaps I can mention the decision in Western Australian Government Railways Commission which is PO976, a decision of a Full Bench of Hancock SDP, Bryant DP and Commissioner O'Connor dated 27 May 1997. In that case, I'm not sure that your print will necessarily be the same as mine, but I have page 10.

PN283

THE COMMISSIONER: Just go to the paragraph, hum a few bars and I'll find it. It is under 4, is it, estoppel?

PN284

MR MILLAR: Yes, it's page 11 I think of the print you have, Commissioner. I have prints of all of these as well, but I don't think it's in anyone's interests if I hand mine up to you. There is reference to the analysis in Walton's and Maher. There's reference to what Brennan J said in Walton and there are six ingredients there to an equitable estoppel that it's my submission are satisfied. There is no doubt that the respondent had induced an expectation that this matter could validly be pursued in the Commission and that it was relied upon by the applicants and they're now seeking to depart from it. But further down that page there's a passage from Verwayen where Deane J said:

PN285

The doctrine of estoppel by conduct is founded upon good conscience.

PN286

In my submission, that passage brings out the parallels between estoppel as a doctrine and section 110 of the Act as a statutory charge to the Commission in quite a clear way. They both rely upon the concepts of good conscience. Of similar effect is Alcheringa Hostel, a decision of Kaufman SDP, 23 January 2004 where in paragraph 39 his Honour says, and it's only a single sentence but it is helpful:

PN287

Although considerations of estoppel do not necessarily apply in the Commission, the provisions of section 110 which provide the Commission in accordance with equity, good conscience and the substantial merits of the case dictate that I not permit Alcheringa to contend that it ever made an agreement with the unions in the terms of the document sought to be certified.

PN288

Again, I don't need to go beyond that. In my submission, that is clear authority for the proposition that estoppel by whatever name so described, whatever label attaches to it, is a proper approach for the Commission. Thomas v Logica, which my learned friend referred to, perhaps I just need to take you to paragraph 33 which is of similar effect where Kaufman SDP says:

PN289

Having regards to the requirement of section 110(2)(c) and 170CA(2) asks the question, should the Commission acting according to equity, good conscience and the substantial merits of the case, as well a ensuring that the parties are given a fair go all round, all this application to proceed on the basis of a deed of release.

PN290

Obviously the fair go all round is something which comes from the termination of employment provisions which isn't relevant here, but again it represents the proper approach.

PN291

THE COMMISSIONER: The concept of a fair go is rooted in our history.

PN292

MR MILLAR: Well, beyond doubt, beyond doubt, and I think reference to a fair go can only assist my client's case, but obviously in the sense of the direct statutory mandate is something which nowadays finds its home in the termination of employment provisions of the Act.

PN293

THE COMMISSIONER: Yes. Loty.

PN294

MR MILLAR: Loty's case, that New South Wales decision, Sheldon J.

PN295

THE COMMISSIONER: Sheldon J.

PN296

MR MILLAR: Yes. There is one other decision on estoppel which I'll hand up; it wasn't in the authorities referred to. It is in fact a decision of your own, Commissioner, from 1991. The way in which these decisions are printed off the computer does make a decision - - -

PN297

THE COMMISSIONER: I think both the decision and I are fading.

PN298

MR MILLAR: The decision does look rather faded, but unfortunately that's just the way it comes off the printer. Commissioner, at that case you, at page 4, considered the doctrine of estoppel:

PN299

I entertain serious reservations as to the applicability of the doctrine of estoppel in these proceedings, particularly where jurisdiction may not exist.

PN300

Commissioner, the developments in the law since then are in the cases that have been decided by the Commission, I don't think would change the correctness of that observation. It's still an issue on which one can express reservations in the way that you did. However, later in that decision the ultimate way in which the decision was decided was on the absence of an interstate industrial dispute which precluded the Commission from further dealing with the matter. That leads into the final part of my submissions dealing with whether this matter could be pursued as an interstate industrial - or as an industrial dispute. Of course, with the operation of section 493, in my submission there is nothing which would stop this dispute being one which could be pursued by the applicants under the ordinary dispute resolution processes of the Commission.

