C2006/2457, Transcript of Proceedings [2006] AIRCTrans 694 (2 May 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 14878-1

DEPUTY PRESIDENT HAMILTON

C2006/2457

CPSU, THE COMMUNITY AND PUBLIC SECTOR UNION
AND
VICTORIA LEGAL AID
s.170LW - Application for settlement of dispute (certification of agreement)
(C2006/2457)

MELBOURNE

10.26AM, THURSDAY, 20 APRIL 2006

Hearing continuing

PN1

MS K DOUGLAS: I appear for the CPSU together with me MR J BACKWELL.

PN2

MR R MILLAR: I seek leave to appear on behalf of Victoria Legal Aid, the respondent to this matter.

PN3

THE DEPUTY PRESIDENT: It does indeed please the Commission. Any objections?

PN4

MS DOUGLAS: Yes, your Honour. We do object to counsel being present today. This is not a technical nor complex issue. The Industrial Relations Victoria policy requires that the parties try and conciliation and not use lawyers in these instances and we think that as a matter of procedural fairness it’s not technical, we can resolve it with the VLA staff representative.

PN5

THE DEPUTY PRESIDENT: Do you see it like that, Mr Millar?

PN6

MR MILLAR: Well, your Honour, the matter has unsuccessfully been through conciliation. We’re here to arbitrate it. It’s a matter that gives rise to a number of issues of statutory construction as well as issues concerning the merits of the matter. As will be seen from the submissions of the respondent as a threshold issue there are a number of jurisdictional objections which are raised. They are matters dealing with the construction of the Act, the application of - - -

PN7

THE DEPUTY PRESIDENT: I think something like seventh-eighths of your submission is jurisdictional. I haven’t counted the exact number of paragraphs.

PN8

MR MILLAR: Certainly that would be a fair summation I think, your Honour. Those matters are matters of law and are proper for the attendance of counsel.

PN9

THE DEPUTY PRESIDENT: Do you want to respond to that? You don’t have to.

PN10

MS DOUGLAS: Our argument still stands, your Honour. This is not a technical or complex nature and we object to counsel being here.

PN11

THE DEPUTY PRESIDENT: Well look, I have read the submissions and there are significant legal issues, I think, raised and I will allow counsel to appear. Obviously if there were some issue of conciliation and the like the role of counsel would, I hope, be consistent with the requirements of conciliation. Now, thank you for that. Are there any other preliminary matters?

PN12

MS DOUGLAS: Yes, your Honour, if I may. We seek that the material that VLA handed over yesterday afternoon be excluded for timing.

PN13

THE DEPUTY PRESIDENT: On what basis?

PN14

MS DOUGLAS: On the grounds of lateness. The Commission was quite clear in their instructions to the parties that the submissions be on our part handed over by 12 April. We satisfied that requirement of the Commission. The VLA then began a process of a bit of to-ing and fro-ing in this matter. The Commission were unable to get hold of myself on Thursday before Easter. Whether VLA, as I understand it, have made submissions that they want to the matter to be held over, if they could have more time. The Commission, out of a matter of issue of fairness, gave that extra time as I understand it on the Thursday, as I said without being able to get in touch with us. But that’s okay, that was just the circumstances at the time.

PN15

THE DEPUTY PRESIDENT: Easter, I think.

PN16

MS DOUGLAS: That’s right, Easter. That happens. We find out Tuesday morning that the extension of time has been granted. Working on that basis an hour later the Commission calls us again to say that the VLA have changed their mind, that they do indeed want to go ahead with today’s hearings and that on that basis they had committed to the Commission to have the submissions to the Commission by close of business Tuesday the 18th. We did not receive the submissions and they were fairly - - -

PN17

THE DEPUTY PRESIDENT: When did you receive them?

PN18

MS DOUGLAS: Well, they were receipted in my office at 2 o'clock yesterday afternoon through. They were hand delivered by Middleton’s as I understand it. I wasn’t there.

PN19

THE DEPUTY PRESIDENT: Right.

PN20

MS DOUGLAS: I then received the submissions, these, by email. It hit my inbox about half past two, but I didn’t return to my desk until 10 to five at which point I sent an email back to Mr Howard saying I’d only returned to my office. So really, at 10 to five yesterday afternoon I was handed this level of documentation. The VLA initially wanted to postpone and then changed their mind and committed to have the submissions to both to the parties by 4 o'clock or close of business on Tuesday.

