C2006/2557, Transcript of Proceedings [2006] AIRCTrans 879 (10 July 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 15307-1

JUSTICE GIUDICE, PRESIDENT
DEPUTY PRESIDENT IVES
COMMISSIONER HARRISON

C2006/2557

APPEAL BY AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION-FOOD AND CONFECTIONERY DIVISION SOUTH AUSTRALIA REGION
s.120 - Appeal to Full Bench
(C2006/2557)

SYDNEY

10.08AM, TUESDAY, 27 JUNE 2006

Reserved for Decision

PN1

MR J PEARCE: I seek leave to appear for the appellant.

PN2

MR G HATCHER: I seek leave to appear with my learned friend, MR P THEW, for the respondent and in the helpful way we need, to me, to obtain these days we'd like to assist the Commission with an address on whether leave ought to be granted in this case as it is a new matter.

PN3

JUSTICE GIUDICE: Yes. Well, go ahead.

PN4

MR HATCHER: That is leave to appeal, not leave to appear in this case.

PN5

JUSTICE GIUDICE: I see, leave to appeal. Well, you want to make a submission that leave ought not be granted, do you?

PN6

MR HATCHER: Yes.

PN7

JUSTICE GIUDICE: Yes. What do you say about that, Mr Pearce?

PN8

MR PEARCE: Your Honour, we would take the view that the matter should be rolled up and dealt with together. I prepared an outline. I apologise for the lateness of the outline, but I was only briefed in this matter late on Thursday afternoon and in the time available I was hoping to have it available to your Honour yesterday. And I realise it's an extensive outline. It was only finalised this morning, certainly in terms of getting the printer going. Perhaps your Honour will probably note that it's still hot from the photocopier. Can I say that the outline consists of in parts A, B, C, D and E the usual sort of matters that are dealt with in an outline, namely the authorities in relation to leave to appeal.

PN9

JUSTICE GIUDICE: It's far too long a document to be called an outline,
Mr Pearce.

PN10

MR PEARCE: Sorry, your Honour?

PN11

JUSTICE GIUDICE: It's far too long a document to be called an outline.

PN12

MR PEARCE: Well, perhaps then I'll read a summary of submissions.

PN13

JUSTICE GIUDICE: Well, it must be your submissions, surely?

PN14

MR PEARCE: Not quite, your Honour.

PN15

JUSTICE GIUDICE: It can't be any more.

PN16

MR PEARCE: Can I say this to your Honour.

PN17

JUSTICE GIUDICE: We're only going to sit for a certain amount of time.

PN18

MR PEARCE: What I was going to invite the Commission to do, and it's obvious it's entirely a matter for you, was to adjourn and read the outline because once the outline's read I really only have about half an hour to say.

PN19

JUSTICE GIUDICE: I see.

PN20

MR PEARCE: And that would greatly - I appreciate that I should have made the outline available yesterday.

PN21

JUSTICE GIUDICE: Yes.

PN22

MR PEARCE: So your Honour was correct when your Honour said this morning the nature of the submission.

PN23

JUSTICE GIUDICE: Yes, all right. Well look, I think we'll just hear from
Mr Hatcher for a moment as to why he ought to be permitted to make a threshold submission that leave not be granted and change the normal order of things.
Mr Hatcher?

PN24

MR HATCHER: Yes, thanks to the Commission. The appeal was instituted by notice. The notice needs to be filed within a particular time and in our respectful submission confines the case that might be brought on it there. When one has regard to the grounds enunciated in the notice they are either directly contrary to submissions advanced in the proceedings below or, with all due respect to the author of the document, and I take it from what my learned friend said he ought understand that is what is intended, to him in his submission.

PN25

JUSTICE GIUDICE: Now, at the moment you're referring to the notice?

PN26

MR HATCHER: The notice of appeal.

PN27

JUSTICE GIUDICE: Which was filed?

PN28

MR HATCHER: Unfortunately the date stamp has been obliterated in the copy I have, your Honour.

PN29

JUSTICE GIUDICE: 10 May.

PN30

MR HATCHER: Thank you, your Honour.

PN31

JUSTICE GIUDICE: Yes.

PN32

MR HATCHER: Now, if it please the Commission, when one has regard to these grounds, and I'd like to go very quickly through the grounds and support the submission we make, an appeal is untenable. The first two grounds assert that the authorities of the Commission dealing with consent awards somehow have application to an application to vary for the purposes of section 554. The best way of dealing with those grounds one and two is to simply point to the juris prudence of the Commission in relation to dealing with ambiguity and variation. And in most of the authorities that I've listed one will see the Commission was dealing with certified agreements.

