C2006/2656, Transcript of Proceedings [2006] AIRCTrans 836 (28 June 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 15228-1

SENIOR DEPUTY PRESIDENT HARRISON

C2006/2656

APPEAL BY RAILCORP
s.120 - Appeal to Full Bench
(C2006/2656)

SYDNEY

2.04PM, THURSDAY, 15 JUNE 2006

Hearing continuing

PN1

MR P KITE: I seek leave to appear on behalf of the appellant. I have with me at the bar table my instructing solicitors, MS B HENRY and MS DOHERTY.

PN2

MR A HOWELL: I appear on behalf of the RTBU.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you. Any objection to leave being granted to Mr Kite to appear?

PN4

MR HOWELL: No, your Honour.

PN5

THE SENIOR DEPUTY PRESIDENT: Leave is granted, Mr Kite.

PN6

MR KITE: If your Honour please. Your Honour, this is an application for a stay of decision of his Honour, Senior Deputy President Hamberger in a matter in which his Honour sought to resolve a dispute between the parties arising out of the Rail Corporation New South Wales Rail Infrastructure Corporation v State Rail Authority of New South Wales Enterprise Agreement 2005. We have an affidavit of Mr Greenhill, your Honour, which annexes a copy of the agreement itself. It wasn't tendered below apparently.

PN7

THE SENIOR DEPUTY PRESIDENT: Is there anything else in the affidavit that you will be taking me to, because I have a copy of the agreement with me.

PN8

MR KITE: There is, your Honour, matters going to the importance of the matter so far as RailCorp is concerned.

PN9

THE SENIOR DEPUTY PRESIDENT: Yes, all right.

PN10

MR KITE: If it's convenient, I can hand that up to your Honour now.

PN11

THE SENIOR DEPUTY PRESIDENT: Thanks.

PN12

MR KITE: Mr Greenhill is present, so if there's any objection to him remaining present and I should say Mr Howell has only received a copy of this 10 minutes at most before your Honour came in.

PN13

THE SENIOR DEPUTY PRESIDENT: Mr Howell, any time that you would like a short break to consider it, just let me know, but otherwise I will proceed.

PN14

MR HOWELL: Thank you, your Honour.

PN15

THE SENIOR DEPUTY PRESIDENT: I won't mark it, Mr Kite. It's just before me as a single member for the purposes of the stay.

PN16

MR KITE: Thank you, your Honour.

PN17

THE SENIOR DEPUTY PRESIDENT: Before you go further, there just seems to be one additional C number referred to in respect to which there's an appeal against the decision and order and I am trying to better understand where that one comes from. I know the decision of the Senior Deputy President in tab 2 in your appeal book. It's said to be a decision made in C2006/2179 so I know where that appeal comes from. What is the other one?

PN18

MR KITE: I think the other one was the pre-existing notification of dispute which ultimately led to the section 170LW matter.

PN19

THE SENIOR DEPUTY PRESIDENT: All right. Well, I have that file in court.

PN20

MR KITE: Your Honour will see at tab 3, the transcript is shown as C2006/1960 which was the notification of the dispute and it appears, it's a little unusual in the sense that it appears that his Honour sought to conciliate the matter and did that over three days. The transcript of those matters is at tabs 3, 4 and 5 and then in the course of that conciliation, his Honour received a number of exhibits and the parties and his Honour seem to have moved from this conciliation process almost seamlessly into arbitration, although there was a clear distinction. Your Honour will see at tab 5, particularly at page 56, at the bottom of that page, his Honour says he doesn't want to pre-empt anything, he's recommending the parties have further discussions in accordance with the disputes settlement procedure, but he says what is going to happen if you don't resolve it and he says at the top of page 57:

PN21

I suppose what I am just trying to do is to expedite things so that if you want to take the matter further, I would have thought the next step is really sometimes arbitration.

PN22

And then there's some discussion about that and his Honour says in paragraph 429, about the third line:

PN23

Rather than getting back again and having another hearing to talk about process, we could at least know what the process would be if you don't resolve it, I just wonder whether it needs to be done predominantly in writing is what I was thinking.

PN24

And at 434:

PN25

My preference, I suppose, and it's up to you to have the matter dealt with in terms of written submissions so that you could then put the RTBU - to put their written submissions and responded by RailCorp.

PN26

And that's effectively what happened, your Honour. There is no further transcript.

PN27

THE SENIOR DEPUTY PRESIDENT: No, but I might then just for the purposes of the transcript of this matter note - the transcript you just took me to I see is dated 6 March and I note that on 10 March a notice under a dispute settlement procedure was filed by the union referencing in its terms the section 99 proceedings and that notice became C2006/2179.

PN28

MR KITE: Indeed so.

PN29

THE SENIOR DEPUTY PRESIDENT: I think I follow all that now. Thank you.

PN30

MR KITE: Mr Howell notes that that notice doesn't actually form part of the appeal book. We're happy to supplement that in due course.

PN31

THE SENIOR DEPUTY PRESIDENT: Yes.