PN21

THE DEPUTY PRESIDENT: Yes.

PN22

MS DOUGLAS: It’s not an appropriate manner in which to conduct proceedings in the Commission we say. Also what we’re seeking is minor. It’s not unreasonable. It’s not going to impact on VLA’s operations. This is a performance issue, your Honour.

PN23

THE DEPUTY PRESIDENT: So what are you asking me to do?

PN24

MS DOUGLAS: Well, strike entirely their - - -

PN25

THE DEPUTY PRESIDENT: Disregard their submissions entirely?

PN26

MS DOUGLAS: Yes on the grounds of lateness.

PN27

THE DEPUTY PRESIDENT: All right. Thank you very much. Mr Millar, I don’t want to, you know, I’m not personally attributing blame to you, if I could put it that way, but clearly it’s fairly unsatisfactory on its face.

PN28

MR MILLAR: I can understand that, your Honour.

PN29

THE DEPUTY PRESIDENT: I mean directions have been breached. Your client, Legal Aid, has engaged in quite extensive and varying discussions with my office about appropriate dates. In the interests we’ve done what we always do, which is to try and meet the interests and requirements of the parties. We do that. We make an effort, if I could put it that way, in order to assist the parties and whether it’s Legal Aid or the CPSU or someone else we always make an effort. But it’s a little bit unimpressive from where I stand if I could put it aside for one moment the issue of the CPSU’s application. It’s hardly impressive, is it?

PN30

MR MILLAR: Well, I can understand that, your Honour. The time lines provided by the directions were short and the parties are simply trying to do the best they can to comply with the expectations of the Commission with the time lines that are provided. The CPSU material was received by my instructors, I’m told, on Friday morning and in the strict sense of the compliance with the directions those submissions were late on my instructions.

PN31

THE DEPUTY PRESIDENT: Well, they were due at five the previous night or something?

PN32

MR MILLAR: It wasn’t a serious breach, but given that there was really only then one full business day between that day, last Thursday - I might have said Friday, I actually meant the end of last week which was Thursday.

PN33

THE DEPUTY PRESIDENT: I’m starting to get confused.

PN34

MR MILLAR: Yes. They were received on the Thursday morning. There was then the Easter break and Tuesday was the only full business day in between and the documents were to be filed by the end of Wednesday. But if we could go back to Thursday the position my instructors then found themselves in was that the submissions had only just been received. There were substantial matters to be canvassed and with the deadline of the following Tuesday it was always going to be difficult to meet that. So that’s why contact was made with the Commission to seek an adjournment.

PN35

The Commission quite kindly acceded to that request, but that notification wasn’t known to my instructors until Tuesday by which time much of the preparation work had been done and the alternative dates proposed created more problems than they solved. So the respondent found itself in the position where the preference was to go ahead on Thursday rather than take up the offered adjournment. So that’s the background to the matter. The documents were filed and served, as I understand it, early yesterday afternoon.

PN36

THE DEPUTY PRESIDENT: So should I exclude those submissions or what should I do?

PN37

MR MILLAR: No, sir. They shouldn’t be excluded. They were properly filed and served, only a few business hours late.

PN38

THE DEPUTY PRESIDENT: I see. And Easter intervened which removed a day or two.

PN39

MR MILLAR: The cases dealing with the exclusion of material submitted by the parties are usually associated with lengthy delays and non-compliance by parties which is flagrant. This is not that sort of case. This is a case of missing a deadline by a few hours where, in my submission. On my instructions the applicant did exactly the same thing. As I opened, your Honour, the parties are simply trying to do the best they can with these time lines. If my friend is saying that the applicant is disadvantaged by having received the submissions yesterday afternoon, and I readily acknowledge that they are complex and give rise to issues which would have been difficult to adequately address for the applicant in the time available, then that can be cured by other steps if they need time to properly deal with it.

PN40

THE DEPUTY PRESIDENT: By adjournment you mean?

PN41

MR MILLAR: Well, I don’t seek an adjournment. I seek to press ahead.

PN42

THE DEPUTY PRESIDENT: No, but you won’t oppose an adjournment if that’s sought?

PN43

MR MILLAR: Well, that’s the appropriate remedy, not the exclusion of the materials from the respondent. If the Commission pleases.