PN33

That is the Act itself then and now contemplated that the Commission would proceed to remove an ambiguity or uncertainty from a certified agreement, let alone a consent award. And to suggest that somehow principles about variation of consent awards in circumstances other than variation for removing ambiguity or uncertainty could have some relationship to this case seems curious at best and if it was to be advanced, wasn't advanced in the proceedings below. The next points dealt with in grounds three and four suggest that the Senior Deputy President erred in giving consideration to extraneous material in identifying an uncertainty in the ASC award.

PN34

Now, let us concede immediately that if he relied on extraneous material to find an uncertainty he would have erred. In fact he was asked to do that by the advocate appearing in the proceedings below. If one goes to volume 2 of the appeal book behind the tab 14 February 2006 at paragraph number 1417, it's towards the end of that transcript.

PN35

COMMISSIONER HARRISON: Sorry, Mr Hatcher, what was that?

PN36

MR HATCHER: Paragraph number 1417, your Honour.

PN37

COMMISSIONER HARRISON: Thank you.

PN38

MR HATCHER: Yes. The Commission sees Mr Penning here addressing. He says:

PN39

And we would submit that they are general statements of principal that the Commission would probably have regard to in this matter.

PN40

In short he is adopting what had been put by our client in the proceedings as to the authorities to be pressed on or the authorities regulating the Commission's procedures on resolving ambiguity or uncertainty. He continues:

PN41

So the union's fundamental submission is that there is no ambiguity or uncertainty o the face of the clause and on the face of the award. In considering that matter we'd ask the Commission to have regard to two broad areas, perhaps under two broad topic headings. The first is the history of the provision.

PN42

So there's a specific invitation to the Commission to have regard to extraneous material in determining whether there is ambiguity or uncertainty. Now, his Honour had the courtesy, no doubt, to that submission in his decision of 5 April, which is behind tab 2 of volume 1 of the appeal book, deals with that submission commencing from paragraph 12 on page six of the appeal book under the heading The History of the Award and concludes at page eight of the appeal book, paragraph 24 to 25. Mr Penning argued that the history of this unchanged clause told against ambiguity.

PN43

To an extent it does, but the same argument could be made about clause 5.1 which has gone unamended since the 1991 award variations to recognise ADSTE's amalgamation into the AMWU. The clause has been incorrect since then given the operation of the ASC production award. So essentially what his Honour said is well, I'm asked to rely on extraneous material to satisfy myself that there is no ambiguity or uncertainty and to the extent I'm to rely on that, that perhaps there's a little bit in that direction that isn't compelling. So to the extent there's reliance on the extraneous material it's the express urging of the appellant in the proceedings below.

PN44

And to the extent that the Commission does do it in the proceedings below it's only an error in their favour, not a basis upon which we would say constitutes expellable error which would grant a leave of the Commission to appeal. One then turns to grounds five and six and it is there complaining that the Senior Deputy President erred in adopting the test for ambiguity or uncertainty as being the word of the clause is susceptible to more than one meaning. Now, those words, that expression, finds its origins in a judgment of his Honour Munro J which is cited in the Tenix case and in the Colonial Mutual case to which his Honour was referred in the proceedings below. That exact phrase, his Honour was referred to those authorities and properly so by the appellant.

PN45

To then advance an appeal, or to seek leave to appeal, on the basis that his Honour erred in following full bench authority that he was urged to follow by the appellant in the proceedings below, in our respectful submission, would not warrant a grant of leave to appeal. Ground six then, the Senior Deputy President erred in determining that as a result of clause 5.2 of the ASC award the adoption of terms for many other award into the ASC award would need to be very clear, thereby fallaciously imposing an artificially elevated burden on the AMWU to sustain it's construction of the ASC award.

PN46

In our respectful submission it just flies in the face of High Court authority, authority of this Commission and every authority dealing with interpretation. One needs to construe a clause against the document as a whole. That's all that is done. And no complaint is made in the proceedings below, or not submission is put in the proceedings below that the clause should be looked at in isolation, nor should it have been put. In paragraph 7 of the ground it's said:

PN47

Insofar as the Senior Deputy President relied upon the intention of the parties he erred in failing to have regard to the intention of the parties after the intervention of Keogh DP on 18 August 1989 prior to the predecessor to the award being approved by the Commission.

PN48

Now, it's important, in our respectful submission, to note that we've now moved from the determination of an ambiguity and uncertainty and to the exercise of discretion as to what would be done about an ascertained ambiguity or uncertainty. When one takes that step one needs appreciate that his Honour had determined that the union's interpretation simply wasn't available. It wasn't a case of his Honour saying the union contend A, the employer contends B, there's uncertainty arising from that and therefore I will see which of those two provisions reflect the mutual intention as reflected objectively at the time the clause was entered, the appropriate test and the test he expressly followed. What his Honour said is:

PN49

The union's interpretation is, on my view of it, untenable, but I nonetheless find that there is some ambiguity or uncertainty because the clause may be read as simply a statement of intention rather than conferring an express award entitlement. If it's a statement of intention it's not an allowable matter and accordingly I prefer the version that says it conferred an entitlement and I will vary the award to give effect to that.