PN32

MR KITE: Your Honour will then see at tabs 12 and 13 of the appeal book the submissions made by the parties and, indeed, tab 14, the reply by the RTBU and they have regard to the material that had been before his Honour in the conciliation, so it seems implicit at least that the parties have accepted that the material before his Honour would form part of the arbitration. Now, if I could take your Honour to his Honour's decision just briefly, he sets out the background in the first few paragraphs, that is the matter concerned, Ms Nada, N-a-d-a, who had been declared surplus to requirements when her position was made redundant. She moved to the career transition centre, known as the CTC and ultimately was offered a position, the subject of the current dispute.

PN33

She was offered a position on the basis of a 19-day month, 72-hour fortnight. Shortly after accepting and commencing in that position, it was identified by RailCorp that there had been an error in that offer, that it should have been a 19-day, 76-hour position and that was communicated to Ms Nada and that ultimately became the subject of the dispute, whether it should be a 72 or a 76-hour position. Your Honour will see at paragraph 11, his Honour sets out the disputes settlement procedure and I draw your Honour's attention to two matters, firstly step 6 which is on page 4 of the appeal book.

PN34

That step contemplates that if conciliation fails, the Commission is empowered under section 111AA and section 170LW or any other provision of the Workplace Relations Act considered relevant to arbitrate over the matter provided that arbitration is limited to disputes that involve the interpretation, application or process of implementation of a term or the terms of this agreement and then I draw your Honour's attention to clause 8.6 on the following page which requires that the status quo be observed pending the resolution of the matter before the Commission.

PN35

There was a good deal of discussion about what the status quo was in relation to this matter and in paragraph 14, his Honour deals with that and notes that he make a recommendation which is effectively summarised in the second dot point that Ms Nada should resume employment at the Mortdale maintenance centre provisionally on a 76-hour fortnight until the dispute is resolved. If it's finally determined that she should work a 72-hour week, she should be credited with any additional hours worked, no doubt appropriate adjustments made to salary or whatever.

PN36

Your Honour, they are the terms of the stay and we would seek that be continued and we submit that's consistent with clause 8.6. I should say this to your Honour. I've learned just before coming on, your Honour, that Ms Nada was on sick leave. Mr Panigiris informs us and we've raised with Mr Howell that she has in fact now returned to work under a return to work program and she's working three hours a day, five days a week, so that seems to be the current position. We haven't had an opportunity to check that, but we're prepared to proceed on that basis for the purposes of today's hearing.

PN37

His Honour then identifies the submissions of the parties and notes in particular that two clauses of the agreement are the subject of debate between the parties, clause 27 dealing with hours of work, I will come back to that and clause 14, vesting and translation to new structure. The union's position was essentially that clause 14 governed the matter and that Ms Nada was entitled to be treated as if she were vested and that she should therefore work the same conditions she had been working before, I should say there on the understanding that she had been working 72 hours.

PN38

That is another matter dealt with in Mr Greenhill's affidavit that we've only recently discovered and this is an error on our part below that in fact Ms Nada prior to this offer of employment was working 76 hours per fortnight since
July 1998, so even if she was vested, she would have gone over on the 76 point, but in a sense that's a distraction, your Honour, because his Honour found that clause 14.4 didn't apply in these circumstances, but Ms Nada wasn't vested to RailCorp. She had been placed in the career transition centre and ultimately appointed to another job which she won on priority merit selection, but in the course of the debate, of course, RailCorp was relying particularly on clause 27.1, on page 6, that:

PN39

The ordinary hours of work shall be 76 hours per fortnight.

PN40

And, indeed, relied extensively on the decision of Commissioner Larkin in relation to train planners when the Commissioner considered the operation of clause 27 and the train planners function agreement in terms of the preservation of clauses applying as to individual rights. The Commission found that 76 was the standard in RailCorp, so RailCorp is relying on that clause and particularly the Commissioner's decision in relation to it.

PN41

His Honour drew attention to clause 27.2. That is another form of preservation clause in relation to where it's been the custom and practice to work less than 76 hours per fortnight, such custom or practice shall continue provided that where officers are required to change their work location either temporarily or permanently, they shall be the subject to the hours provided with the new location. That clause has some difficulty about it and it was a matter that the Commissioner considered in the train planners decision where it was argued that this was really a personal right rather than a group right.

PN42

Nevertheless, that was a matter that became a matter of concern to his Honour below. His Honour's consideration commences at page 9. He deals firstly with clause 14.4 and at the end of paragraph 39 concludes that:

PN43

She is not entitled to retain the 72-hour fortnight because of the operation of that clause for the reasons I earlier articulated.

PN44

Then he phrases the next issue this way:

PN45

Should Ms Nada work the 72-hour fortnight, because of clause 27.2 in the multi-employer agreement -

PN46

and pausing there, his Honour had before him some material by way of assertions of the parties that there were people within RailCorp who work 72 hours by reason of vesting, so that when they vested consistent with the operation of clause 14, they took with them their 72 hours, train crews and the like, so that there were a large number of people in RailCorp who had that condition preserved and that was a matter that his Honour took into account.