PN301

THE COMMISSIONER: Well, you probably don't need that in any event if you go down that path because you've got the log of claims which gave rise to the dispute which created the award. So to the extent there needs to further part-settle a matter arising out of the original log, jurisdiction exists, if it's in the log. If it's not in the log you need to go down the path you're going, but however there are some other issues that arise consequent upon such a matter - - -

PN302

MR MILLAR: Well, if one views it as a dispute which is based upon the original log, then there are some other considerations that would apply. In my submission, the analysis doesn't need to be taken that far, to look at what these other considerations are. My friend has referred to some of those considerations in terms of requiring the parties to the dispute, including the union, to be notified and matters of similar ilk. But they are procedural in nature, they're not jurisdictional, and this hearing is on jurisdiction. So in my submission, if all else fails on the earlier arguments that I have presented in the submissions - - -

PN303

THE COMMISSIONER: What's the dispute, then?

PN304

MR MILLAR: What is the dispute?

PN305

THE COMMISSIONER: How do you characterise it?

PN306

MR MILLAR: Well, there is clearly a dispute over the work value classifications that attach to the three applicants, and it involves a series of other issues. It potentially involves the issue of whether the panel, under the agreement, got the process right and the decision right. It also involves the substantive issue as to whether the applicants are properly characterised at level 6 or level 7, the SDS category, but they are not issues on jurisdiction, they're issues of substance to be pursued at a later time, in my submission. But the dispute can be properly characterised as one which would enliven the jurisdiction of the Commission.

PN307

THE COMMISSIONER: Then I'd have to make a finding to that effect.

PN308

MR MILLAR: And a finding of dispute would be required in order to pursue it.

PN309

THE COMMISSIONER: Yes.

PN310

MR MILLAR: If, as I would urge, it can be pursued as a separate dispute without necessarily relying upon the original dispute notification, section 99 doesn't need to enter the equation as the Commission is seized of the existence of a dispute which under section 89 would give rise to certain powers to pursue. Ultimately, Commissioner, my clients seek a reconsideration of the position that they have been left in. They believe they have been wrongly characterised by the process which they have followed. They believe that on a proper approach their positions would be characterised at the SDS level. If you have an SDS category, their's is the sort of positions that should be at that level. Now, my clients are not particularly concerned about the legal niceties of the manner in which that issue falls for determination before the Commission.

PN311

The most logical way of dealing with it is pursuant to the general grant of grievance resolution powers to the Commission under clause 12, as this dispute does relate to the application of the agreement. The agreement contains this process for the assessment of work value, it contains a panel process. My clients believe that the process is miscarried in relation to them and believe that on a correct approach a different outcome should result. Now, in my submission that is squarely within the concept of a dispute over the application of the agreement. The dispute is one which concerns the way in which the agreement is to operate. It concerns steps which were taken, and as I said in my submission, miscarried, under the agreement and it is a dispute as to the application of the agreement which we have here.

PN312

Now, that is the most logical way of dealing with it in the sense that this is a problem which arises because of the terms of a certified agreement arising from the procedure set down in the certified agreement, so the certified agreement procedure is the most logical one to adopt. But if that is not available, then because of the fact that the powers of the Commission are derived both under section 170LW and under section 89, and I've referred to the High Court having recognised that dual source of powers for section 170LW proceedings, then once 170LW falls away, then it's still possible in my submission for this matter to be pursued in the ordinary course of resolution of industrial disputes under section 89.

PN313

This has already been through conciliation of course, and in arbitrating an outcome the issue is an allowable award matter pursuant to section 89A and is properly of the type of matter which can be pursued through the dispute resolution procedure. The dispute here - - -

PN314

THE COMMISSIONER: Hasn't it been settled by the making of an award?

PN315

MR MILLAR: With the - well, the award that was made with the original dispute was only a part-settlement.

