C2005/5921, Transcript of Proceedings [2006] AIRCTrans 443 (27 March 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 14594-1

SENIOR DEPUTY PRESIDENT HARRISON
SENIOR DEPUTY PRESIDENT CARTWRIGHT
COMMISSIONER SIMMONDS

C2005/5921

APPEAL BY CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION-CONSTRUCTION AND GENERAL DIVISION, WA DIVISIONAL BRANCH
s.45 - Appeal to Full Bench
(C2005/5921)

PERTH

10.00AM, TUESDAY, 21 FEBRUARY 2006

PN1

MR T KUCERA: I seek leave to appear for the Construction, Forestry, Mining and Energy Union, the appellant in these proceedings.

PN2

MR WATSON: I seek leave to appear for the Leighton Kumagai Joint Venture with MR KENNEDY.

PN3

MR R HOOKER: I seek leave to appear for the Australian Building and Construction Commissioner intervening.

PN4

SENIOR DEPUTY PRESIDENT HARRISON: Insofar as leave is granted is there any objection from anyone?

PN5

MR KUCERA: In relation to - - -

PN6

SENIOR DEPUTY PRESIDENT HARRISON: Leave to counsel to appear and in your case I think you sought leave too.

PN7

MR KUCERA: Yes, I did, ma'am, but the first point I wished to raise too is that on this occasion I also don't oppose the intervention of the Australian building and Construction Commissioner.

PN8

SENIOR DEPUTY PRESIDENT HARRISON: You have deprived us of one of the interesting points in the matter, maybe for another day.

PN9

MR KUCERA: Yes.

PN10

SENIOR DEPUTY PRESIDENT HARRISON: Leave is granted and your application to intervene, Mr Hooker, is granted.

PN11

MR HOOKER: If it please the Commission.

PN12

SENIOR DEPUTY PRESIDENT HARRISON: Mr Kucera.

PN13

MR KUCERA: I suppose I start my submissions by firstly saying this, we intend to be reasonably brief in this appearance this morning because we're content to rely upon the appellant's outline of written submissions which were quite extensive, save for a few points that I do wish to raise and flesh out in the next period of time.

PN14

SENIOR DEPUTY PRESIDENT HARRISON: Would you just pause for a moment and we might address the matter of submissions that we've received and make sure we have everything that each of you think we should have, but first may I ask you about transcript prior to that which is in the appeal books. The matter seems to have come on on 14 October. I think somewhere it might have been suggested that that was a mention or programming hearing. We don't have that transcript. Is it agreed that we would not be aided by having that transcript?

PN15

MR WATSON: Yes, it is.

PN16

MR KUCERA: Yes, that's right.

PN17

SENIOR DEPUTY PRESIDENT HARRISON: Very good, thank you. Now, we have received submissions from you, Mr Kucera, dated 8 February 2006, from Leighton Kumagai, dated 15 February and from the Australian Building and Construction Commissioner, dated 16 February. I think we have received from the appellant and the respondent a list of authorities also. I hope that if we are being taken to any of them you have copies for our assistances. Should we have received anything else?

PN18

MR HOOKER: Not from us, your Honour.

PN19

SENIOR DEPUTY PRESIDENT HARRISON: All right. Well, you can assume that each of us have had an opportunity to read the outline of submissions.
Mr Kucera.

PN20

MR KUCERA: Your Honour, firstly I wish to just briefly deal with the question of leave to appeal and it's our respectful submission that this case is not at odds with the approach taken by the Full Bench in the decision of Kellog Brown and Root and Others which is actually referred to in the respondent's list of authorities. Your Honour, you would perhaps recall that that case dealt with an appeal in relation to a decision by Commissioner Whelan that refused an application to cancel certified agreements under section 170MH of the Workplace Relations Act. At page 5 of that particular decision - - -

PN21

SENIOR DEPUTY PRESIDENT HARRISON: Mr Watson, do you have a copy of that?

PN22

MR WATSON: Yes, we do, your Honour.

PN23

SENIOR DEPUTY PRESIDENT HARRISON: May we have that now, it will assist us.

PN24

MR WATSON: Yes.

PN25

SENIOR DEPUTY PRESIDENT HARRISON: It's a big case. Is there other ones in here too? Yes. Now, I have interrupted you, Mr Kucera, is this appeal under section 45(1)(g) only or something else?

PN26

MR KUCERA: Sorry, the?

PN27

SENIOR DEPUTY PRESIDENT HARRISON: The appeal.

PN28

MR KUCERA: Yes.

PN29

SENIOR DEPUTY PRESIDENT HARRISON: Under what subsection, is it section 45(1)?

PN30

MR KUCERA: As I understand so, yes.

PN31

SENIOR DEPUTY PRESIDENT HARRISON: Yes to my question, 45(1)(g)?

PN32

MR KUCERA: Yes.

PN33

SENIOR DEPUTY PRESIDENT HARRISON: Thank you. Yes, proceed.

PN34

MR KUCERA: The question of leave to appeal in that particular case and I thank my friend for providing his list of authorities and authorities to you before he makes his submissions, but if you go to page 5 of that particular decision the question of leave to appeal is dealt with by the Full Bench and we'd say that this particular case is not at odds with the approach that was adopted by the Full Bench in this case for the reason that in the Kellog Brown and Root case they were dealing with an appeal in relation to the construction and application of section 170MH and the Full Bench noted that it raised important questions in relation to the application of that particular provision in the Act.

PN35

We would say that in this particular case the appeal that we are pressing raises important questions of construction on the application of section 127, more particularly, the application of the jurisdictional prerequisites under section 127. One of the points that is raised at paragraph 18 of the decision which appears at page 5 is, and the Full Bench said this:

PN36

An application under section 170MH requires the exercise of jurisdiction. Accordingly the correctness of the decision can only be challenged by showing an error in the decision making process.

PN37

And then the Full Bench cited Coal and Allied Operations v Australian Industrial Relations Commission and then went on which cited the House v King which a well established authority on the principles to be applied in appeals, and then cited with approval that particular passage. Over the page at paragraph 19 the Full Bench noted:

PN38

The appellant submitted that the Commissioner's decision is affected by the following errors -

PN39

And then the alleged errors were set out (a) to (d). The similarity in this case is that we say that the Commission at first instance took an erroneous approach to jurisdictional prerequisites under section 127 and we'd say that what he did was he didn't take into account material facts and material considerations, most significantly that the tunnelling employees which we have described in our outline of submissions were not persons who were bound by the provisions of the certified agreement.

PN40

The matter we'd submit is a matter of such importance that in the public interest it warrants leave being granted and we'd say this, that if the Australian Building and Construction Commissioner has been so important as a matter of public interest to intervene that would certainly lend some credence to the argument that we're making today that this is a matter of such public importance that leave should be granted. The number of our case or our argument is simply this and it's quite a simple discrete point that we're pressing in the appeal this morning, is that the case at first instance proceeded on an assumption or proceeded on the basis that all of the employees who were alleged to have taken industrial action warranting the issuance of a section 127 order were bound by the provisions of the certified agreement and we say obviously that the Commission erred in making that conclusion.

PN41

The effect of his decision at first instance we say is that all persons on the project, including the tunnellers are bound by the provisions of the certified agreement. Now, what that then means is crucially there is no right for any person then to take protected industrial action because we would say the next logical extension of that finding is that if there's a certified agreement upon which a 127 order can be made then section 170MN of the Workplace Relations Act comes into play and clearly no-one can take protected industrial action.

PN42

Now, the significance of that point is simply this, if we go to another jurisdiction and attempt to enforce the agreement we would submit that because there's no classifications for tunnellers the CFMEU would not be able to enforce the agreement in respect of those employees and we'd say that that's quite a significant point because if you were to apply the test of major and substantial employment, and I will come to that in a minute, we would say that we would be unable to establish that tunnellers were actually caught by the provisions of the certified agreement and we'd be unable to enforce the agreement. Now, if - - -

PN43

SENIOR DEPUTY PRESIDENT HARRISON: I don't think that's going to be a problem for you. Would you like me to ask Mr Watson if there's proceedings in another place, whether his clients will take the point that tunnellers are not covered by the agreement, would that be of assistance to you, although I don't know how much interest I have in proceedings in another place but there might be an easy answer to this submission.

PN44

MR KUCERA: In enforcing agreement, your Honour, what we'd submit is that you would be required to establish the elements of the case and so even though some concession may be made in this jurisdiction you would still nevertheless have to prove to the applicable standard of proof elsewhere in an Industrial Magistrates Court for instance that those persons were employed in the classifications to which the agreement applied and in our respectful submission what we say is that if you can't enforce the agreement in relation to particular groups or categories of employees then equally you can't argue that there's a certified agreement that applies to those employees which in turn would allow a jurisdictional prerequisite to be satisfied giving rise to the issuance of a section 127 order.

PN45

SENIOR DEPUTY PRESIDENT HARRISON: I just don't understand the relevance of the submission at the moment, Mr Kucera. Is there some decision somewhere of a court that says the agreement isn't binding and is frustrating you in enforcement proceedings in existence or you're contemplating? Is there something we don't know here that could be relevant to the ground of appeal?

PN46

MR KUCERA: I suppose the point is simply this, is this and I will come to it, is that in our outline of submissions we touched upon a memorandum of agreement that was reached between the parties and if you take the time to traverse through the chronology of industrial action what you find is that there was a series of, I suppose what we described them as localised interest type disputes that are confined to the project, then in November 2004 there was a major dispute which led to the signing of the memorandum of agreement and the memorandum of agreement as I understand from the evidence of Mr Wallwork was reached and contained provisions relating to classifications and pay rates for tunnellers and pay and conditions for tunnellers. Now, his evidence also - - -

PN47

SENIOR DEPUTY PRESIDENT HARRISON: I think it contained alignment with existing classifications in the agreement and an alignment as to where tunnellers might find their wage rates which might be a little different than the submission you have just made.