PN44

THE DEPUTY PRESIDENT: All right. Do you want to respond to that? You don’t have to.

PN45

MS DOUGLAS: Yes I would like to, thanks your Honour. The documents were delivered to VLA by courier and I don’t have the receipt on me, but it was
4.30 pm on Wednesday that they were received by the VLA. Now, if the VLA don’t have a system in place that got the paperwork to the appropriate people within a fairly rapid time. That’s not a responsibility of the CPSU.

PN46

THE DEPUTY PRESIDENT: Wednesday or Thursday?

PN47

MS DOUGLAS: The Wednesday. They were required to be there on the 12th and they were at 4.30 pm and that’s what the courier informed us, that’s when they were delivered. So we still move to have the documents excluded on the grounds of lateness and that the Commission, well we seek a remedy as outlined in our submissions that were submitted on time.

PN48

THE DEPUTY PRESIDENT: Yes, all right. Thank you for that. Well look, in the circumstances I won’t exclude the material. It is regrettable, but Easter was the intervening period. I do repeat however that directions are there to be complied with. Now, is there any pointing attempting conciliation again? I mean, I’ve read this material and it’s, to say the least of it, it should be amenable to some form of compromised result. I’ve got no idea what and I certainly don’t seek to involve myself in conciliation given the stage these proceedings have got to. I suppose if I was requested, I’ve got no idea. I haven’t thought about that.

PN49

But is there any point in having this matter conciliated? Just wave heads. They’re just having a consultation. I mean, what do you think Mr Millar? I’m not twisting your arm. I’m genuinely interested in trying to get an amicable solution.

PN50

MR MILLAR: It’s an entirely proper suggestion there if I can say so with respect, your Honour. But the parties have been down the track before.

PN51

THE DEPUTY PRESIDENT: And there’s no prospects you say?

PN52

MR MILLAR: There’s, I think, no serious prospect.

PN53

THE DEPUTY PRESIDENT: All right.

PN54

MR MILLAR: There’s no reason for optimism that we’ll succeed today where we’ve failed before. Having said that there is material before the Commission that suggests that attempts at resolution haven’t failed in the past, in fact that they were successfully resolved at one stage and that is something that weighs on the mind of the respondent in going down that path again. Do you understand what I’m saying?

PN55

THE DEPUTY PRESIDENT: No, I don’t.

PN56

MR MILLAR: Your Honour, you will see that - - -

PN57

THE DEPUTY PRESIDENT: It’s probably my fault.

PN58

MR MILLAR: No, it was somewhat opaque. The submissions of the respondent give rise to a third jurisdictional argument which is that the matter has been resolved at an earlier stage.

PN59

THE DEPUTY PRESIDENT: Section 99 issue, yes.

PN60

MR MILLAR: The section 99 issue gave rise to discussions which successfully resolved the matter and this application is, as has been said in the submissions, a carbon copy of the earlier agitation of the issue. For that reason because it’s resolved once before and we still find ourselves here we can see little prospect of being able to resolve it again.

PN61

THE DEPUTY PRESIDENT: I see.

PN62

MS DOUGLAS: Thank you, your Honour. I certainly disagree with my friend’s statement that the matter has been resolved at the section 99. That evidence has been, as I quickly perused this large file yesterday afternoon, I could see that’s the attempt of the line of argument the VLA are trying to pursue. Given the lateness of the documentation we have evidence that would indicate that that’s just
simply - - -

PN63

THE DEPUTY PRESIDENT: All right.

PN64

MS DOUGLAS: We would be happy to go to conciliation. Indeed when the 170LW was lodged and heard before Commissioner Grainger on 30 March conciliation was refused by VLA, your Honour. We have constantly tried to have a genuine discussion about this matter and it just has not occurred.

PN65

THE DEPUTY PRESIDENT: All right. Thank you.

PN66

MR MILLAR: Just on that I should record for the record that that submission is strenuously opposed by the respondent because there was no attempt to frustrate or undermine the usual processes of the Commission. Conciliation was embarked upon in good faith. The fact that the matter didn’t resolve there is obviously on the record because we’re here today. But the respondent has engaged in conciliation. We see little prospect, unless there’s something new that the applicant wishes to discuss with us, we see little prospect of the matter being resolved.