PN47

There were also assertions about Ms Nada's personal position, that is that she had been a 72-hour employee in her previous position, a point which we failed to correct at the time and that two other clerical officers working with her in this new location also worked 72. That, your Honour, is contained in the submission of the union at tab 12 on page 65 of the appeal book where this is said, quote:

PN48

The fact of the matter is that this position was previous to Ms Nada occupying it a 72-hour fortnight working arrangement, as had the other two clerical officers working with Ms Nada. That being the case, it should follow that clause 27.2 should apply as outlined. They shall be subject to the hours provided at the new location.

PN49

And then there's the assertion about her previous work arrangements. The RailCorp submissions at page 83 in paragraph 49 say this, quote:

PN50

The RTBU is correct to claim that the position in question was previously a 72-hour a fortnight position. The reason the position is no longer a 72-hour position in RailCorp is that it was vacant at the time of the certification of the multi-employer agreement. It is therefore consistent with clause 27.1 which states that the standard hours of work ought be 76 hours per fortnight.

PN51

Without going through the balance of the detail, RailCorp was making the submission that there is a difference between vesting and appointment to new position and that Ms Nada was appointed rather than vested and therefore her position should be a standard one. There's nothing said about the other two people, although it was clearly conceded before his Honour that there were a number of people in RailCorp who work 72 hours by reason of vesting and the preservation rules. Could I take Your Honour then back to his Honour's decision at tab - - -

PN52

THE SENIOR DEPUTY PRESIDENT: Just before you do, I use the term evidence, but I know that the matter proceeded by way of written submissions in which there were certain assertions as to the facts that did not need to be ruled upon, it would see, so whatever the assertions of facts were, the facts were I assume accepted.

PN53

MR KITE: They seem to have been accepted, except where they've been put in the particular context.

PN54

THE SENIOR DEPUTY PRESIDENT: So what was before his Honour in relation to other employees in the Mortdale maintenance centre other than the ones he does refer to? How many employees are we talking about there?

PN55

MR KITE: In Mortdale maintenance centre?

PN56

THE SENIOR DEPUTY PRESIDENT: Well - - -

PN57

MR KITE: We don't know the answer to that, your Honour, and it wasn't addressed below. I should say, your Honour, that ultimately we would be making an application in relation to adducing additional evidence on appeal in relation to these sorts of matters, so that it becomes clear.

PN58

THE SENIOR DEPUTY PRESIDENT: Just bear with me a moment, would you?

PN59

MR KITE: If your Honour please.

PN60

THE SENIOR DEPUTY PRESIDENT: Yes, continue.

PN61

MR KITE: And that's really the difficulty, your Honour, that we will come to. As your Honour will see in his Honour's decision at page 10 of tab 2, paragraph 43, his Honour said:

PN62

In Ms Nada's case, RailCorp did not contest the RTBU assertion that the previous incumbent of the position ...(reads)... on a 72-hour week because of the operation of clause 27.2 of the multi-employer agreement.

PN63

In our respectful submission, his Honour fell into error there in concluding that because a couple of people that he was told worked 72 hours, that clause 27.2 in relation to custom and practice is made out, particularly where his Honour has a background of personal preservation in moving from the old authorities into RailCorp in certain circumstances. What happens to two people doesn't make it custom and practice, whatever that term means in the context of clause 27.2 and ultimately it will be a matter, if the Commission grants leave to appeal, to determine on appeal the scope of that clause 27.2.

PN64

THE SENIOR DEPUTY PRESIDENT: His Honour has made that finding on the basis that 27.2 applies to all work locations and not to an individual.

PN65

MR KITE: Yes.

PN66

THE SENIOR DEPUTY PRESIDENT: And presumably the work location, he said there's two people there at that location, plus the predecessor on 72 hours. Is that how it goes?

PN67

MR KITE: Yes.

PN68

THE SENIOR DEPUTY PRESIDENT: I understand.

PN69

MR KITE: And his Honour seems to have taken that to be evidence of the custom and practice for that location.

PN70

THE SENIOR DEPUTY PRESIDENT: Evidence of the custom and practice, yes. 27.2 is a difficult clause, isn't it?

PN71

MR KITE: It is a very difficult clause, your Honour.

PN72

THE SENIOR DEPUTY PRESIDENT: Yes.

PN73

MR KITE: It has some history.

PN74

THE SENIOR DEPUTY PRESIDENT: Yes. The first sentence, one might think could attach to the person and the second to the location and then you have to make sense of it.

PN75

MR KITE: And it has to be seen in the context of 27.1 and it also has to be seen in the context of, as your Honour recalls, a number of preserved awards and agreements, that like the train planners functional, became part of the multi-employer agreement.

PN76

THE SENIOR DEPUTY PRESIDENT: Yes.