PN48

MR KUCERA: Well, either way what we'd say is that the practical effect of that memorandum of agreement is to place the tunnellers outside the certified agreement because there's acknowledgement that they needed to be included in the subsequent replacement agreement which is also one of the terms of the memorandum of agreement which was reached following the November dispute. Mr Wallwork's evidence actually goes on and I understand it's paragraph 190 - so that I'm getting it right, at page 257 of the appeal book which I will take you to paragraph 94.

PN49

COMMISSIONER SIMMONDS: Sorry, paragraph?

PN50

MR KUCERA: 257, your Honour, and page 94.

PN51

COMMISSIONER SIMMONDS: Sorry, it's paragraph - - -

PN52

MR KUCERA: Paragraph 94.

PN53

COMMISSIONER SIMMONDS: Can you give us that again? I'm at page 257.

PN54

MR KUCERA: No, 257, 257. This is actually a page from Mr Wallwork's witness statement which formed the lion's share of the respondent's case at first instance. He says at paragraph 94:

PN55

It was also agreed between the parties that a new certified agreement would be drafted and put to the vote of employees contained in specific terms ...(reads)... flexible work practices and working hours.

PN56

We then go to the memorandum of agreement which appears as an annexure to his witness statement and that's at 289 of the appeal book. I suppose for purposes of completeness the memorandum of agreement appears at page 287 and page 4 of the appeal book and then what this document does in its entirety is set out the memorandum of agreement that was reached following the November dispute. Over the page at 289, which is 2.1.2, it then sets out the relevant provisions in relation to tunnelling and then says:

PN57

The tunnel classifications will be as follows -

PN58

And then places those particular classifications into the agreement at levels that appear in the certified agreement. So CE4, CE3, CE6 and the trade equivalent at CE5 for those tradespersons performing tunnel work. Then it says at paragraph (b):

PN59

The rates set out in the new certified agreement will be the rates for the tunnelling part of the project.

PN60

So it even acknowledges, we would submit, that tunnelling was a discrete part of the project that needed to be regulated separately. Then when we get to page 271 of the appeal book which is page 28 of Mr Wallwork's witness statement, at paragraph 205 he says:

PN61

Following the meeting McDonald advised me that the men had not accepted the revised certified agreement.

PN62

And so what we say is it completes the circle in the sense that there is no certified agreement in place then that includes these classifications for the tunnellers, which we would submit adds strength to our submission that they fall outside the terms of the certified agreement. When we cross-examined Mr Wallwork at first instance, and I have to take you right back to almost the beginning of volume 1 of the appeal book at page 33 - - -

PN63

SENIOR DEPUTY PRESIDENT HARRISON: What was that page again?

PN64

MR KUCERA: Page 33 of the appeal book, your Honour. There's an exchange there between Mr Wallwork and myself. He says:

PN65

The tunnelling works are included as the works covered in the description in the structural agreement and the responsible that I would ask ...(reads)... They're classifications aren't spelt out in the structural agreement.

PN66

Now, when it came making closing submissions before Senior Commissioner Gregor, and I refer you now to pages 173 to 176 of the appeal book, the Commissioner recognises if you go to 176 which is the fourth line from the bottom of PN1821, the Senior Commissioner says:

PN67

Nobody said it was the classifications weren't in there.

PN68

SENIOR DEPUTY PRESIDENT HARRISON: Sorry, what was that again? What did you just read from, what paragraph number?

PN69

MR KUCERA: It's at the bottom of page 176 at PN1821.

PN70

SENIOR DEPUTY PRESIDENT HARRISON: Yes, thank you.

PN71

MR KUCERA: And I appreciate your patience in allowing me to take you to these discrete passages and paragraphs and what not. So what we say is - - -

PN72

SENIOR DEPUTY PRESIDENT HARRISON: I don't think you have even got close to testing our patience, Mr Kucera. Proceed.

PN73

MR KUCERA: So as I said, so what we then submit is we're left with a situation where - - -

PN74

SENIOR DEPUTY PRESIDENT HARRISON: And all of this was put in issue clearly the Commissioner?

PN75

MR KUCERA: Yes, at the first instance.

PN76

SENIOR DEPUTY PRESIDENT HARRISON: Yes, and about which he made some observations in his decision?

PN77

MR KUCERA: Yes.

PN78

SENIOR DEPUTY PRESIDENT HARRISON: Yes, I understand.

PN79

MR KUCERA: Now, in terms of - and I wish to take you briefly to some of the points that have been raised by the respondent's outline of submissions.

PN80

SENIOR DEPUTY PRESIDENT HARRISON: Well, before you do so, I think this is a matter that's raised in the respondent's submissions, this is an appeal under 45(1)(g) against the decision in accordance with your grounds of appeal was pleaded, do you press that or is it against the order or is it against both?

PN81

MR KUCERA: It's both against the reasons for the decision and the order because obviously the order was predicated upon what he found in his reasons. The relevant finding that we are appealing against, which is I suppose - I will just take you to it. It will be in the second volume of the appeal book and it appears behind tab 7. They're quite lengthy reasons for decision but at page 654 of the appeal book the actual finding appears at the top paragraph on page 64 and it's the third sentence of that paragraph:

PN82

What has happened and I so find is that there has been industrial action in relation to an industrial dispute about work that is regulated by an order or certified agreement.

PN83

And then he says:

PN84

The jurisdictional prerequisites are described in Coal and Allied are established and that being the case the Commission may by order give directions that the industrial actions stop or importantly not occur.

PN85

It almost appears as though the finding about the jurisdictional prerequisites have been fused and what I'm trying to say in this is that what section 127 does and the purpose of me referring you to the authorities in Coal and Allied and Grocon Constructions is that there are a series of jurisdictional prerequisites that have to be met under section 127 and if you go to section 127 in the Act they appear to be as the Senior Commissioner has noted at first instance, disjunctively expressed, so you have to have either industrial action in relation to an industrial dispute or the negotiation or proposed negotiation of an agreement under division 2, part VIB, (c), work that is regulated by an award or certified agreement and then the Commission may by order give directions that the industrial action stop or not occur.

PN86

Now, what we say happened in the first instance was the case proceeded on the basis that there was a certified agreement that applied to everyone and the question of whether or not there was an industrial dispute or a dispute about the negotiation of a proposed negotiation of agreement under division 2 only arose when we raised it in our submissions. Those two elements did not form and the elements under 127(1)(a) and 127(1)(b), they weren't pressed at first instance by the respondent and they only formed a part of the argument if you like after they had closed their case.

PN87

So what appears to have occurred when the learned Commissioner has issued his reasons is, he has attempted to address what we raised in submissions, what they raised in reply and appears to have fused a finding that there was an industrial dispute with the separate jurisdictional prerequisite that there was work that was regulated by an order or certified agreement. Now, one would say he didn't need to do that. What he had to be satisfied of was there was a certified agreement and if he'd found that there was a certified agreement that applied to everyone then that jurisdictional prerequisite was established. But the reasons appear to have gone almost too far and in that sense we'd say he's taken into account an irrelevant consideration and made a finding on fact where there was, we would say, there was no evidence of it at first instance.

PN88

Now, the question of an industrial dispute we'd say just simply wasn't traversed at first instance. It's dealt with in the respondent's outline of submissions somewhat.

PN89

SENIOR DEPUTY PRESIDENT HARRISON: But how is this arising and accepting for the time being that the Commissioner might be using the term industrial dispute in the sense in which it's used in section 127(1)(a) and might have collapsed two bases for an order to issue, namely, the existence of action both as to (a), a dispute, and (c), as to a certified agreement and that he might have collapsed both into those observations; how does that then relate to an appeal against an order and decision on jurisdictional grounds?

PN90

MR KUCERA: I perhaps may have to take some of that on notice and respond specifically in a moment, your Honour.

PN91

SENIOR DEPUTY PRESIDENT HARRISON: Yes, of course.

PN92

MR KUCERA: But I attempted to make the submission at first instance this way, industrial dispute or the meaning of it appears to be applied consistently throughout the legislation so as an example where you have a section 166A certificate, if after all the dust has settled and an employer attempts to commence an action in tort against the union, the typical submission that's made or the typical argument or objection that's brought to that proceedings, if the employer hasn't - this ultimately I suppose will all become very academic shortly but it's quite relevant now; if the employer doesn’t obtain a certificate under 166A then it can't then bring the proceeding in tort against the union for damages or so on and so forth.

PN93

Now, the standard objection that was taken in those circumstances is that if the action is an action for damages in relation to, and a construction is a perfect example, an intrastate dispute confined to a specific project in say Western Australia and an action for damages is brought, if you seek to bring the objection that the employer should have obtained the 166A certificate first, what they say is, well no, we don't have to get a certificate because there was not a dispute within the meaning of section 4 of the Act. We say that that's what should have happened in terms of 127.

PN94

If the employer was going to assert that there was an industrial dispute at first instance then there ought to have been evidence that establishes all of the elements within the definition of section 4 of the Act that there was an industrial dispute in place at the time. We'd say that argument only needed to be run if the employer was wise to the argument that we were making that this agreement didn't even apply to the tunnellers and of course the employer took the view, well, the agreement did, and we'd say potentially at its own peril because we have a group of employees who we say can't enforce their industrial agreement potentially, are unable to take protected industrial action to ensure that their classifications and conditions are inserted into a certified agreement because of the finding that was made at first instance.

PN95

So for instance, even if you were mind to remit this matter back to Commissioner Gregor and to exclude the tunnellers from the operation of the order, there would need to be evidence that there was a dispute about the negotiation of a proposed certified agreement or an alternative that there was an industrial dispute within the meaning of section 4. Now, as I understand the submissions of the respondent, there is a suggestion at paragraph 3(a) that this matter primarily involves a scope clause for a certified agreement relating to one construction project. It actually involves from our submissions and it's quite clear, it's not just a scope clause that's in issue, it's a number of provisions of the certified agreement and in terms of paragraph 3(b), the sole ground of appeal sought to be progressed was only raised in a minor way in the proceedings at first instance.