PN67

THE DEPUTY PRESIDENT: I understood. Well look, I can’t take it any further. Conciliation depends on both sides and it’s simply not the case that both sides see prospects of success and in those circumstances we perhaps proceed, I think, unless you want to say something?

PN68

MS DOUGLAS: Well yes I do, your Honour. We clearly, we need to seek an adjournment. I mean, this level of documentation that’s handed up 10 minutes before close of business yesterday is just outrageous and probably reflective of the way VLA have treated the union and our member in this instance. We’re left with no option but to seek an adjournment so we can have a right of reply to the detail that’s being provided and have an opportunity to - - -

PN69

THE DEPUTY PRESIDENT: All right. Look, one way of using today would be to hear what the jurisdictional objection is. I don’t know if - one of the jurisdictional objections I note is that this matter doesn’t concern the application of the agreement. I have the agreement in front of me. Which clause are you seeking to apply? Can you deal with that today, Ms Douglas?

PN70

MS DOUGLAS: Mr Backwell will deal with the jurisdictional matter, your Honour.

PN71

THE DEPUTY PRESIDENT: Right. Is it you? I mean, I don’t want to prejudice you in any way, but - - -

PN72

MS DOUGLAS: Well, we have been prejudiced.

PN73

MR BACKWELL: Your Honour, I suppose if I may make some preliminary submission on this and if you so choose that you believe it needs further extensive legal argument we would seek that an adjournment - - -

PN74

THE DEPUTY PRESIDENT: I see. That’d be useful, yes.

PN75

MR BACKWELL: Yes because again receiving this so - - -

PN76

THE DEPUTY PRESIDENT: We might as well make the best use of today as we can.

PN77

MR BACKWELL: Yes, certainly sir.

PN78

THE DEPUTY PRESIDENT: Rather than losing the time.

PN79

MR BACKWELL: Yes. So if I just may caveat that, that there is quite a number of legal submission as well here. To go to the first point that is in relation to section 170LW, that it’s not within section 170LW, the argument from the respondent is that there is no nexus case, the nexus argument.

PN80

THE DEPUTY PRESIDENT: Yes. There’s no clause that this is about.

PN81

MR BACKWELL: Yes. Now, it goes to the two agreements that are here. The agreement of 2003/2005 is the period of which - - -

PN82

THE DEPUTY PRESIDENT: They’re attachments 3 and 4 to the Victorian Legal Aid submission, which I'll mark since we’re talking about it.

EXHIBIT #VLA1 SUBMISSIONS OF VICTORIA LEGAL AID

PN83

THE DEPUTY PRESIDENT: Now, attachments 3 and 4 seem to have the two enterprise agreements we’re talking about. So I have them in front of me so just take me through just briefly which clauses this matter concerns.

PN84

MR BACKWELL: Thank you, your Honour. So it arises from the time period, the temple issue arises in the 2003/2005. But by the time 2005/2008 is on foot is when the 170LW arises. Now, using the principals that was articulated by Commissioner Grainger in the matter of Robertson v DHS, it was a matter that occurred last year and I’m sorry, sir, I do not have the PR number due to lateness of preparation time, but in that one the specific issue arose as to whether or not there is some form of cross over from a prior agreement into the new agreement.

PN85

THE DEPUTY PRESIDENT: Right.

PN86

MR BACKWELL: Okay? Whether an issue that arose in the previous agreement could be taken to a dispute settlement in the latter agreement. He found in that jurisdictional question that it could be and so we would rely on that and that would therefore answer the - - -

PN87

THE DEPUTY PRESIDENT: Wouldn’t it depend on the terms of the agreement?

PN88

MR BACKWELL: I’m sorry?

PN89

THE DEPUTY PRESIDENT: Wouldn’t it depend on the terms of the agreement?

PN90

MR BACKWELL: Yes.

PN91

THE DEPUTY PRESIDENT: Because we’re dealing with the same set of agreements here or different agreements, differently worded agreements?

PN92

MR BACKWELL: They are different agreements, yes. The one that Robertson v DHS - - -

PN93

THE DEPUTY PRESIDENT: You see, an agreement might carry over rights or it might not.

PN94

MR BACKWELL: Yes certainly and we accept that. In this instance we’d argue that it does.

PN95

THE DEPUTY PRESIDENT: Okay.

PN96

MR BACKWELL: Okay? And we would argue on the following grounds.