PN77

MR KITE: With the greatest respect to his Honour and those who appeared below, his Honour wasn't assisted with evidence and/or debate about the construction of all of those terms and it leads, as your Honour will see when I take your Honour to Mr Greenhill's affidavit, to a proposition of difficulty. Now, arguably on one view, this might be said to deal with one person, but it appears as your Honour will see from Mr Greenhill's affidavit, that the union takes a broader view than that and is seeking to apply it more generally in the organisation.

PN78

THE SENIOR DEPUTY PRESIDENT: Just take the contract point and for the purposes of this question ignore the impact of the enterprise bargaining agreement provisions on the contract. I take it it was not in issue that the contract when the error was discovered could have been subject to reasonable notice and - - -

PN79

MR KITE: It certainly wasn't debated below, your Honour.

PN80

THE SENIOR DEPUTY PRESIDENT: It wasn't debated?

PN81

MR KITE: No.

PN82

THE SENIOR DEPUTY PRESIDENT: All right.

PN83

MR KITE: Those impacts and, indeed, with due respect to his Honour, nobody seems to have asked his Honour to determine the contract point.

PN84

THE SENIOR DEPUTY PRESIDENT: No.

PN85

MR KITE: There is implicit propositions about fairness and status quo and submissions about the position by Mr Panigiris on behalf of the RTBU, but it doesn't appear that Mr Panigiris asked his Honour to determine whether as a matter of contract Ms Nada was entitled to continue in this position, whatever the operation of the agreement.

PN86

THE SENIOR DEPUTY PRESIDENT: He addresses the issue of mistake, but that wasn't what I was raising. I was raising the entitlement to vary a contract on notice.

PN87

MR KITE: Yes, which is what RailCorp - assuming his Honour is right as to mistake and we don't necessarily concede that, but assuming his Honour is right, it would still be open to move to bring that to an end in one form or another and offer alternative employment under a new contract. There would be other considerations applying in all of that, but as a matter of law, that's open, but briefly as to that, firstly we'd say either in dealing with the contract point, his Honour is exercising judicial power or alternatively - and/or alternatively, it's not a matter which arises under the dispute settlement clause, step 6, that is it's not a matter which involves the interpretation, application or process of implementation of a term of the agreement.

PN88

THE SENIOR DEPUTY PRESIDENT: That's all of the discussion that occurs under the question he poses for himself, what are the implications of Ms Nada's original offer of employment. Is that what you're addressing?

PN89

MR KITE: Yes, your Honour.

PN90

THE SENIOR DEPUTY PRESIDENT: I see.

PN91

MR KITE: That seems to be where his Honour concludes the contract point.

PN92

THE SENIOR DEPUTY PRESIDENT: I understand.

PN93

MR KITE: And I should say to your Honour that in both paragraph 43 and paragraph 48, his Honour uses the language Ms Nada should be employed on a 72-hour basis. He doesn't go on to say I order accordingly and we're not aware of any additional form of order, but it's implicit we submit in his Honour's language and decision that that's the intention of this decision.

PN94

THE SENIOR DEPUTY PRESIDENT: Is the competence of the appeal put in issue?

PN95

MR HOWELL: It is, your Honour, and that is one of the substantial issues we'll be arguing.

PN96

THE SENIOR DEPUTY PRESIDENT: All right. Mr Kite, that submission about how we should construe the manner in which the - I'll call it just the ruling, what that is and where one finds a home for it in section 120.

PN97

MR KITE: Yes, our primary submission actually is that it's section 45 because the transitional provisions seem to require that it be dealt with under the old Act.

PN98

THE SENIOR DEPUTY PRESIDENT: I thought it was under 120 this appeal was - - -

PN99

MR KITE: We refer to section 120 in the notice of appeal, but we've also referred to section 45.

PN100

THE SENIOR DEPUTY PRESIDENT: 45(1)(b), yes.

PN101

MR KITE: Yes, and, your Honour, in the regulations, Workplace Relations Regulations 2006, it would seem that chapter 7, regulation 4.3(ii) is relevant. That provides that:

PN102

Despite the amendment of the pre-reform Act by the Work Choices Act that subject to Regulation 4.1(iii), an appeal to a Full Bench in relation to the matter mentioned in paragraph 45(1)(b) of the pre-reform Act made and instituted within the period mentioned in 4.1(iii) needs to be determined under the pre-reform Act as if the Act - - -

PN103

THE SENIOR DEPUTY PRESIDENT: I am so sorry, where were you?

PN104

MR KITE: Chapter 7.

PN105

THE SENIOR DEPUTY PRESIDENT: Yes, I've got the chapter, it's just the - - -

PN106

MR KITE: Regulation 4.3. This is another method of setting out regulations designed to confuse practitioners, I think, 4.3(ii), your Honour, and in particular paragraph (b).

PN107

THE SENIOR DEPUTY PRESIDENT: But this appeal was instituted after - - -

PN108

MR KITE: The appeal was, but the matter began, as your Honour will see - - -

PN109

THE SENIOR DEPUTY PRESIDENT: In relation to a matter, yes.