PN96

I think the submission that we put at first instance was that this was a very crucial point because our submission was that they hadn't established the jurisdictional prerequisite that an order couldn't issue against the tunnellers. So it wasn't put in any minor way and we would say that it fell, the onus of proof on the respondent to establish at first instance that they had satisfied the Commission of the jurisdictional prerequisite, it wasn't our responsibility to do that for them. In terms of paragraph 3(c), the sole issue raised by the appeal does not detract from the validity of the order as such but merely its scope and even if it has substance it would not mean that the Commission did not have jurisdiction to make the order it made.

PN97

Well, obviously we differ in that submission in this, is that the appeal might not detract from the validity of the order in relation to some of the employees on the project but in relation to a discrete and significant group it is a matter of major significance to their industrial interests and that's why we say it's important that an appeal should lie. If I could just take you next to the bottom page of the respondent's outline of submissions and I want to deal with briefly this question of section 127(1)(c) and provide you with an authority that doesn't appear on my list of authorities but it's because it's an afterthought of sorts that came to me last night.

PN98

This is a decision of the Full Bench of the Western Australian Industrial Relations Commission. The submission in relation to section 127(1)(c), particularly subparagraph 3, the classifications in clause 3.1 are expressed in broad terms and apply to tunnellers. The submissions of the appellant are misconceived as the appellant fails to properly apply the classification structure in the certified agreement. Tunnellers are required to operate machinery and equipment requiring the exercise of skill and knowledge beyond that of an employee at CE2, CE3 and CE4.

PN99

This particular decision involves the Swan Dry Cleaners I've regularly pronounced in the first name of the applicant who brought this matter, but it dealt with a prosecution that had been brought by the Transport Workers Union for breach of an award and the allegation was that a woman who had been employed as a driver by a dry cleaning firm had not been paid in accordance with the Transport Workers General Award and what this decision did is it adopted the applicable tests to be applied when assessing whether or not an employee was covered by a particular award because the sole issue on which this particular case turned was whether or not the employee who brought the claim was employed under the Dry Cleaning Award or the Transport Workers General Award.

PN100

If I could take you to page 1292 of this gazette and what the Full Bench did in this decision was to adopt the test that had been applied by the Conciliation and Arbitration Commission as it then was and at the bottom of that page, the paragraph which is indented:

PN101

Mr Kelly for the respondent submitted that his Worship had adopted the major and substantial employment test ...(reads)... in Merchant Service Guild of Australia and Others.

PN102

Then it cites this relevant passage:

PN103

To ascertain the course of the calling of particular employees it is not enough merely to make quantitative assessment of time spent in carrying out ...(reads)... in the performance of the duties of a general services -

PN104

Now, it appears we'd submit from that passage what the Commission at a federal level has done is to adopt the major and substantial employment test. Now, why we say our submission is not misconceived is simply this, the question that would need to be applied in relation to the tunnellers is whether or not their major and substantial employment was to operate machinery and equipment requiring the exercise of skill and knowledge beyond that of an employee at CE2, CE3 and CE4. Now, at first instance that wasn't done because as we've said, the respondent's case proceeded on the assumption that the tunnellers were in and covered by the certified agreement.

PN105

We raised that question with Mr Wallwork and he said that the tunnellers classifications weren't covered by the certified agreement and they then didn't seek to bring in any evidence to, if you like, sure up their position.

PN106

SENIOR DEPUTY PRESIDENT HARRISON: I think he said there wee no tunnellers classifications in the enterprise agreement.

PN107

MR KUCERA: Yes, that's right.

PN108

SENIOR DEPUTY PRESIDENT HARRISON: I don't know if that's different to what you just submitted was Mr Wallwork's evidence.

PN109

MR KUCERA: The way we take Mr Wallwork's evidence is there's no classifications in the agreement and we take that to mean that the tunnellers aren't covered by the certified agreement. We're aware that Mr - - -

PN110

SENIOR DEPUTY PRESIDENT HARRISON: I understand. The first can be established by looking at the agreement and the second is contrary to the finding made by the Commissioner that you now challenge here.

PN111

MR KUCERA: Yes, that's right.

PN112

SENIOR DEPUTY PRESIDENT HARRISON: And you won't forget that I've asked you to assist me as to how that gives rise to a challenge under section 45(1)(g)?

PN113

MR KUCERA: Yes.

PN114

SENIOR DEPUTY PRESIDENT HARRISON: And that's assuming of course that one challenges the decision at all, but I understand what you say about the findings there lead to the order and how we should read the scope of the order.

PN115

MR KUCERA: Your Honour, I don't propose to labour the point any further other than to say we reserve a right of reply to anything that's raised by my friends.

PN116

SENIOR DEPUTY PRESIDENT HARRISON: Of course. Now, Mr Hooker and Mr Watson, do you have some agreement as to who would go next? I might have thought it would be you, Mr Watson. Yes, that's your agreement?

PN117

MR WATSON: That's agreed, your Honour.

PN118

SENIOR DEPUTY PRESIDENT HARRISON: That's your agreement, that's good.

PN119

MR WATSON: That I would go first. If the Commission pleases, this is a narrow appeal and in our submission should be disposed of denying leave to appeal. The sole issue as my learned friend has outlined this morning really concerns the scope of the order made the Commissioner insofar as it relates to employees who have been termed tunnellers. There are approximately 240 employees engaged on the project and approximately 60 of those are employed in tunnelling activities, but that covers a range of different functions associated with the tunnel as such. Some of it involves the operation of tunnelling equipment and there are other labouring duties associated with the tunnelling activities as well.

PN120

But true it is that the term tunnellers is not dealt with in the agreement. The agreement describes the scope of the project and I'm not sure whether the Bench actually has a copy of the agreement before it. I don't think it's in the appeal book but maybe a copy of it has been obtained.

PN121

SENIOR DEPUTY PRESIDENT HARRISON: Yes, I do have a copy but it's not because I found it in the appeal book. Does anyone have a spare?

PN122

MR WATSON: I think I have got at least one.

PN123

SENIOR DEPUTY PRESIDENT HARRISON: That might be enough.

PN124

MR WATSON: This is a somewhat strange situation. The argument doesn't seem to proceed entirely at least on the basis of a construction of the terms of the agreement, although that is certainly involved. It doesn't seem to rely on any clarification of ambiguous terminology by reference to material at the time that the agreement was made which might be a more conventional basis of interpreting an agreement. It seems to have been made in submissions before the Commission after some cross-examination was undertaken in relation to tunnellers and there is some alternative views as to the nature of that evidence in cross-examination. But I just note at this point evidence about what might have been thought to be covered of that nature is not the normal way one construes the meaning of the document, and I will come back to that in terms of rules of construction.

PN125

But the first point we make is from the terms of the agreement the scope clause is clause 1.4 and it says:

PN126

This agreement applies to persons directly employed by Leighton Kumagai Joint Venture in the classifications set out in section 3 of this ...(reads)... in the following work areas.

PN127

And a variety of work areas are mentioned and there is a work area called Bored Tunnel, B-o-r-e-d, and mentions tunnel boring machine operations and tunnel lining service and system installation. The scope clause also indicates what the agreement does not apply to and it's basically off site work, transport and other things which don't seem to be relevant. But we don't find in that clause any relevant exclusion but we find a clear reference to the area of work for the project. Then we go to the classifications and these are classifications, as has become common since 1989, a skill based classification structure where indicative tasks are of different levels of skill and responsibility are indicated at each level in ascending order of skill and responsibilities and there are phrases such as in level CE3, which is clause 3.1:

PN128

Operates machinery and equipment requiring the exercise of skill and knowledge beyond that of an employee at CE2.

PN129

And in CE4 there is one category:

PN130

Operates machinery and equipment requiring the exercise of skill and knowledge beyond that of an employee -

PN131

I think that's probably meant to be CE3, but whichever way you read it we say that there is a classification that applies to equipment operations of a more sophisticated nature than the ones that are specifically mentioned. But my learned friend doesn't go to this document to look at those meanings as such and seek to apply rules of construction. He seems to come at it in a different way.

PN132

COMMISSIONER SIMMONDS: Where's the tunnel boring machine operator classified? I thought he was at 6 or 7.

PN133

MR WATSON: Well, your Honour, the evidence is about really what these people would be paid. As to what they would be classified - - -

PN134

COMMISSIONER SIMMONDS: Well, where does the employer classify them?

PN135

MR WATSON: Well, it pays them at a certain level probably in excess of what the agreement requires it to be paid but that doesn't - what it pays them is different to what they're classified.

PN136

COMMISSIONER SIMMONDS: Yes, I understand that argument, yes. So where would the tunnel boring machine operator be properly classified on your submission?

PN137

MR WATSON: CE4, your Honour.

PN138

COMMISSIONER SIMMONDS: Thanks for the promotion, but at CE4?

PN139

MR WATSON: Yes.

PN140

COMMISSIONER SIMMONDS: Yes, I see. Yes, I understand the submission.

PN141

MR WATSON: Because it is equipment which involves greater skill and responsibility than the other equipment that's mentioned in that letter.

PN142

COMMISSIONER SIMMONDS: So if you say the employer would properly classify them at that level what do you say about the evidence of Mr Wallwork about the negotiation of an agreement to put them at a higher level?

PN143

MR WATSON: That was negotiation about what could lead to a variation of an agreement or in fact a new agreement which might have actually led to them being placed in a higher level, commensurate by the way with what they are being paid and they are being paid at a high level in accordance with the agreement that was reached in 2004. But what they're being paid is a different thing to the scope of the agreement which was the issue in this case.

PN144

COMMISSIONER SIMMONDS: Yes. No, I understand the argument, I'm just wondering what - there's a least a suggestion - well, it's more than a suggestion as I understood Mr Kucera's argument, it was that they were not contained within the classifications and this was accepted by the company.

PN145

MR WATSON: Your Honour, there were no specific classifications above CE4 for that equipment such as would give them a higher rate of pay. They were not mentioned in terms and we say the evidence that my learned friend has taken us to really amounts to an acknowledgement of only that, that there was no specific mention of a specific classification that covered the operator of tunnelling equipment. That is a different question as to whether they were covered by another definition and we say they're clearly by the general description. You're looking at a different type of classification structure with generic descriptions rather than specific roles.