PN97

THE DEPUTY PRESIDENT: Yes. First of all just tell me which clause in which agreement are we dealing with, if you could?

PN98

MR BACKWELL: Yes, certainly. It’s actually a variety of clauses.

PN99

THE DEPUTY PRESIDENT: Okay.

PN100

MR BACKWELL: Okay? If I can take you to perhaps the most overarching one in the first agreement it is to be found in the preamble.

PN101

THE DEPUTY PRESIDENT: Okay.

PN102

MR BACKWELL: That the Victoria Legal Aid seeks always to act in accordance with these values. I go to point 2, to act with integrity, fairness and transparency at all times. We believe that in this matter Victoria Legal Aid has not done that in accordance with that preamble.

PN103

THE DEPUTY PRESIDENT: Right.

PN104

MR BACKWELL: The 2003/2005 certified agreement is somewhat empty. It was really established to set some business propositions forward and to give some money. The 2005/2008 is far more extensive. But if we were to look at some of the matters that will also arise in the 2003 agreement we can see the preamble, which I’ve already mentioned. If I may take your Honour to clause 4.

PN105

THE DEPUTY PRESIDENT: Yes, objectives of the agreement.

PN106

MR BACKWELL: Yes. (d):

PN107

The promotion of mutual trust, cooperation and open communications between management, employees and the CPSU.

PN108

We believe that this goes directly to this in that Mr Streager, a person who is subject to this issue, was not actually told that he had not received his performance rating and we believe that that therefore goes to the issues of trust. Clause 6.1, if we were to look at 6.1 at dot point 2 - your Honour, this is on page 5 of the certified agreement.

PN109

THE DEPUTY PRESIDENT: I have it. It’s page 4 on my print.

PN110

MR BACKWELL: I beg your pardon. Yes, it probably, yes.

PN111

THE DEPUTY PRESIDENT: I’m working off the one in attachment 3 to VLA1. It’s probably easiest to work off that one.

PN112

MR BACKWELL: Yes, sir. I will do so. 6.1 page 4. If I may take you to dot point 2:

PN113

Supporting and promoting high levels of individual performance through training and development frameworks and performance management system.

PN114

So there’s an automatic nexus. The system that is subject to the dispute here is the performance management system. Now, obviously with these certified agreements you do not create war and peace each time you do them. They must naturally rely on the policies and procedures. If we see a problem with the policies and procedures we then take it forward through the internal dispute resolution procedures and then at last resort to hear. But again to emphasise that the nexus is here. If I may take you again to 6.1 to dot point 5:

PN115

Attracting and rewarding highly skilled and experienced staff through a remuneration structure complimentary to VLA’s role and vision.

PN116

This talks to the issue of progression payments and the requirement that if you receive an adequate rating you will receive your progression payment. Again the subject of the dispute here. If I may also take you to clause 10.2.5:

PN117

VLA will always act in accordance with its core values.

PN118

I’m uncertain exactly what those core values are, but it certainly does say:

PN119

Satisfied employees will contribute to a positive staff client relationship. Fair compensation to employees. Employees shall be rewarded for additional extraordinary demands over and above normal expectations through the performance management system.

PN120

Again the reference there. If we were to look at the new agreement, and again, your Honour, I wish to caveat my preliminary submissions in that I haven’t had the full opportunity to be able to detail every specific relevant clause.

PN121

THE DEPUTY PRESIDENT: Yes.

PN122

MR BACKWELL: But if we were to look at the new agreement, this is the 2005/2008 - - -

PN123

THE DEPUTY PRESIDENT: In attachment 4, yes, to VLA1.

PN124

MR BACKWELL: Yes. If I may take you to clause 5, I think, is worth some attention to in relation to dispute avoidance and settlement. And if I may compare clause 5 to the previous dispute settlement clause in the previous certified agreement we will notice that there is some change there, quite extensive change. The clause in the previous certified agreement, which is clause 13.

PN125

THE DEPUTY PRESIDENT: What’s the change?

PN126

MR BACKWELL: We see a much more extensive mechanism, but certainly it looks at issues that arise in the implementation, application and interpretation of matters contained in this agreement whereas we see in clause 5 of the 2005 agreement:

PN127

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

PN128

THE DEPUTY PRESIDENT: So it’s any agreements really. It’s not limited - - -

PN129

MR BACKWELL: It’s, in my submission, is that it’s extending the dispute aspect to it. In relation to, again just refining the nexus between the agreements before you today, if I might take you to clause 6 procedural fairness to apply. This could not be more direct than the issues that we have at hand because our submissions are that Mr Streager was denied procedural fairness and natural justice and through the process that he was placed through. I suppose again in my preliminary comments to this aspect of the jurisdiction I would also make this comment, if I may.