PN110

MR KITE: Which began before - - -

PN111

THE SENIOR DEPUTY PRESIDENT: Yes, and the institution is then related to the matter, yes, I understand.

PN112

MR KITE: That seems to be - it really requires us to, as I said, this matter under the pre-reform Act which is section 170LW - we perhaps should have also referred to 45(1)(g) in relation to jurisdiction, given the point we make about the contract determination. Your Honour, it's our respectful submission that it's certainly arguable that his Honour fell into error in concluding that on the basis of the material before him there was a custom and practice of the kind required by clause 27.2 and, indeed, given the material we now know to be the correct position as to Ms Nada's former employment terms, that consideration is based upon a factual premise which was incorrect, not to the knowledge of his Honour or able to be known to his Honour because of the position taken by the parties below, but subject to the Commission giving leave, we would seek to adduce evidence of that on the appeal and, indeed, evidence going to the custom and practice, if any, at Mortdale and clearly, your Honour, we submit that the contract determination is arguably beyond the Commission's jurisdiction either from the judicial power point or because it's not a matter authorised under section 170LW and clause 8.3, step 6.

PN113

THE SENIOR DEPUTY PRESIDENT: What was that point?

PN114

MR KITE: That is the part of the dispute settlement procedure that gives the Commission power to arbitrate limited to disputes involving the interpretation, application or process of implementation of a term of the agreement. As to leave, your Honour, we rely on the affidavit of Mr Greenhill.

PN115

THE SENIOR DEPUTY PRESIDENT: Do you want me to pause, have a short break, to read this?

PN116

MR KITE: It's probably easiest that your Honour read it. It's not as extensive as it looks, because it's got a copy of the agreement attached, the multi-employer agreement.

PN117

THE SENIOR DEPUTY PRESIDENT: We still might have a short break.

PN118

MR KITE: Yes, and Mr Howell has some written submissions.

PN119

MR HOWELL: It might be useful if your Honour is going to read some material, that your Honour have all the relevant materials.

PN120

THE SENIOR DEPUTY PRESIDENT: Thanks. I might need a quarter of an hour, so you can safely exit the area for at least that time, but if you're not going to be in the vicinity of court, let my associate know, if you have a mobile phone number or something, but you can confidently assume we wouldn't be back in court again for at least quarter of an hour.

PN121

MR KITE: If your Honour please.

<SHORT ADJOURNMENT [2.39PM]
<RESUMED [2.57PM]

PN122

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN123

MR KITE: Are there any matters with which I can assist your Honour on the affidavit?

PN124

THE SENIOR DEPUTY PRESIDENT: No.

PN125

MR KITE: Your Honour, we would submit there is an arguable case for an appeal on both points, that is on the proposition of construction of custom and practice of clause 27.2 and the contract determination. We submit the appropriate approach to his Honour's decision is to regard it as an order in relation to a certified agreement pursuant to section 170LW and therefore appealable under section 45 of the pre-reform Act, particularly paragraphs 1(b) and 1(g). As to the balance of convenience, your Honour has a good deal of material in the affidavit of Mr Greenhill as to the position from RailCorp's point of view.

PN126

Secondly, it's clear that Ms Nada is presently on leave and working three hours a day in any event, as we understand the position, we accept it to be and that this would cause no difference other than in record keeping at present. Thirdly, it's clear that the agreement requires in the dispute settlement provision the maintenance of the status quo pending the examination of the matter by the Commission and we would submit that includes the appeal process. For all of those reasons, your Honour, we would submit that the balance of convenience as to the stay such that RailCorp have maintained the records, of course, and at the end of the day we would adjust the terms and conditions of Ms Rada's appointment appropriately, rather than her having to consider repaying money to RailCorp. If your Honour please, unless there's anything further.

PN127

THE SENIOR DEPUTY PRESIDENT: Mr Howell.

PN128

MR HOWELL: Thank you, your Honour. Your Honour, I have reduced most of what we want to say to writing, so I will endeavour not to repeat it.

PN129

THE SENIOR DEPUTY PRESIDENT: And thanks. That was useful to have read it, being able to read it in advance. I might indicate that this fascinating area about what is or isn't appellable in relation to a decision of a ruling that arises out of section 170LW has given rise over a period of years to one round of cases and some of the later benches, perhaps first distinguishing them, then just finding that they were wrongly decided and your reliance on the Australian Tax Office case might fall into one of those areas. I can't say this with any confidence, but it may well be a more recent Full Bench of I think it's Safeway might have distanced itself a bit from the construction placed by the ATO on I think it's saying that there was no award or order that could be the basis for a competent appeal and I think Safeway is probably going a different way and that's a more recent Full Bench decision. Now, that doesn't mean, of course - we can't pick and choose, but Safeway seems to be the approach taken now and I suppose putting it inelegantly, there's more rulings that are now capable of being reviewed on appeal than maybe the earlier round of cases has suggested, but, again, another interesting matter that might be argued before the Full Bench in this matter.