PN146

COMMISSIONER SIMMONDS: But it reminds me - but the other possibility is, isn't it, that they're not covered at all?

PN147

MR WATSON: We can't see - - -

PN148

COMMISSIONER SIMMONDS: As indeed a person who might be engaged as a supervisor and there's no provision for supervisor, I'm not talking about this agreement, but a person who is employed as a supervisor in a staff position but who also is a tradesperson and that person comes along and says, well look, I'm a tradesperson employed by employer X and the employer says no, you're not employed as a tradesperson, you're employed as a supervisor and you are not covered by the award.

PN149

MR WATSON: Well, in that example, Mr Commissioner, if the person was not employed to perform work of a tradesperson then they wouldn't be undertaking tasks of a tradesperson and therefore they wouldn't fall within the classification structure. The classification structure uses the words tasks undertaken but as with all classification structures they operate on the premise of the work that is required to be undertaken, not skills held that are not required to be undertaken, but qualifications that are not required to be used. There must be the necessary link with the work requirements as well as the requisite level of skill in the relevant level.

PN150

COMMISSIONER SIMMONDS: And if the supervisor were exercising trade skills as well as exercising supervision?

PN151

MR WATSON: Well, if someone is required to exercise trade skills amongst other things and certainly the feature of, we say, modern post 1989 classification structures, that employees can be required to undertake any duties falling within the skill and responsibility then that might be a different story altogether. But I think we're talking about hypotheticals that are - - -

PN152

COMMISSIONER SIMMONDS: Well, we're not because there is a case and I can't bring it to mind but you just brought it to my mind, in which the issue of whether or not a person was employed under an award because their salary was greater than the limit and it involved Amcor Paper I think and - - -

PN153

MR WATSON: Sorry?

PN154

COMMISSIONER SIMMONDS: I think it was Amcor Paper. Anyhow, but there is a case and I'm sorry I'm bringing it to my mind from my sitting on the Bench - - -

PN155

MR WATSON: If there was a limit it might be a different thing as well and some awards have exemption rates.

PN156

COMMISSIONER SIMMONDS: No, it didn't have an exemption rate and the argument was that he was bound by the award. In fact the Bench found that he wasn't so that's why I'm raising it, because he was a tradesperson. He was qualified as a tradesperson and the issue of whether he was exercising trade skills in his supervision was pretty much the case but he wasn't covered by the award.

PN157

MR WATSON: Well, that would be a question of whether the classification - - -

PN158

COMMISSIONER SIMMONDS: But it turns on its own facts clearly but I'm just - - -

PN159

MR WATSON: It would be a question as it is in this case as to whether the descriptions in the classification structure cover the work that the employee was engaged to perform and it will vary based on different terminology from award to an award - - -

PN160

COMMISSIONER SIMMONDS: Sorry. You're saying that someone - and I do understand you I think because you're saying that someone who operates a piece of machinery other than a mobile crane, even with the operation of that piece of machinery is greater, requires greater skills and competencies then the operator of a crane, 180 to 250 tonnes, they would still only be covered by CE4?

PN161

MR WATSON: That's correct, your Honour, and the parties - - -

PN162

COMMISSIONER SIMMONDS: Yes, I understand your submission.

PN163

MR WATSON: The parties have agreed that there is in fact probably a more appropriate classification level and payment level and that reflects practice and it was intended to be part of the new agreement. But in terms of construction of the agreement, we believe that the agreement applies to these people.

PN164

COMMISSIONER SIMMONDS: No, I understand.

PN165

MR WATSON: We say very clearly on its terms and this is where my learned friend has really failed to take us to to build and argument, we say it's clear
and - - -

PN166

SENIOR DEPUTY PRESIDENT CARTWRIGHT: If I look at the section in CE3.

PN167

MR WATSON: Yes, your Honour.

PN168

SENIOR DEPUTY PRESIDENT CARTWRIGHT: ..... what's the significance of the punctuation in the clause?

PN169

MR WATSON: Well, the first piece of punctuation, your Honour, is a colon which then follows a number of alternative paragraphs where the introductory words, tasks undertaken, relate to each of those levels, each of those further descriptions and they're expressed not in a sort of total sense, they're alternatives. The semi colon between each paragraph is standard punctuation in expressing alternatives, ending with a full stop in the last one.

PN170

SENIOR DEPUTY PRESIDENT CARTWRIGHT: So that in operates machinery and equipment requiring, et cetera, is a category in its own right?

PN171

MR WATSON: Correct, your Honour, and there's no difference between that category in terms of punctuation, expression or anything else compared to any of the other categories who each apply in their own right. So someone could be engaged to perform tasks of a concrete pump operator. Maybe a better example is a steel fixer which might not involve any machinery as such. It's a different type of manual operation, so there's some pieces of equipment, some other types of building and construction activity, but they're each separate categories that apply in their own right and some classifications had a number of alternatives in effect grouping different types of work and other are confined to single pieces of equipment.

PN172

COMMISSIONER SIMMONDS: But the same individual performing more than one of those?

PN173

MR WATSON: If you're performing more than one of those - - -

PN174

COMMISSIONER SIMMONDS: Well, he could be a steel fix and a dog person.

PN175

MR WATSON: Yes, and that would be a straight forward question because the level of skill and responsibility would fall within CE3. If someone performed the duties of a dog person and a painter there would be questions as to the appropriate classification.

PN176

COMMISSIONER SIMMONDS: More likely operating a mobile crane with a lifting capacity in excess of 20 tonnes and up to 80 tonnes I suggest.

PN177

MR WATSON: Yes, it could be multiple cranes. One would tend to think that the higher classification would apply but there might be the application of the concept my learned friend mentions of the major substantial nature of the work. In that context of the case he mentions it was between two separate awards.

PN178

COMMISSIONER SIMMONDS: But my point of all of this was only to make the point I think that you have already made in a different way.

PN179

MR WATSON: Yes.

PN180

COMMISSIONER SIMMONDS: That is, the punctuation, they could just as easily put and/or between each of those categories.

PN181

MR WATSON: They could have and it wouldn't have changed the meaning in our submission.

PN182

COMMISSIONER SIMMONDS: It would have the same effect.

PN183

MR WATSON: Save them some words perhaps.

PN184

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Well, the relevance of my question is when you look over at clause 3.5, the tool allowance provided there, and if you look at the categories of employee described there, each receiving a different level of allowance, some of those are included specifically in the lists in the classification and some aren't. So for example, I can't find anywhere in the particular categories referred to 3.1 a roof tiler, a sign writer or a glazier but I find all the others as specific tasks.

PN185

MR WATSON: I wouldn't expect a great incidence of payment of those types of allowances, your Honour.

PN186

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Right.

PN187

MR WATSON: There's no classification structure, no classification for those people. It does appear that a standard list has been developed and it doesn't meant that an operator of machinery requiring the exercise of skill and knowledge beyond that of a CE4 would receive a painter's tool allowance because painter is in the same classification. It would relate back to people who undertook the tasks of a painter and would be classified for that reason at CE4 and actually supports the proposition that I think we're in violent agreement about, that each of the separate categories are separate categories that operate as alternatives.

PN188

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Similarly when I look at 3.12 that refers to stone masonry employees who don't seem to be again one of the particular task groups in C1.

PN189

MR WATSON: That may be the case, your Honour, and I hope there would be no reliance on my knowledge of the building and construction industry but there might be some general labouring work that might be in relation to handling of heavy blocks that might be covered. It needn't be an exact description that one finds in the classification structure I suppose is all I'm saying.

PN190

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Well, I'm really asking is, do the stone masonry employees therefore come within one of these general descriptions, operates machinery and equipment requiring the exercise of skill and knowledge beyond that of an employee at CE2 or CE3?

PN191

MR WATSON: I don't know, your Honour, whether there are any stone masonry employees as such and as to where they would fit within the classification structure that may well depend on whether they operate machinery and equipment and a careful review of each of the descriptions in the structure, that's the task that will have to be undertaken and there are clearly general terminology. It was clearly general terminology. There is general labouring and cleaning duties. There's people who assist employees at higher classification levels including tradesmen.

PN192

There is a trades level but the particular building trades seem to be articulated in CE4 and then there are specific pieces of equipment and general catchall phrases in terms of other equipment. That's the broad description of the structure and within that structure, which is expressed in broad terms and clearly should be interpreted on its terms, it would cover obviously everyone falling within those descriptions. For relevant purposes tunnelling employees, would include people who undertake the tunnelling equipment as well as other duties that don't involve operating equipment as such. We say they're all covered very clearly on the terms.

PN193

Perhaps I will return further to this later if we proceed to the appeal as such. But in terms of the nature of this appeal - - -

PN194

SENIOR DEPUTY PRESIDENT HARRISON: I will just pause a minute,
Mr Watson. Do you think we're going to deal with the question of leave as a discrete point and rule on that, do you?

PN195

MR WATSON: Well, your Honour, we'll put our submissions on leave and then ask the question whether the Bench wishes me to proceed. But the point here in terms of leave is to identify what the issue is and the scope of the order that was made by the Commissioner is confined to persons covered by the agreement. So this is not, while this is said to be an appeal against the order, it can't be an appeal against the terms of the order because the scope of the order follows the scope of the agreement. It seems to be more an issue as to the meaning of the provisions of the order and the meaning of the scope clause of the agreement and we submit that an appeal against the order which is actually confined on its terms to employees covered by the agreement is not an appropriate way of determining that question.

PN196

We say that the problems for my learned friend in establishing the grounds for leave to appeal are compounded by his reliance only on the public interest ground. It's not the only ground available but it appears to be the only one advanced by the union in this matter and we say that really nothing associated with what my learned friend has raised concerning the scope of the agreement and an explanation of the meaning of the terms of the order, which is confined to employees covered by the agreement, goes anywhere near an issue of importance that attracts the public interest.