PN316

THE COMMISSIONER: Yes, I'm sorry. Yes, I follow. Yes. I didn't mean the jurisdiction was exhausted. The making of an award with classifications and wage rates attached to it was part-settled and you say that your client's position in the award needs to be determined? Is that what you say?

PN317

MR MILLAR: Yes, for the purposes of section 89A(2), the first allowable award matter in subsection (a) is classification of employees as skill-based career paths. This is exactly what this dispute is about, so if it's necessary for the matter to be resolved by arbitration as appears to be the case, then this matter is something - or this issue is something which would be amenable to relief pursuant to the exercise of the Commission's powers under section 89A(2)(a).

PN318

THE COMMISSIONER: Yes, I follow.

PN319

MR MILLAR: Just to finish off, I mentioned before about the dispute being about the application of the agreement. The Big W case, a decision of Watson and Kaufman SDPs, and Commissioner Foggo of 12 November 2002 provides support for that proposition. Paragraph 30:

PN320

The agreement plainly commits the parties to working towards and maintaining a healthy and safe work environment. The dispute about how that is to be achieved is a dispute over the application of the agreement. The Commissioner erred in finding to the contrary.

PN321

I don't need to go further on that, Commissioner, but in my submission, this dispute is clearly one which is as to the application of the agreement.

PN322

THE COMMISSIONER: Yes.

PN323

MR MILLAR: The decision of Charles Sturt University v NTEU which my learned friend has referred to is authority for the proposition at paragraph 10 of that decision, and I've referred to it in my written submissions:

PN324

When the Commission acts a private arbitrator under the dispute settlement procedure in a certified agreement, it does so pursuant to section 89A and an approval given to section 170LW of the Act.

PN325

In my submission, that leaves room for the continuation of the role of the Commission under section 89, if section 170LW is not attracted, and of course, we only get to that part of the analysis if the section 170LW procedure is inapplicable in the present circumstances.

PN326

THE COMMISSIONER: Yes.

PN327

MR MILLAR: I've also referred to Finance Sector Union v GIO Australia. I don't need to take the Commission to that decision. It provides some assistance on the relationship between section 89A, or section 89, and section 170LW, but in my submission, the approach of the Commission in that case is supportive of the view which I urge upon the Commission. Commissioner, this matter is one which in my submission validly invokes the jurisdiction of the Commission. The conduct of the respondent has been such as to enliven that jurisdiction. The applicants are only here because the respondent has pointed them in that direction and in fact has undertaken a course of action which, it is my submission, was the initiation of the proceeding in this place.

PN328

They shouldn't be permitted to retreat from the position that they adopted at the outset. The process of conciliation and arbitration has commenced, but has not yet been completed. The applicants seek a speedy resolution of their dispute through the processes of arbitration by the Commission. If the Commission pleases.

PN329

THE COMMISSIONER: Thanks, Mr Millar. Mr O'Grady?

PN330

MR O'GRADY: Commissioner, I do wish to make a few points by way of reply. Most particularly I want to go to this issue of referral. Mr Millar in a number of submissions sort of moved in and out and seemed to use consent and referral interchangeably. The position is this; the disputes procedure in the agreement clearly imposes an obligation on the parties to consent to the jurisdiction of the Commission where the dispute is within the four walls of the clause.

PN331

THE COMMISSIONER: I'm sorry, could you say that again?

PN332

MR O'GRADY: The disputes procedure - it comes to the point you made, Commissioner. That is, we're bound by the disputes procedure in relation to the referral of matters to the Commission. We have to consent to the referral of matters to the Commission that are within the four walls of the disputes procedure.

PN333

THE COMMISSIONER: Yes.

PN334

MR O'GRADY: It's a very basic proposition. The consent to the referral to the Commission comes from the clause in the agreement.

PN335

THE COMMISSIONER: Well, no. The consent to the conciliation and arbitration comes within the clause of the agreement.