PN130

If we can not get an issue in relation to the non-payment of performance pay into a jurisdiction of the Industrial Relations Commission, then what are we here for? Regardless of the nature of the Act one of the objective is so settle and prevent industrial disputation. Performance pay, not getting it, is an issue about reasonableness. Was that decision reasonable or unreasonable? This is the bread and butter of industrial disputation. This is the stuff that we deal with every single day within this forum.

PN131

THE DEPUTY PRESIDENT: Is performance pay dealt with in the agreement or is it an extra agreement issue? An over agreement issue, whatever the phrase is?

PN132

MR BACKWELL: I would suggest that it’s natural implied in relation to
the - - -

PN133

THE DEPUTY PRESIDENT: So it’s not directly dealt with but you say it’s implied.

PN134

MR BACKWELL: It is by the progression payments which are included in the agreement.

PN135

THE DEPUTY PRESIDENT: Progression payments?

PN136

MR BACKWELL: Yes.

PN137

THE DEPUTY PRESIDENT: Is that what we’re dealing with here, progression payments?

PN138

MR BACKWELL: Yes because that goes to performance pay. If you do not receive your performance rating you do not receive your progression payment.

PN139

THE DEPUTY PRESIDENT: Right.

PN140

MR BACKWELL: Okay?

PN141

THE DEPUTY PRESIDENT: Okay.

PN142

MR BACKWELL: So that would be my preliminary answer to the first jurisdictional hurdle. The second jurisdictional hurdle is the issue of juridical power.

PN143

THE DEPUTY PRESIDENT: Yes.

PN144

MR BACKWELL: And I'll cram. Look, again we would say we’re seeking an arbitration of this as an arbitration through 170LW. We do not seek some specific juridical order and I believe that it’s our submission that the submissions from
Ms Douglas actually go to a natural arbitral decision.

PN145

THE DEPUTY PRESIDENT: Sure.

PN146

MR BACKWELL: The final one goes into proceedings compromised by settlement. If I may just very briefly speak to that. I suppose, your Honour, that settlement is a bit like a contract. It requires offer, acceptance and consideration. It requires two parties. We certainly do not see this matter as settled and have said so. And if I may just hand up a matter, an email. It is not part of the submissions so I make that clear that this is because of the lateness of the issues. This is to do with, if I’m correct, it is an agreement between the parties to sit down and try to work things out.

PN147

THE DEPUTY PRESIDENT: I'll mark this shall I?

PN148

MR BACKWELL: Yes, if I may.

EXHIBIT #CPSU1 EMAIL FROM KAREN DOUGLAS TO KYLIE SMITH

PN149

MR BACKWELL: If the Commission pleases.

PN150

THE DEPUTY PRESIDENT: That’s an email from Karen Douglas to CaseTracker?

PN151

MR BACKWELL: I beg your pardon. CaseTracker is our system. You’ll see it goes to Kylie Smith. It’s a reply matter from Karen Douglas to Kylie Smith.

PN152

THE DEPUTY PRESIDENT: Sure.

PN153

MR BACKWELL: Kylie Smith is of the VLA.

PN154

THE DEPUTY PRESIDENT: Indeed.

PN155

MR BACKWELL: CaseTracker is an anonymous person which is our, just so that everyone’s clear, it is our systems of recording:

PN156

Kylie, we agreed to cancelling today on the basis that the parties will sit down and talk which should have happened a long time ago. Michael and I have had a conversation, but my comments to Michael were, I believe, very clear that we start from a position of effective -

PN157

This is to do with the rating -

PN158

- that we start from a position of effective rating as that was what has occurred and we need to work out a solution for the position we’re now in. I agree that the employment relationship is the most important issue to be sorted out here and we’re hopeful that this meeting will be the first step of getting things back on track. This is not an agreement of settlement of any of the matters that are before the Commission.

PN159

THE DEPUTY PRESIDENT: All right. Thank you for that. So that’s essentially as far as you can go today?