PN197

It's the scope clause of an agreement and an order and we say that that, while it might be a very important matter for the interests of the direct parties, doesn't go beyond the interests of the direct parties, and we have referred to the KBR case, not for the purpose of the passages my learned friend took you to, but to the useful discussion at paragraphs 20 and following of the meaning of public interest. In a different context, it's not the question of public interest in terms of leave to appeal. In that case the Bench found that there was a basis to grant leave to appeal, but in terms of ascertaining the public interest test in section 1780MH(3) the Bench considered the question of does this involve the direct parties interests as well as the public interest, are those interests part of the public interest that also have to be taken into account for the purpose of that section, and the Bench at paragraph 21 said:

PN198

It seems to us that confusion will arise if attempts are made to paraphrase the statutory test and formulate rules or guidelines for its application ...(reads)... could have made specific reference to those interests.

PN199

The Bench contrasts the terminology in section 170MX(5) which does separately identify interests of the negotiating parties. It says at paragraph 22:

PN200

The absence of any reference to the interests of the negotiating parties is significant.

PN201

Paragraph 23:

PN202

The notion of public interest refers to matters that might affect the public as a whole such as ...(reads)... maintenance of proper industrial standards.

PN203

At the bottom of the page, halfway through that paragraph:

PN204

While the content of the notion of public interest cannot be precisely defined it is distinct in nature from the interests of the parties and although the public interest and the interest of the parties may be simultaneously affected that fact does not lessen the distinction between them.

PN205

And there's other helpful comments by reference to other authorities as to what may be involved in ascertaining the public interest and balancing potentially countervailing public interests in a particular context. But the point we make is that there needs to be something other than the interests of the direct parties to attract the public interest test for the purposes of leave to appeal. It's not enough to say that it affects the people directly concerned it must be something other than that and while in the KBR case there was an important question of the construction of a section of the Act which applied to many other people and therefore had brought a significance, here we are talking about the construction of a term of an agreement that only applies to direct parties.

PN206

We are not even really talking about a challenge to the terms of the order as such because the terms of the order are confined to the people covered by the agreement and it appears to us that there is nothing in the subject matter of this appeal that raises issues of public interest and in fact the matter is quite distinguishable from the KBR case and the particular facts notwithstanding my learned friend's submissions to the contrary. Of course part of the history involved a previous order being made under section 127 of the Act by Deputy President McCarthy in November 2004. There was no issue raised at that stage as to the scope of the order. The order was expressed in similar terms and I don't wish to take the Commission to it but perhaps should hand up a copy of that order for completeness.

PN207

SENIOR DEPUTY PRESIDENT HARRISON: I thought we had them in these appeal books.

PN208

MR WATSON: A copy of the - - -

PN209

SENIOR DEPUTY PRESIDENT HARRISON: Well, certainly we had the transcript of 2004/2005 and I thought we might have the orders but that might not be so. Mr Kucera, do you know if the orders were in the appeal books?

PN210

MR KUCERA: It's my understanding that the transcript was provided during the proceeding but I haven't seen the orders when we went back through the exhibits.

PN211

MR WATSON: I will hand up a copy of the order.

PN212

SENIOR DEPUTY PRESIDENT HARRISON: Yes.

PN213

MR WATSON: There is in fact two orders but there was an initial order and an amended order, but we hand up the amended order. It appears simply to add further names of employees.

PN214

SENIOR DEPUTY PRESIDENT HARRISON: All right, yes. One order is about 387 and the other order, just let me know if they're the same orders that you're giving, that you're providing to us. I don't think the second order I can find it. Yes.

PN215

MR WATSON: Yes, your Honour.

PN216

SENIOR DEPUTY PRESIDENT HARRISON: Well, that's right, I've just mentioned maybe the second order and you have provided us with the first, is that right, Mr Watson?

PN217

MR WATSON: It looks like the one in the appeal book is the first, your Honour, and the one we have handed up seems to fill a gap. But other than doing that and noting relevant to the leave issue, an order was made. There was similar terminology in terms of scope of employees covered by the agreement and it was not appealed. There was no issue raised as to scope of the agreement or scope of the order and it appears that it was raised in relation to these subsequent proceedings for the first time.

PN218

SENIOR DEPUTY PRESIDENT HARRISON: I will just indicate I have done some of my homework, it was actually raised in the transcript, Mr Watson.

PN219

MR WATSON: In the first hearing before - - -

PN220

SENIOR DEPUTY PRESIDENT HARRISON: Yes.

PN221

MR WATSON: I see.

PN222

SENIOR DEPUTY PRESIDENT HARRISON: I might let you know that later because I'm sure one or the other of you are going to seize upon it. I won't guess which of the two you think it's going to bolster your case.

PN223

MR WATSON: Yes. Well - - -

PN224

SENIOR DEPUTY PRESIDENT HARRISON: But in the transcript commencing in the appeal book 359, the transcript of the 2005 matter, tunnellers was the subject of examination and submission.

PN225

MR WATSON: Yes. Now, the next point we wished to raise was in seeking to agitate the question of the scope of the order despite the terms which don't seem to be a problem on the terms rather than their meaning. Not only has the union has failed to base their argument on the particular terms of the agreement but they have also failed to address the circumstances at the time of making the agreement and it did appear to us on the proper rules of the construction, even if one could allege that there was an ambiguity as to the meaning of the classification structure, one might look at other objective material in existence at the time of making the agreement to provide some assistance and we have obtained a copy of the statutory declaration made by Mr Reynolds at the time the agreement was certified.

PN226

I hand a copy of that statutory declaration to the bench, which is a statutory declaration made by Mr Reynolds on 28 June 2004 and paragraph 1.3 asks the question:

PN227

What is the work or employment in that single business or part of the single business to which the agreement is expressed to apply?

PN228

The answer is given:

PN229

This agreement covers all work done by employees of the Leighton Kumagai Joint Venture work on and in connection to the new Metro Rail City Project.

PN230

All work done by employees would seem to be very broad terms no exclusions and we would say on that basis, absolutely no basis to suggest any intention to confine the scope of the agreement to people other than tunnellers. If there was any such intention then one would have found some exclusion or description of that nature.

PN231

SENIOR DEPUTY PRESIDENT HARRISON: Now, are we marking this or what are you doing? I mean they're Commission documents obviously.

PN232

MR WATSON: I tender that. Yes, well, we're in the Commission's hands but I tender the statutory declaration.

PN233

SENIOR DEPUTY PRESIDENT HARRISON: I have the employer's attached to this bundle I've got too I think, Mr Watson. I have got the employer's attached as well.

PN234

MR WATSON: You have got the employer's as well?

PN235

SENIOR DEPUTY PRESIDENT HARRISON: As well. Do you want us to have that also? Yes, it's in the same terms.

PN236

MR WATSON: Yes.

PN237

SENIOR DEPUTY PRESIDENT HARRISON: Well, at least the answer to 1.3 is in the same terms.

PN238

MR WATSON: Yes.

PN239

SENIOR DEPUTY PRESIDENT HARRISON: I don't know about the rest.

PN240

MR WATSON: Yes, yes. I tender both of those statutory declarations.

EXHIBIT #LEIGHTON1 STATUTORY DECLARATIONS

PN241

SENIOR DEPUTY PRESIDENT HARRISON: Now I'm marking things I probably should have marked your submissions, Mr Kucera. Can I do that now?

EXHIBIT #CFMEU1 SUBMISSIONS OF MR KUCERA
EXHIBIT #LEIGHTON2 SUBMISSIONS OF MR WATSON

PN242

MR WATSON: Thank you, your Honour. There could be other bases for granting leave to appeal that may involve an apparent error or an injustice, don't appear to be relied on by my learned friend, but we say no question of injustice could arise here. There is evidence of industrial action concerning the whole site. The argument as to the agreement applying to tunnellers being covered by the order was clearly raised and considered and we say on a proper focus on the relevant considerations there is clearly no credible argument as to error.

PN243

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Can you take me to where in the decision the Commissioner made a finding on whether they were or were not covered by the agreement?

PN244

MR WATSON: Yes, your Honour. I think there are two occasions.

PN245

SENIOR DEPUTY PRESIDENT CARTWRIGHT: He sets out the submissions of the parties.

PN246

MR WATSON: Yes. There is a paragraph under the heading of Submissions at page 640 of the appeal book.

PN247

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Yes, and then later on he sets out the CFMEUs submission.

PN248

MR WATSON: Yes. It perhaps is a little bit unclear at the top of page 640 whether he is indicating what the employer's submissions were or actually summarising the effect of the evidence.

PN249

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Well, as I read it, in the section headed Submissions he first of all goes through the joint venture's submissions, then he goes through the submissions from the intervener,
Mr Hooker, and then he turns to the submissions of the CFMEU on page 647 where once again he refers to the issue of tunnellers.

PN250

MR WATSON: Yes.

PN251

SENIOR DEPUTY PRESIDENT CARTWRIGHT: But when he comes to makes his conclusions and analysis and make his findings where does he say anything at all about the tunnellers?

PN252

MR WATSON: It's page 654 and it's the passage my learned friend refers to, at the top of that page. He said:

PN253

There is no reason to make individual findings about each of the matters which are detailed in the various ...(reads)... as described in Coal and Allied are established.

PN254

Et cetera. Now, the earlier passage I referred to, page 640, did note and it maybe noting in the way of summarising submissions but it did also note that in short:

PN255

All employees are covered. There is an existing certified agreement and there have been further negotiations under division 2 of WA Act.

PN256

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Well, on that basis what do you do with the section on 647 where he says:

PN257

The joint venture has failed to establish that the Commission has the necessary jurisdiction to make an order that may be expressed to apply to these discrete groups of persons.

PN258

I mean in other words, both sections are setting out submissions that were made to him, aren't they?

PN259

MR WATSON: Yes, they seem to be ..... submissions, your Honour, and it's only after those sections on the submissions that does he express his findings. But in the course of noting the submissions he obviously notes certain circumstances. Whether he relies on them as such might be a different question down the track, but there was certainly assertions made, for example, as to negotiating a further certified agreement which were part of the background circumstances.