PN130

MR HOWELL: May well be, your Honour. Thank you for that and I apologise for not having referred to Safeway. I came into the matter last night, so I apologise if my researches are not quite as comprehensive as they might otherwise have been.

PN131

THE SENIOR DEPUTY PRESIDENT: No problem at all.

PN132

MR HOWELL: Your Honour, the principles for dealing with a stay are well settled. They're set out in paragraph 5 of the written submissions and I understand my friend doesn't cavil with them. The issues that are to be addressed, leaving aside issues of onus, are balance of convenience and reasonable prospects of success on both the application for leave and the substantive appeal. As to balance of convenience, I don't think in my respectful submission the balance of convenience is going to be determined either way here.

PN133

It's fairly evenly weighted we would say. Ms Nada is currently as my friend correctly points out at least on my instructions, currently not working a full complement of hours. She's on a return to work program. That would be one presumes for at least the immediate future the situation. One could say that really doesn't assist either side when it comes to the balance of convenience. Insofar as the balance of convenience is concerned, once Ms Nada returns to a full complement of hours, we would say there is nothing that would be of particular concern to the Commission.

PN134

The real issue is whether or not my client is entitled to four hours' overtime for the additional period or whether the respondent is merely paying the ordinary wage for less than the full complement of hours and it's fairly evenly balanced and we would say to the extent that there is any issue on the balance of convenience, it would weigh in favour of the respondent. The prejudice to my client in not being able to avail herself of the additional four hours per fortnight overtime rate would be greater prejudice relatively speaking than would be suffered by the respondent.

PN135

THE SENIOR DEPUTY PRESIDENT: Is there some reason why the parties would be reluctant for me to know what the manner was that you resolved the status quo after Senior Deputy President Hamberger's second recommendation which I think was a 76-hour recommendation but clearly with the necessity to be in a position to unscramble the egg should that need to be done?

PN136

MR HOWELL: Indeed, your Honour. As I understand it, the situation is as reflected in the relevant paragraph of his Honour's decision which picks up the recommendation that she would continue to perform 36 hours accruing. They would then be brought to account.

PN137

THE SENIOR DEPUTY PRESIDENT: I understand. Yes. I should indicate to you that might just tip the balance. I can see there's very good argument both sides, but might tip the balance in their favour.

PN138

MR HOWELL: Your Honour, indeed, it may, but we would say the more significant area for - more significant issue would be whether or not there is an arguable case.

PN139

THE SENIOR DEPUTY PRESIDENT: I understand.

PN140

MR HOWELL: On both the issue of leave and the substantive appeal. I haven't addressed the issue of leave in the written submissions. I apologise for that, but very briefly, we see the decision of his Honour as being applicable to the particular circumstances of Ms Nada. In those circumstances, it does not in our respectful submission have the broader ramifications which my friend's client seeks to place on it. It's not a matter which - because it merely deals with one individual in the context of her particular employment, it's not a matter which is of such significance that in the public interest leave would be granted. As to the substantive arguable case on the appeal, if your Honour's recollection is correct and Safeway causes the ATO decision to fall in a heap, then I think much of what I wanted to say - - -

PN141

THE SENIOR DEPUTY PRESIDENT: Well, I feel less and less confident about things these days than I was years ago, but I think Safeway is making - well, at least it's arguable, it has to be arguable that Safeway would allow a review of this type of determination. I think I'm safe saying that, Mr Howell.

PN142

MR HOWELL: Your Honour, if that's correct, then I think the only things that we could say about the matter are that the fact that new material has come into the hands of the respondent is not something which would weigh greatly in your Honour's consideration. It's certainly not a matter which would weigh for the appeal bench. We would be resisting the new material coming forward on the appeal, assuming the appeal were competent.

PN143

This is material on any view which was available to the respondent below - sorry, to the appellant below. This is a matter which was dealt with by way of private arbitration. It was well within the other side's hands to object to the procedure which was adopted below. If there was going to be any issue about evidence, it wasn't. Indeed, his Honour in our respectful submission properly characterises the situation in his decision at I think it's paragraph 43 from memory. Yes, paragraph 43 when he says that:

PN144

RailCorp simply didn't contest the RTBUs assertion that the previous incumbent position worked a 72-hour fortnight.

PN145

Indeed, that was conceded and more importantly we would say as did the other two clerical officers working with her. In the context of the language of clause 27.2, that finding, that concession on one view is the end of it. There was no evidence that there was anyone else working in the relevant section. Three people are referred to, two are working 72 hours. Regardless of the basis, those are the hours using the language of the instrument, that were prevailing at the time. One could well say that would be the end of it.

PN146

It's simply in our respectful submission not good enough to come on appeal and seek to correct errors that could have been remedied below had the case been with respect properly run. If your Honour could bear with me for one moment. Your Honour, if I am incorrect on - if I am misplaced on my reliance upon the ATO decision and on the other Full Bench decisions which are referred to in the written submissions as having picked it up, then I think at least the matters referred to in paragraph 11.1 would fall away.