PN336

MR O'GRADY: Yes, sorry.

PN337

THE COMMISSIONER: It's not pre-consent to refer - - -

PN338

MR O'GRADY: Sorry, that's the very point. The consent to conciliation comes from the clause in the agreement.

PN339

THE COMMISSIONER: Yes, yes.

PN340

MR O'GRADY: That's the consent. Consent of itself is not enough, of course. There has to be a mechanism that brings the matter to the Commission and that is the referral. The two are different things. There is no doubt that we are bound by the consent to the extent that the clause applies. But the referral is a positive step that is something more than consent. Now, the submission is put that somehow through the correspondence we have referred the matter to the Commission. Then it's said that acting on that referral, the applicants filed their material. Well, if the referral is constituted by the correspondence and nothing further is required, there is no matter before the Commission. It actually required something to be done by the applicants. That act that was done by the applicants is itself the referral.

PN341

There's no referral without the act of the applicants. This sort of reveals the very problem that Mr Millar has to deal with arising from that correspondence and why we make the submission that all the correspondence does is amount to an invitation to refer the matter. Now, I do want to say one further thing about Mr Vines. I made the point in my submission, but I want to make sure that the point hasn't been lost on you, Commissioner. That is that the issue is the - for the purpose of this agreement is that the definition of employer in clause 3.8 is the State of Victoria acting through its servant or agent, who for the purposes of this agreement is the relevant agency head in the agency in which the employee is employed.

PN342

So even putting to one side the statutory role of the commissioner, there's that issue as well. The other thing about Mr Vines, I don't know that this was put with any vigour, but the position that Mr Vines held at the time he was negotiating the agreement of course was different to the position that he holds as commissioner. I do want to address the passage in Western Australian Rail which was behind tab 6 of the folder. Mr Millar took you to the general principles on estoppel, but if you go over to page 12 of 27 in that decision - - -

PN343

THE COMMISSIONER: Yes. What tab, I'm sorry?

PN344

MR O'GRADY: It's tab 6, Commissioner. Page 12 of 27. You will see there that the Full Bench then goes on to apply the principles using the general edict of acting according to equity, good conscience and the substantial merits, and in points 3 and 4, there the Commission - this was a situation where there was an earlier log of claims, a new award made and then the union - I think a new log of claims was served and the union then sought to revert back to the original log of claims and the argument that was raised that it was estopped from going back to the original log of claims, having served a later log of claims. Point 3 in the application of the estoppel principles:

PN345

Westrail had no right to assume that a successful appeal against the later finding of the dispute would also dispose of the '92 claim, would mean only that the '94-'95 claim would not activate the Commission's jurisdiction. The incurring of costs to achieve this result was not a relevant detriment.

PN346

The next point I make is in point number 4:

PN347

Even if the union was at fault in causing Westrail to discern mistake in their commitment which was not in fact made, the remedy of estoppel would be disproportionate to the detriment suffered.

PN348

We say that we're in a similar position, if that's the position that you find yourself where you're dealing with that estoppel argument. But the entire estoppel argument is dependent upon the referral being by the state. I want to make one point about the reference to Alcheringa, and I don't need to take you to it, Commissioner. That of course was one of those matters that involved the withdrawal or attempted withdrawal from a certified agreement that was made and of course, under that part of the Act the Commission has a statutory obligation to certify an agreement once certain stages have been reached. So that case is decided in an entirely different context.

PN349

In terms of our ability to withdraw, it comes back to the consent issue that I mentioned earlier. The consent is to the Commission conciliating or arbitrating. If we were on the receiving end of an application brought to the Commission, we can't mollycoddle the CPSU, who is the only other party who can bring the matter to the Commission, by saying we withdraw. But if it's our application, it's open to us to withdraw at any point in time. The consent is from the disputes procedure. That does not extend to arbitration of matters in respect of which a referral is withdrawn. So if the only basis upon which we can be here is a referral - - -

PN350

THE COMMISSIONER: I'm not sure it's a relevant matter for me to decide, but it would be an interesting one to do so.