PN260

What we say about in relation to leave is that it's not a credible challenge to the order without being based on the primary material being the terms of the agreement and any relevant extraneous material that might clarify the meaning of terms that might be thought to be ambiguous and my learned friend seems to ignore those aspects and rely on cross-examination which is ambivalent or ambiguous in itself in terms of what is actually being said as a basis for mounting an argument that there was a gap in the scope of the agreement and tunnellers fell within this gap. But it's not a credible argument unless it's presented in that way and it's not a credible argument to suggest in an appeal in relation to the jurisdictional requirements for a section 127 order to say that just because one of the alternative bases might be subject to some challenge therefore the appeal should be allowed.

PN261

It really must be established that there was no jurisdiction to make the order. Certainly in the terms sought, though there doesn't seem to be a problem in the terms of the order as such, a strange aspect of this appeal. We submit that the appeal does lack credibility in both of those respects. It doesn't proceed on a proper consideration of the relevant issues associated with the scope of the agreement and the scope of the order. The terms of the order themselves are not an issue. It doesn't establish that there was no jurisdiction to make the order by going to alternative bases that could have been found, including the point that was raised before the Commissioner that there was the circumstances including the negotiation of a new certified agreement which could have been an alternative basis for jurisdiction.

PN262

In an appeal that might result in some effect on the order we say that to obtain leave there must be a credible challenge to the jurisdiction in the broader sense rather than the very narrow basis on which it's advanced and all of that we say must be considered in the context that my learned friend attempted to establish, that there is an element of public interest in the appeal. One needs to look at the arguments and the issues in the context in which they arise and we say that properly construed and understood there is no aspect of public interest and therefore leave should be denied.

PN263

Unless the Bench wishes to determine separately the question of leave, I will proceed to advance our other arguments in the appeal as such.

PN264

SENIOR DEPUTY PRESIDENT HARRISON: How long are your arguments, with respect, Mr Watson?

PN265

MR WATSON: It might be half to three quarters of an hour, your Honour.

PN266

SENIOR DEPUTY PRESIDENT HARRISON: We might take a short break.

<SHORT ADJOURNMENT
<RESUMED

PN267

SENIOR DEPUTY PRESIDENT HARRISON: We would like to hear all of the submissions on leave first and we will then retire to consider how we want to proceed. Do you want to be heard on leave, Mr Hooker?

PN268

MR HOOKER: Yes, your Honour. Our submissions don't draw a significant distinction between the leave issue and the granting of the appeal should leave be granted in the first instance. So in effect, your Honours and Commissioner, you won't need to hear from me twice.

PN269

SENIOR DEPUTY PRESIDENT HARRISON: Well, we don't want to hear from you now any longer than we need to in relation to leave, so I know you say that you won't be much longer but what do you mean by that?

PN270

MR HOOKER: I can put concisely why we say leave would not be granted and those submissions would then apply if the Full Bench was mind to grant leave concerning the disposition of the appeal per se, largely because there's an issue of merit which traverses both issues. Can I say one preliminary point, if it please the Full Bench, on the threshold question of public interest. It was put by my learned friend, Mr Kucera, that the Full Bench might more readily infer that there was a public interest in these circumstances because my client had seen fit to intervene, in Mr Kucera's words, intervening in the public interest.

PN271

That ought be rejected for the reason that it's section 71, as members of the Full Bench might have observed, section 71 of the Building and Construction Industry Improvement Act which adverts to an intervention in the public interest in a civil proceeding before a court. As we touch on in our outline of submissions, a nice question might arise as to what that means in conditioning the nature and scope of an intervention under that provision. However, under section 72 there's no such qualification and for the reasons we have put in our outline we say that four preconditions are satisfied and that gives rise to what we characterise as a right of intervention in the present circumstances.

PN272

The short point is given that textual distinction there's no basis to conclude more readily merely by virtue of my client's intervention that there is a particular public interest in the sole remaining appeal ground. And as I will come to develop, the narrowness of that remaining ground impacts on firstly the relatively limited ambit of my client's submissions on the intervention, and secondly, demonstrates that the matter can be disposed of on that narrow basis. Whilst there might be broader and more general issues in construction of the Act, a fact finding process under section 127 that might be hinted at, it's not necessary for the Full Bench to authoritatively determine those broader issues.

PN273

In short, it's submitted by the intervener that the ground on which leave is sought is misconceived because it fails properly to appreciate and attend to the text of section 127(1)(c) of the Workplace Relations Act and in particular the statutory expression, work that is regulated by relevantly a certified agreement. Once that statutory text is attended to the argument as to the significance of classifications, whether they're dealt with with sufficient in the certified agreement in effect falls away. The related error that the sole remaining ground suffers from is that it conflates two not unrelated but distinct issues.

PN274

On the one hand the issue as to the bindingness of a certified agreement and specifically upon whom a certified agreement is binding, but on the other hand, the distinct regime under section 127 of the Act for the making of orders to stop or prevent industrial action. That error is readily apparent in my submission from what was put by my learned friend, Mr Kucera, this morning. It was said in oral submission to the Full Bench that the effect of Commissioner Gregor's decision is that all employees including tunnellers are bound by the certified agreement.

PN275

That's not the effect in our submission, that's a separate question. The effect of Commissioner Gregor's decision and importantly his order is that the persons named in that order are bound by the direction to stop or cease or not engage in industrial action. The reason why that error is perpetuated in our respectful submission is that there is insufficient regard to that distinct jurisdictional source in section 127(1)(c) of the Act and it's clear in our submission on a proper appreciation of Commissioner Gregor's reasons that from the outset the Commissioner appreciated that distinct jurisdictional prerequisite, continually had regard to it and made a finding in those terms accordingly.

PN276

So it may be that pursuing the issue raised by Senior Deputy President Cartwright before the break, it may be that one has difficulty in locating an explicit finding on the extent of the classifications and whether with abundant clarity tunnellers can be found to be subject to a classification, but in our submission it doesn't matter. It doesn't matter because Commissioner Gregor appreciated the distinct source under paragraph (c), consistently had regard to it, as I'm about to demonstrate, and made a finding of that jurisdictional prerequisite accordingly.

PN277

Before I take the members of the Full Bench to the salient parts of the reasons for decision which we submit manifest that, it's helpful to have regard again to some of the terms of the certified agreement itself and in particular on page 4 and there's a distinction drawn in the text of the certified agreement between on the one hand the parties that are bound, and my friend, Mr Kucera, would presumably place some emphasis on the second arrow point referring in terms to employees engaged on the project in the classifications detailed in section 3 of the agreement, so the argument goes those classifications aren't clear enough to encompass tunnellers therefore they're not bound, they're not amongst the parties bound in terms of the title to clause 1.3.

PN278

Now, that may be a significant issue if in another time and another place there was an enforcement of the certified agreement, but notably clause 1.4 goes in terms to, admittedly refer to persons directly employed by the joint venture in the classifications set out, but to perform on site construction work and related work on the project being work that is performed at the following work areas, and then they are set out being distinct work sites and areas of work activity. So that distinction is clear from the text of the agreement and it's also clear from that paragraph 1.3 in the statutory declarations that my learned friend, Mr Watson, tendered.

PN279

Now, Mr Watson put or characterised the significance of that part 1.3 a slightly different way and not unrelated way in terms of there being no intention to confine the scope of the agreements to people other than tunnellers and what I say doesn't detract from the force of that submission, but what it also demonstrates is that there was a contemplation by the parties that there was certain work that was going to be within the ambit of the then proposed certified agreement. So that distinction is clear we submit before one gets to the Senior Commissioner's reasons and I want to very succinctly take members of the Full Bench to some salient passages which we say manifest these characterisation of the Commissioner's approach that I was just putting.

PN280

Initially at page 618, perhaps even a touch before that, at the outset the Senior Commissioner set out - - -

PN281

COMMISSIONER SIMMONDS: I think there's only a Commissioner in this jurisdiction.

PN282

MR HOOKER: I'm probably in error, Commissioner. I might be giving
Mr Gregory by promotion. He's a Commissioner in this jurisdiction but perhaps known a ..... Senior Commissioner otherwise. But the Commissioner set out the terms of the order that were sought and notably towards the top of 616 it was sought that the order be binding on employees of the applicant who are members of the present appellant and engaged in work which is covered by the certified agreement, unsurprisingly, because that's what 127(1)(c) contemplates.

PN283

Having set out what was sought, then at 618 Commissioner Gregor observed that the order is based upon an allegation that in substance there had been industrial action involving bans, limitations, restrictions on the performance of work and then further on in that paragraph there's other reference to an appreciation by the Commissioner of a stimulus for the application. None of that again is particularly surprising and of course it draws on the well known definition of what industrial action is in section 4 of the Act. But then if one goes on from that foundation to 620 of the reasons for decision where the Commissioner sets out the background, the Commissioner refers to the agreement which was certified, gives it its title, nominal expiry date, goes on to refer to its nature, some matters of history and at various junctures in the discourse that follows there are references to occurrences, matters, orders that involve work covered by the certified agreement.

PN284

Another example is at the bottom of 620 in the context of one of the orders made by Deputy President McCarthy. Then further at 621, in the third paragraph the allegation by the joint venture that the industrial action can be established to be happening, threatened, impending or probable and is in relation to an industrial dispute or work or work that is covered by a certified agreement. So there could be no doubt that in recounting the nature of the application of that background that the Commissioner was cognisant of that separate jurisdictional prerequisite. Then at 622 and following in substantial the Commissioner set out the chronology of episodes of industrial action that were the subject of Mr Wallwork's evidence and in substance they were concerned in diverse ways with various episodes of industrial action.

PN285

Then at 640, and this is what reference was made in a slightly different context before the break where the Commissioner was setting out submissions put by
Ms Hartley who then appeared for the present respondent, it was contemplated and canvassed as part of the submission that the classifications may not appear but for all intents and purposes other conditions of work are covered. So it's been expressed in a slightly different manner but manifest nonetheless in my submission that is cognisant of the fact that what these employees are doing, their terms and conditions are within the compass of this certified agreement.