PN147

If my reliance upon the ATO decision is not misplaced, then we would see the appeal as by and large incompetent. Paragraphs 2 through to 8 would immediately fall away. The only issue then becomes whether or not there is a jurisdictional issue properly so considered. That would have to be considered under section 45(1)(g). We say the issues which are the subject of complaint in paragraph 1 of the notice to appeal are not issues of a jurisdictional fact. They don't go to a jurisdictional fact in our respectful submission.

PN148

There are only in our respectful submission two jurisdictional facts that arise in any private arbitration. One is whether or not the matter the subject of dispute properly arises as a dispute on the operation of the agreement. Secondly, if orders are to be made, whether those orders are properly orders made in settlement of a dispute over the application of the relevant agreement. There is no orders in our respectful submission in this case and there is no challenge to a jurisdictional fact of a kind that would cause the entire dispute to fall away.

PN149

There is no jurisdictional challenge that properly falls under section 45(1)(g). Now, assuming I am wrong on that, then the alternative position is dealt with under the heading alternative commencing at paragraph 3. We were half way through the submissions and I saw the pages weren't numbered. I should say the issue of whether or not in a private arbitration there is a judicial determination is now we would say well settled. The private arbitration case dealt with, there's any number of subsequent Full Benches which deal with it. In short, it was not an exercise of judicial power. It was the exercise of rights afforded as a consequence of the private arbitration. It's either properly within the powers given on that private arbitration or not.

PN150

Coming then to whether or not this is properly - whether or not his Honour's decision was properly a matter arising under the agreement, your Honour, perhaps to deal with this properly, it is perhaps best if I take you to the agreement itself and I think the most convenient way to do that is to use the affidavit of Mr Greenhill.

PN151

THE SENIOR DEPUTY PRESIDENT: Yes.

PN152

MR HOWELL: Actually, your Honour, it might be more convenient to use the decision itself. The relevant section is fully set out. Your Honour, clause 1 of the agreement identifies the purpose of the dispute settlement procedure being to provide an equitable and mutually binding process for dealing with grievances, claims, disputes or problems arising between the parties to the agreement. Clause 8.1(b) sets out the objectives. There's no need for me to read those to your Honour. They're set out in the written submissions.

PN153

THE SENIOR DEPUTY PRESIDENT: No.

PN154

MR HOWELL: Clause 8.2 sets out a six step procedure for dealing with the dispute. Importantly, we point out step one which refers to:

PN155

Any grievance, dispute or claim which is likely to cause conflict.

PN156

That is the matter which is then referred to in steps two, three, four, five and six, that is any grievance, dispute or claim which is likely to cause conflict.

PN157

One then comes to step six and the power given to arbitrate, that the power given to arbitrate is over the matter. Again, that is, we refer to step one:

PN158

Provided that arbitration is limited to disputes that involve the interpretation, application or process of implementation for the term of this agreement.

PN159

In terms, the dispute resolution procedure contemplates arbitration about the operation of this instrument in a practical way, not merely if I can say in an interpretive way. It's the application of the agreement which we say was the subject of the dispute before his Honour. When one comes to the application of the dispute, in the context of Ms Nada's circumstances, it would be a nonsense with respect to say that his Honour could consider the application of this agreement without considering the offer of employment, the offer of employment and the acceptance of that employment which is on terms more beneficial than that contained in the agreement.

PN160

THE SENIOR DEPUTY PRESIDENT: I understand that. There still remains the question as to whether the discussion of the contract point reflects error, but not for that reason, for a different reason, but I do understand that. I must say, at the moment I can say again it's at least arguable that the dispute was one about the application of the terms of the agreement to the facts as found in relation to her circumstances, but I am not entirely sure that is what the Senior Deputy President limited himself to when he discussed the topic, the question he posed, what are the implications of her original offer of employment?

PN161

MR HOWELL: Indeed. We embrace that, your Honour. The first matter which his Honour determines is in clause 43, sorry, it's paragraph 43 of his decision dealing with clause 27.2 of the agreement, what were the hours of work prevailing at the relevant workplace? There's no evidence otherwise. Indeed, the other side conceded the point. Properly or otherwise, having regard to the actual circumstances, that is the material upon which his Honour made the determination. One would say the matter rises and falls there.

PN162

His Honour then goes on to consider, if I can call it this way, the contractual issues and, your Honour, I don't think I can add anything more to that other than to say that if paragraphs - I think it's 44 through to 47 stood alone and there was no other consideration, then maybe the appeal would have in our respectful submission more legs, but his Honour determined the point in paragraph 43.

PN163

The considerations thereafter merely go to an application of this agreement in the circumstances prevailing for Ms Nada. They don't purport to be any judicial examination. They are merely a consideration of the application of this instrument in the circumstances prevailing to Ms Nada, Ms Nada being the crux if I could put it that way of the issue in dispute, Ms Nada's circumstances being the crux of the issue in dispute. Unless there's anything further, your Honour, those are my submissions.