PN160

MR BACKWELL: Yes, sir.

PN161

THE DEPUTY PRESIDENT: No, I’m not querying you.

PN162

MR BACKWELL: If the Commission pleases.

PN163

THE DEPUTY PRESIDENT: Sorry, one last point if I could. Sorry to interrupt, but the issue of rights carried over, have you finished with that? Why do rights carry over in this? I mean, which agreement are you relying on? You’re relying on both are you?

PN164

MR BACKWELL: I suppose if might just look at it on a temporal perspective.

PN165

THE DEPUTY PRESIDENT: Yes.

PN166

MR BACKWELL: The issue has occurred - - -

PN167

THE DEPUTY PRESIDENT: During the life of the previous agreement.

PN168

MR BACKWELL: That’s correct. But because that obviously lapses through the new certification we therefore have implemented this 170LW through the new agreement.

PN169

THE DEPUTY PRESIDENT: Right.

PN170

MR BACKWELL: So both, we submit, are relevant to the discussions today.

PN171

THE DEPUTY PRESIDENT: Does the agreement say anything about the previous agreement? It doesn’t say anything, does it? I’m not being critical, I’m just trying to - I can’t see anything.

PN172

MR BACKWELL: My preliminary review is I would agree with you. What we certainly can say - - -

PN173

THE DEPUTY PRESIDENT: I mean, the strange thing, I suppose, is why obligation to pay wages under the previous agreement lapsed? I mean, presumably that couldn’t be the case.

PN174

MR BACKWELL: I suppose there may be an issue of an implied nature there too in that it is about a continued relationship between the CPSU, its members and the employer.

PN175

THE DEPUTY PRESIDENT: Yes.

PN176

MR BACKWELL: And we must have the faith that we can operate in that sort of environment whereby that we can have matters that may have arisen through the temporal period of the previous agreement, but then emerge post that agreement. As I say again, without the benefit of the material before me Commissioner Grainger deals with this in Robertson v DHS.

PN177

THE DEPUTY PRESIDENT: Sure, all right. Thanks.

PN178

MR BACKWELL: If the Commission pleases.

PN179

THE DEPUTY PRESIDENT: Look, is there anything else we can do today usefully?

PN180

MR MILLAR: Your Honour, I’m happy to address the jurisdictional points which largely are dealt with in the outline of submissions, but there are some points perhaps I can take your Honour through and respond to the preliminary observations that have been made today if that will assist the Commission.

PN181

THE DEPUTY PRESIDENT: Yes, I’m just not sure that it would. I’m just trying to think of what we should do. Perhaps would it be appropriate to go off the record and discuss procedures?

PN182

MR MILLAR: Yes, your Honour.

PN183

THE DEPUTY PRESIDENT: Would that be a way?

PN184

MR MILLAR: Yes.

PN185

THE DEPUTY PRESIDENT: Would that be all right? Terrific. We’ll go off the record and discuss procedure.

<OFF THE RECORD

PN186

THE DEPUTY PRESIDENT: We’ve had a discussion about procedure and we’ve agreed on the following. The CPSU will by the close of business 5 May provide a response submission to exhibit VLA1 on the jurisdiction and other issues should they wish to do so. The matter will be set down for hearing on
12 May. The parties have advised me that they intend to endeavour to finish the entire matter on that day. I certainly hope that can be achieved. I suppose there’s not much else we can do today. Perhaps if I could just ask a few more jurisdictional questions if I could of the CPSU. Do you have a difficulty with that?

PN187

So essentially what you’re saying is that those clauses that you advised me of have been breached in this matter and the determination that you’re seeking arises from that breach?

PN188

MR BACKWELL: Yes.

PN189

THE DEPUTY PRESIDENT: I see. Okay, thank you for that.

PN190

MR BACKWELL: Within an arbitral environment.

PN191

THE DEPUTY PRESIDENT: Of course. All right, thank you for that. Well, I don’t think there’s anything more we can do today and we’ll send out a listing. I won’t bother with directions about the second submission. Thank you very much. The Commission pleases.

<ADJOURNED UNTIL FRIDAY 12 MAY 2006 [11.06AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #VLA1 SUBMISSIONS OF VICTORIA LEGAL AID PN82
EXHIBIT #CPSU1 EMAIL FROM KAREN DOUGLAS TO KYLIE SMITH PN148