PN286

Then at 654, and this again we have looked at in a slightly different light but it's significant I would submit for a number of reasons, this is where having reviewed the submissions and if I can just take members of the Full Bench back to the bottom of 653, it's clear that the Commissioner is now in the territory of making factual findings on what's before him in light of what's been put. The conclusion is reached that there has been industrial action in relation to an industrial dispute about work that is regulated by an order or certified agreement. So having reached that conclusion, I will say something in a minute about whether there's a fusion there, as Mr Kucera put, but there's plainly a finding of fact that there has been industrial action in relation to work that is regulated by an order or certified agreement.

PN287

So having been cognisant from the outset of that distinct jurisdictional source under section 127(1)(c) there is a finding we submit abundantly supported by the evidence before the Commission which then took him past the threshold of that particular jurisdictional prerequisite and allowed him, sourced the jurisdiction for him to make orders in relation to that work and that's the other statutory expression in section 127 which we submit is very important. It might be a separate issue about what "appears" in terms of industrial action that's happening or threatened, pending or probable, but that distinct choice of statutory text and decision making process isn't under challenge here.

PN288

But the in relation to is important and once there's a conclusion legitimately arrived at on the evidence before the Commission that you have got any one of (a), (b) or (c) that's satisfied the in relation to kicks in and that's precisely what Commissioner Gregor proceeded to do. So in those circumstances a narrow debate about the ambit of the classification per se is of not consequence. It's not a territory the Full Bench needs to go into because the jurisdictional foundation couldn't be plainer.

PN289

COMMISSIONER SIMMONDS: Are you taking it as far as if, for example, and I hope it's a very bad example, but if for example the police union here in Western Australia decided to ban traffic works associated with the LKJV that was industrial action, it's in relation to work covered by a certified agreement that it would fall under 127?

PN290

MR HOOKER: That's a consequence of the submission, Commissioner, and that's what I was alluding to that the - - -

PN291

COMMISSIONER SIMMONDS: ..... the stream arising from - the source is live in the stream, isn't it?

PN292

MR HOOKER: I wouldn't concede that, Commissioner, and perhaps we're getting to some nice issues about the ultimate constitutional source of power and the implied incidental power if there's a head of power in section 51. That's what I was nibbling away at at the outset when I suggested that there are some broader issues that are hinted at by the remaining - - -

PN293

COMMISSIONER SIMMONDS: I just wanted to be sure that that's what you were getting at.

PN294

MR HOOKER: Yes. Look, that is a consequence of what I put and I don't shy away from that. The reason why we say the Full Bench doesn't need to go there in all its glory is that for the reasons I've put the jurisdictional prerequisite was recognised from the outset, it was consistently appreciated, the body of evidence supported the conclusion, the factual conclusion that was reached at 654 and at that point that distinct language in relation to did kick in. That justifies the making of the order that then followed. Of course context never ceases to play a role in construction of just about any instrument whether it's a statutory instrument or a regulatory instrument or otherwise and the High Court has repeatedly affirmed the importance of context and the fact that it arises in the first instance not necessarily where an ambiguity may be sought to arise.

PN295

There's no ambiguity here in the text of the order the subject of challenge. It's enlightening to note however that the High Court in a case that I'm simply going to cite, I don't need to take the Full Bench to, but appreciated the rich role that context may play in construction of a certified agreement and that was last year in Amcor Ltd. I don't think it's the Amcor that Commissioner Simmonds had in mind earlier on, Amcor v CFMEU, coincidentally[2005] HCA 10; , (2005) 79 ALJR 703. Again I don't need to go there in detail because it turned on the context of a redundancy, a retrenchment under a particular statutory context in industrial history.

PN296

Here the context really is a lot simpler and a lot narrower. It may be that if we did have the debate in another time and another place about whether tunnellers were bound by the certified agreement, the contextual debate would be a lot more nuanced and a lot more subtle. But here the relevant context is really nothing more than properly appreciating the text of section 127 and asking whether the Commissioner appreciated that distinct jurisdictional prerequisite, applied it consistently and had an evidentiary foundation at the conclusion he'd reached.

PN297

Once that's appreciated in my submission not only does any substance in the proposed appeal ground fall away but it really does manifest itself as something that falls at the leave threshold rather than having any broader import. Can I just make a couple of final observations about what we submit are significant errors in the appellant's outline of submissions, they sit consistently with what I've just been putting more generally, but at paragraph 16 where my learned friend gets to the heart of the argument that tunnellers aren't covered by the certified agreement, the difficulty does become clear and that the heading of itself perhaps discloses that the wrong question is being asked.

PN298

But it's not the case, we submit, that under 127(1)(c) there's any onus to establish that the industrial action that was threatened, et cetera, is or was by persons who are employed in classifications to which the provisions of the certified agreement apply. The Commissioner did find, as the paragraph goes on to say, that there had been industrial action about work regulated by a certified agreement and that's correct and it's that recognition which ought to have been apparent earlier in the paragraph and the way the submission is put it simply recasts section 127. It's not to the point in my submission, and I touched on this a few minutes ago, it's not to the point that there might be on one view of that finding at 654 some fusion between industrial dispute, the paragraph (a) prerequisite, prerequisite.

PN299

The Full Bench doesn't need to construe what that sentence might have meant in that sense. The fact is that there can't be any possible doubt to the proposition that the paragraph (c) prerequisite was the subject of a finding at that point and it sourced the orders that then followed. To return to the point I'm making about my learned friend's outline, the error we submit is perpetuated in the paragraphs that follow because the analysis goes on to hone in on this narrow issue about what the classifications do or don't mean and how one would construe the evidence of
Mr Wallwork and the memorandum of agreement accordingly. I endorse, with respect, what my learned friend Mr Watson has put about that.

PN300

That's equivocal at best and it may be that all of that is simply susceptible to the construction that Mr Wallwork acknowledged implicitly but perhaps the classifications could have been differently put or put with some greater clarity and that a new or varied certified agreement might have changed that. But (a), that doesn't lead to the conclusion that there's necessarily any shortcoming in the classifications as they're currently drawn, and (b), more fundamentally, it doesn't matter because 127(1)(c) the relevant finding was made.

PN301

So the error and the asking of that incorrect question is perpetuated in my learned friend's outline, with great respect, and it's culminating in the conclusion that's drawn at paragraph 26, the relief sought by the appellant being a variation of the order that would have the practical effect of exempting not only the tunnellers but also the CFMEU in its dealings and the dealings of other individuals and so on with people who are employed as tunnellers. That in another way in a focus that's concerns with outcome, perpetuates the error to which I have referred. So it follows in the intervener's submission for those reasons that leave to appeal ought be refused.

PN302

Nothing has been put with sufficient cogency to demonstrate a sufficient public interest. The sole ground of appeal properly appreciated is concerned with a little more than this Commissioner's approach to section 127 on the evidence before him and the factual findings he made. Nothing of greater import, although it might be hinted at, emerges for actual resolution by this Full Bench. If it please the Commission, those are the submissions we would make.

PN303

SENIOR DEPUTY PRESIDENT HARRISON: Mr Kucera, we will hear you in reply on the question of leave.

PN304

MR KUCERA: This appeal proceeds, we submit, on - and we go back to our notice to the appeal that we have filed in relation to this matter, paragraph 6 of the notice of appeal states:

PN305

The appeal is of such importance that in the public interest leave to appeal should be granted.

PN306

And then we particularise as follows, the scope of the order issued by the Commission is wide and the term of the order is a period of in excess of 18 months. The order imposes serious obligations and extensive limitations on the industrial rights of those bound by the order which include not only the CFMEU, its officers, et cetera, but also persons that are members of the CFMEU who are direct employees of LKJV. Then we also say that the substantive grounds of appeal raise serious issues as to the velocity of the decision and order, including the prospect of jurisdictional error, error in the decision making process and that the order is void for ambiguity and/or lack of specificity.

PN307

If I could take you back to section 45 of the Act, I suppose our submission now would need to be the appeal proceeds in two ways. Firstly, it's an appeal under section 45(1)(b) which is an appeal against an order made by a member of the Commission other than an award or order made by the consent of the parties to an industrial dispute. So it's an order made by a member of the Commission and then section 45(1)(g), a decision of a member of the Commission, that the member has jurisdiction in a matter arising under this Act. So of course what we submit is that there was an error at first instance that appears in the reasons for decision. We're appealing against that under section 45(1)(g), and then appealing against the order that followed that was consequent upon the publishing of the reasons for the decisions.

PN308

Now, in terms of the test that needs to be applied by the Full Bench you then go to section 45(2) -

PN309

A Full Bench shall grant leave to appeal under subsection (1) if in its opinion the matter is of such importance that in the public interest leave should be granted.

PN310

And what we say is that the notice of appeal is an attempt to merely state that that's the basis on which we're appealing. The leave ought be granted and in terms of section 45(2) in the short break that we had I pulled something out, the nature of the Full Bench's power to grant or refuse leave was explained by Spender, Moore and Branson JJ in the Construction, Forestry, Mining and Energy v The Australian Industrial Relations Commissioner and I will give you that citation. It's [1998] FCA 1404; (1998) 89 FCR 200 at 220, and the relevant passage - - -

PN311

COMMISSIONER SIMMONDS: Can you give us that again, please.

PN312

MR KUCERA: I can slow down and repeat that. It's [1998] FCA 1404; (1998) 89 FCR 200 at 220. Then at page 220 of the decision the relevant paragraph is as follows:

PN313

It can be seen from section 45(1) that an appeal lies with a Full Bench only with the leave of the Full Bench. Section 45(1) confers ..... forms the requisite opinion.

PN314

And then it goes on and this is the important part of the passage that I'm referring you to:

PN315

The conventional considerations for the granting of leave including whether in all the circumstances the decision is attended with sufficient ...(reads)... for the grant of leave.

PN316

Now, in the present case we'd say that this is a matter whereby substantially injustice would result if leave was refused potentially and we say that the substantial in justice is as we have particularised. What the order does is it imposes serious obligations and extensive limitations on industrial rights of all those persons who were subject to the order including tunnellers and of course in terms of the question of public interest again, a further argument is that the submission that's just been advanced by my friend appearing for the ABCC is that he's advancing a submission in relation to section 127 that is extremely broad in our respectful submission and itself is a matter of such public importance because if accepted by the Bench it would have the effect, we would say, of imposing serious limitations into the future on the industrial rights of some workers.