PN164

THE SENIOR DEPUTY PRESIDENT: No. Thank you. Mr Kite.

PN165

MR KITE: Your Honour, two points, I suppose. The first is that the implications of the decision for the organisation are such that if the Commission were to comment about or determine the proper application of clause 27.2 and its operation in the context of the dispute settlement clause, it ought do so on the basis of substantial and proper evidence because the clause has a lot of work to do in the organisation, particularly in a time of transition and the best way to do that is to ensure that the Commission has the best evidence and appropriate evidence to deal with the matter and, of course, it would be ultimately a matter for the Full Bench whether to receive that evidence on the appeal.

PN166

Secondly, as to the contract point, in our respectful submission, if one framed the question is Ms Nada entitled to work a 72-hour week pursuant to a term of the agreement, one may have a look at what her terms and conditions of employment were and that may lead as it did for his Honour I think in paragraph 43 to come to a view about the operation of clause 27.2 in the circumstances. If his Honour stopped there, there would be no contractual issue, but the consideration of the contractual issue doesn't look to the terms of the agreement at all.

PN167

His Honour simply looks at the point of contract and concludes on that basis, albeit in addition to the earlier basis that as a matter of contract Ms Nada was entitled to 72 hours. It's that proposition which we say goes beyond the permitted scope of the arbitration. It's not to say that incidentally in an arbitration one might inquire into what a contractual position is for the purpose of applying one of the terms of the agreement. That part of his Honour's decision doesn't do that and hence is beyond jurisdiction, the jurisdictional fact that it's not within the terms of step 6. Unless there's anything else, those are the submissions in reply, your Honour. I should say we agree with Mr Howell that the interim position was as per the recommendation of his Honour contained in the agreement.

PN168

THE SENIOR DEPUTY PRESIDENT: I am persuaded that it's appropriate that a stay order is issued in relation to this matter. I think it's arguable that the appeal grounds raise matters that are of such importance that in the public interest leave may be warranted. I am persuaded there's an arguable case as to error in relation to the manner in which his Honour construed clause 27.2 of the enterprise bargain agreement and the manner in which he dealt with the contract of employment issue as being arguably outside the role bestowed upon the Commission in the dispute settlement provision of the enterprise bargain agreement.

PN169

The balance of convenience I think in the circumstances of this matter and particularly bearing in mind the manner in which the parties have at least on an interim basis adopted the second recommendation made by the Senior Deputy President, the balance of convenience weighs in favour of the stay order being granted. I think, though, that the stay will need to in that respect address certain undertakings that should be forthcoming from RailCorp, even if they're understood to be in existence and being observed. At the moment I think, though, they should be reflected in a stay order, but I don't know that I need try and come up with the terms myself, do I? Are they a matter that the two of you might be able to confer about?

PN170

MR KITE: I am sure we can, your Honour, and ensure that the intent is reflected in the stay order we would file short minutes of such an order.

PN171

THE SENIOR DEPUTY PRESIDENT: Yes. Now, obviously the stay applies until the matter is disposed of by a Full Bench and that's a matter now I wish to turn to. The Full Bench has been constituted to hear this appeal in Sydney on 24 July, Mr Kite.

PN172

MR KITE: If your Honour please.

PN173

THE SENIOR DEPUTY PRESIDENT: 10 am or some different start?

PN174

MR KITE: 10 am, yes.

PN175

MR HOWELL: Thank you, your Honour.

PN176

THE SENIOR DEPUTY PRESIDENT: All right. Now, working backwards, it seems from some submissions you made, Mr Kite, that you have foreshadowed some amendments maybe to the grounds of appeal and some advance notice to Mr Howell and the members of the Full Bench of an application to lead fresh evidence.

PN177

MR KITE: Yes.

PN178

THE SENIOR DEPUTY PRESIDENT: Now, the sooner we all know what the grounds are and what fresh evidence you'll be seeking to lead, a matter of course about which it should not be assumed I've made any ruling at all - - -

PN179

MR KITE: Indeed.

PN180

THE SENIOR DEPUTY PRESIDENT: But we really need to know that fairly soon. I might ask you this, Mr Howell. Do you want me to put a time limit on them in relation to that or you're pretty confident you can hound them into giving it to you and any grounds of appeal that might be amended or new grounds added and the fresh evidence point?

PN181

MR HOWELL: Your Honour, from more an abundance of caution, a timetable might be appropriate. If nothing else, it crystallises people's minds in a relatively short time frame.

PN182

THE SENIOR DEPUTY PRESIDENT: Very true. Let's go off transcript and have a talk about that.

<OFF THE RECORD

PN183

THE SENIOR DEPUTY PRESIDENT: The appeal in this matter will be listed for hearing in Sydney on Monday, 24 July at 10 am. I will now adjourn until that time and give the parties liberty to apply on short notice should any matters need to be addressed that we have not already done so in a conference. The Commission now adjourns.

<ADJOURNED UNTIL MONDAY 24 JULY 2006 [3.29PM]