PN351

MR O'GRADY: Well, I'll move on, Commissioner.

PN352

THE COMMISSIONER: Thank you.

PN353

MR O'GRADY: The only other point I want to make is the issue of onus, basic principles, the onus lies with the parties seeking to exercise the Commission's jurisdiction, and you have to be satisfied.

PN354

THE COMMISSIONER: What do you say about the last point that has been made by Mr Millar in relation to the finding of the dispute? The issue that arises there. For example, let's put the agreement out of our minds. Why wouldn't this be a classic City of Salisbury matter?

PN355

MR O'GRADY: Sorry, Commissioner?

PN356

THE COMMISSIONER: In ensuring the proper settlement or ensuring the proper parties - - -

PN357

MR O'GRADY: It requires further settlement, further part-settlement of the dispute.

PN358

THE COMMISSIONER: Well, no. It's ensuring the efficacy of the part-settlement, where I have made an award that creates a classification structure and I want to ensure the efficacy of the part-settlement of that by persons who are properly classified within that structure.

PN359

MR O'GRADY: A properly constituted dispute notification may well lead you down that path, Commissioner, but we would want the opportunity to say something about it.

PN360

THE COMMISSIONER: Yes, I understand.

PN361

MR O'GRADY: Because I've foreshadowed a range of arguments that might be raised. As things currently stand, there is not a properly-constituted notice of dispute, if you like, that requires the Commission to exercise its dispute-finding powers.

PN362

THE COMMISSIONER: Well, there wouldn't need to be a dispute found on the matter I just put to you.

PN363

MR O'GRADY: Certainly. If the dispute as notified is capable of resolution by reliance on ambit created by an earlier dispute, I accept that, but there may well be a question as to whether that is the case or whether it is seeking to enforce existing rights.

PN364

THE COMMISSIONER: That's what I said, the classic City of Salisbury type argument. It's not unusual to the Commission and that's why the High Court pronounced in the City of Salisbury for the Commission to ensure the proper settlement or part-settlement of the dispute by engaging in classification determinations, and in the case of the City of Salisbury by way of a board of reference which wasn't found to be an exercise of judicial power.

PN365

MR O'GRADY: I think that has been referred to by a number members of the Commission, classification disputes under the award-making powers.

PN366

THE COMMISSIONER: Yes. So you wouldn't need to even go near the agreement, you'd just say under the award the proper classification for these persons is grade 6 or senior technical specialists. Whatever flows from that is another matter.

PN367

MR O'GRADY: Well, the difficulty is the classifications are of course in the agreement, not the award.

PN368

THE COMMISSIONER: No, they're in the award.

PN369

MR O'GRADY: Are they in the award as well?

PN370

THE COMMISSIONER: Yes.

PN371

MR O'GRADY: I see. Well, they were in the exceptional matters order.

PN372

THE COMMISSIONER: No, they're in the new award.

PN373

MR O'GRADY: In the new award; I see.

PN374

THE COMMISSIONER: As minimum rates.

PN375

MR O'GRADY: I see.

PN376

THE COMMISSIONER: Anyway.

PN377

MR O'GRADY: It may be something for another day, Commissioner.

PN378

THE COMMISSIONER: Indeed. Thank you very much.

PN379

MR O'GRADY: Those are the submissions, Commissioner.

PN380

THE COMMISSIONER: Thanks for your assistance. All right. I thank counsel for its assistance and I'm going to reserve on the matter, give it some thought. The Commission is adjourned.

<ADJOURNED INDEFINITELY [12.49PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #VICTORIA1 OUTLINE OF SUBMISSIONS AS CONTAINED IN LETTER FROM CORRS CHAMBERS WESTGARTH DATED 24/02/2006 PN70
EXHIBIT #VICTORIA2 LIST OF AUTHORITIES PN71
EXHIBIT #AFM1 SUBMISSIONS AND ATTACHED LETTERS PN219