PN317

In terms of the arguments that we would make, one of the matters that we say that needs to be considered is obviously the strength of the case and we'd say that the decision is attended with sufficient doubt to warrant leave being granted because we'd say in our respectful submission have a strong prima facie case. If I can take you back to the point that was being advanced about the agreement, the agreement on its face is ambiguous. When I previously made my submission and I was listening carefully to some of the questions that were being asked of my friend when he was making his submissions, we previously only referred you to paragraph - on page 33 of the appeal book, paragraphs PN275 and 276.

PN318

The actual part of the cross-examination which starts to cast some doubt on whether or not tunnellers are caught by the certified agreement starts on page 32 and what happens if you're able to go through the transcript is there is some questions there about who are and who aren't covered by the provisions of the certified agreement. It's conceded by Mr Wallwork at PN264 which appears on page 32, the finishing trades aren't listed in the structural agreement and then in response to a question:

PN319

In fact there's a few classifications that are not in the structural agreement, aren't they?---That what, are relevant to?

PN320

And I said:

PN321

To your project?---Yes, absolutely.

PN322

Then he was asked about what classifications and he said:

PN323

Electricians.

PN324

And then he tried to say:

PN325

Well, yes, they're represented by a separate union.

PN326

He conceded that. Then he said plumbers at PN269. At PN271 he conceded that other classifications aren't provided for in the certified agreement including metal trades and then obviously because of the proceeding that took place in front of Deputy President McCarthy who's alive to this issue, this is where when the question of tunnellers is posed we'd submit the witness actually tries to dodge the issue and that's where he says he concedes the classifications aren't spelt out but he says the tunnelling works are included.

PN327

So that's quite a useful exchange in terms of the certified agreement we would because if you look at the certified agreement and the submissions being advanced by my friend, Mr Watson, if you were to accept his submission, if I could take you to the classification that appears for a CE5 - it's actually a CE4 which is the trade equivalent, it specifically identifies particular trades, carpenter, bricklayer, painter, plasterer, certified rigger holding an advance certificate, and then what you have is a situation where if you look at the agreement statutory declaration, 6.2 which - and these statutory declarations are in the same - there's one there for Mr Bevan and one there for Mr Reynolds, the relevant award which regulate the terms and conditions of employment of employees.

PN328

There's two awards that are cited there that were relied upon for the purposes of assessing the no disadvantage test and the two awards are the National Building and Construction Industry Award and the Engine Drivers Building and Steel Construction Award. Now, it's worth noting and I don't have the awards with me, but it is worth noting and it may be a matter that you wish to consider when you adjourn later that both awards do not contain any classifications for tunnellers. The National Building and Construction Industry Award contains some of those classifications that I've just referred to in CE4 as an example.

PN329

The Engine Drivers Building and Steel Construction Award exclusively contains classifications for crane operators but neither award makes any reference to classifications for tunnelling employees. Now, previously I referred to a decision of the Full Bench of the Western Australian Industrial Relations Commission, if I could just take you to page 1293 of that particular decision and at the top of page 1293 this passage appears:

PN330

One is conscious that whilst the ordinary principles of legal interpretation in general govern awards one should not too readily apply those ...(reads)... not always from formal draftsmanship.

PN331

What we're saying is that there is sufficient ambiguity in the agreement for you to have some recourse to the intrinsic materials and the most significant intrinsic material and it was before the Commission at first instance and is again before you in this case is the memorandum of agreement and our submission is that the reason why the memorandum of agreement was entered into was because there were no classifications in there for tunnellers. Now, the significance of that when you come to section 127 is why we say this is a matter of such importance, and this is where we differ with our friends and it's a significant point on the application an interpretation of section 127, section 127(c) says:

PN332

Work that is regulated by an award or certified agreement.

PN333

In our respectful submission work is defined by reference to the classifications that appear in the agreement and that's how you define the work. The scope clause which has been referred to by Mr Watson defines where the work is carried out. Now, as an example, on a general construction, civil construction project like this what happen is, you have to construct the structures from which the tunnelling operations commence and of course it would not in our respectful submission have been inaccurate for Mr Reynolds to say in his statutory declaration that this statutory declaration applies to the classifications described in the agreement at that time when the agreement was first entered into because at that point, and we know this from Mr Wallwork's evidence, there was no tunnelling operations happening on the project.

PN334

At paragraph 196 of his witness statement he actually says that the tunnelling was due to commence. It hadn't commenced and the tunnellers don't actually commence work until the tunnel operations start. So in a nutshell what we say is there's a couple of key points and it's very, as we say, it's important for the purposes of the application of section 127 into the future. Work is defined by the classifications as they appear in the agreement. If there's no classifications in the agreement then the work isn't regulated by a certified agreement. In that circumstance we would submit the respondents weren't able to establish the jurisdictional prerequisite that was required and because in our respectful submission that the decision is attended with sufficient doubt, it is a case of such importance given the material implications for the employees for the breach of a section 127 order that leave ought be in the public interest granted.

PN335

As the Full Bench in the Coal and Allied case noted, the issuance of a section 127 order is a serious step because it arms the Federal Court with jurisdiction and ultimately if the employees breach the order there are serious consequences that follow and in our respectful submission leave ought be granted and we've dealt with that as a separate and discrete point. In terms of broader merits, perhaps there may be some further matters that will need to be heard on once or if
Mr Watson makes his submission.

PN336

SENIOR DEPUTY PRESIDENT HARRISON: Mr Watson.

PN337

MR WATSON: If the Commission pleases, might I by leave make some brief submissions in reply to what's fallen from my learned friend in relation to the question of leave because he did put some different material in reply to what he put at first instance?

PN338

SENIOR DEPUTY PRESIDENT HARRISON: What do you want to address us on? What are the topics you want to address us on?

PN339

MR WATSON: The topics are firstly the alternative ground based on alleged injustice.

PN340

SENIOR DEPUTY PRESIDENT HARRISON: (b) - no, I'm so sorry.

PN341

MR WATSON: Based on the Coal and Allied submissions about that.

PN342

SENIOR DEPUTY PRESIDENT HARRISON: Yes.

PN343

MR WATSON: Also his reference to other parts of the transcript briefly and thirdly, he mentioned an award and we have a copy of the award and we wish to refer to that briefly in relation to the point that he mentioned.

PN344

SENIOR DEPUTY PRESIDENT HARRISON: What awards, the two in the statutory declaration?

PN345

MR WATSON: The National Building Trades Construction Award.

PN346

SENIOR DEPUTY PRESIDENT HARRISON: Proceed.

PN347

MR WATSON: Thank you, your Honour. Very briefly, my learned friend's point about there being an alleged injustice would apply to anyone covered by the order and not simply the tunnellers and if my friend learned friend's submission is correct leave would be granted to the appeal in relation to any section 127 order because of that consequence. We say that in order to satisfy that particular requirement it must be far more demonstrated an argument with substance and credibility in relation to a matter where employees might have thought they were not covered and therefore didn't need to answer the case or something of that nature and that's clearly not the case here.

PN348

My learned friend referred again to the transcript but declined to read paragraph 273 which simply highlights - it's page 33 of the appeal book, highlights the equivocal nature of the cross-examination and which appears to be a basis for a construction argument and again we say it doesn't take my learned friend any further in terms of the substance of that ground. I think we have provided in the materials we've handed to the Bench extracts from the National Building Trades Constructions Award - National Building and Construction Industry Award 1990.

PN349

The submission of my learned friend was because that and another award were referred to and there are no classifications in relation to tunnelling, therefore it must have been intended that tunnellers weren't included by reference to that extraneous material, however, when one looks at the classification structure and I'm not going to suggest this award is easy to understand in terms of its meaning and classifications, however at clause 19.3.1(f)(2) which is at page 58 of the copy I have - - -

PN350

SENIOR DEPUTY PRESIDENT HARRISON: Page 48?

PN351

MR WATSON: Yes, your Honour. If I might go back to page 50 is the start of clause 19.3 which is classifications and related issues and it proceeds in a similar way to the agreement to various classifications and page 58, clause 19.3.1(f)(2) - sorry (f)(3), there is a paragraph that says:

PN352

Indicative tasks that the employee may perform at this level include the following -

PN353

And it says:

PN354

Operates plant and equipment at a higher level of skill than CW5.

PN355

This is part of the definition of CW6. Then in the definition of CW7 there's grades at the bottom of page 59:

PN356

Works on plant and equipment at a higher level of skill than CW6.

PN357

And I think there may be other similar terminology, yes, at page 61, in relation to CW8. So what we say is that the concept that's referred to in the agreement of other equipment not specifically referred to is a concept in the award. The award uses the same sort of general generic descriptions and to suggest that when one can't find a specific piece of equipment mentioned that therefore there is a lacuna in the application of an award or an agreement we say is a submission without substance and these concepts ought to be understood and applied.

PN358

There is no question, we submit, that equipment of the type would be covered by this award if this award applied to the respondents. There is no question that the agreement applies to the tunnellers and we say that that's not even ambiguous on the terms of the instrument. Of course one can be more specific and have a more specific classification but that doesn't mean that in the absence of a specific classification the instrument does not apply.

PN359

SENIOR DEPUTY PRESIDENT HARRISON: We will adjourn for a short time.

<SHORT ADJOURNMENT
<RESUMED

PN360

SENIOR DEPUTY PRESIDENT HARRISON: The Full Bench is not persuaded that the grounds of appeal raised matters which in the public interest or otherwise warrant the grant of leave to appeal. We will publish our reasons for that decision in due course. The Commission now adjourns.

<ADJOURNED INDEFINITELY [12.28PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #LEIGHTON1 STATUTORY DECLARATIONS PN240
EXHIBIT #CFMEU1 SUBMISSIONS OF MR KUCERA PN241
EXHIBIT #LEIGHTON2 SUBMISSIONS OF MR WATSON PN241