PN50

In ground eight it's urged that the Senior Deputy President erred in failing to apply the presumption of regularity and, in particular, that the Commission intended that the ASC award would be lawful and consistent with national wage fixing principles. Well, presumption of regularity wasn't argued below, but for the reasons I just advanced his Honour expressly applied that presumption to arrive at the particular result that he gave effect to. Paragraph 9 deals with the question whether the clause 9 of the ASC award was a preserved award term.

PN51

Now, in our respectful submission, that wouldn't warrant a grant of leave because
whether it was about a preserved award term and therefore a preserved award term, it could nonetheless be varied to the extent that it didn't vary the substantive provision that was preserved. In any event, in our respectful submission, it's not about in the sense intended by the legislation when one has regard to the provisions of the legislation dealing with facilitative provisions. Facilitative provisions are found in section 529 of the legislation, remembering that the prohibition on varying preserved award term - sorry. It's not 529. If I can take the Commission firstly to section 554.

PN52

The Commission may have considered that an award or term of an award is ambiguous or, if uncertain, make an award varying the award so as to remove the ambiguity or uncertainty. That's the section under which the Commission acted. Section 552 provides that the Commission must not vary a preserved award term. And we then travel back to 527, which deals with the preserved award terms, importantly subsection (3) of the section provides:

PN53

If a term of an award referred to in subsection (1) is about both matters referred to in subsection (2) and other matters, it is taken to be a preserved award term only to the extent that it is about the matters referred to in subsection (2)..

PN54

So it's a very limited preservation. Then one travels to facilitative provision, which was figuring strongly in my mind a minute ago. In 521:

PN55

An award may include a facilitative provision that allows agreement at the workplace or enterprise level, between employers and employees (including individual employees), on how a term in the award about an allowable award matter or a preserved award term is to operate.

PN56

So a facilitative provision can be about a preserved award term in the same way, as this clause is argued on our learned friend's case to be about a preserved award term, and when one returns to section 552 one sees in subsection (3):

PN57

The Commission must not vary a facilitative provision within the meaning of section 521 except on a ground set out in section 554.

PN58

So a facilitative provision can be varied expressly. Now, when one puts all that together, in our respectful submission one sees that when the legislative draftsman has used the sense about in one provision, he's used it in a very deliberate and confined sense and in another provision in a much broader sense. The facilitative provision is about the clause, not because it confers the rights that are in the preserved award term, but because it deals with it. And if it deals with it, it's not caught by the prohibition on varying the preserved award term. Even if it were it could not be caught to the extent that it doesn't reflect the term itself because of subsection (3) of the preserved award term's provisions.

PN59

Now, when one tracks all that through in this case one needs to recall what the Commission was doing, was not varying a substantive provision, but varying the words to ensure the substantive provision that was conferred was not affected. For that reason subsection (3) of the preserved award terms sections would make provision to enable the Deputy President to do that, which he did. We then see in paragraph 10 of the grounds an allegation that his Honour failed to acknowledge that his discretion to vary the ASC award was limited by section 554 to removing an identified ambiguity or uncertainty.

PN60

In our respectful submission that's not an error that would warrant leave to appeal, the failure to acknowledge his duty. In any event, he's expressly acknowledged his duty. Everyone addressed him on the basis that that was the limitation on him, he accepted that was the limitation and he proceeded to exercise his duties under that limitation. It is, with respect, a nonsense. Paragraph 11:

PN61

The Senior Deputy President exceeded the limits of his discretion by creating an uncertainty on the face of the ASC award in that he removed an identifiable safety net from the ASC award.

PN62

Now, nowhere in this appeal do we see an allegation that his Honour erred in the conclusion he came to. It's a fascinating notice of appeal. It may be implied or inferred, but they never tackle it head on. And it's only if his Honour is wrong in the interpretation that he applies that there could be any substantive effect on the award. What his Honour has purported to do, and we say has done, is determine what the true meaning of the award is and finding that there is arguably more than one meaning. He accepts evidence as to the mutual intention of the parties at the time the award was made and proceeds to give effect to that evidence. Not in the way the union presided. We accept that.

PN63

But he doesn't ever purport to be varying an award entitlement. Ground 12 simply can not be sustained on the face of the materials. Ground 13:

PN64

He relied on extraneous material to construe that insofar as he relied on extraneous material to construe the ASC award, he failed to have sufficient regard to the conduct of the parties both before the Commission and in their application of parts 2 and 5 of the Metal, Engineering and Associated Industries Award at the workplace.

PN65

Now, the extraneous material is relied on simply in the exercise of discretion as to whether he should vary the award to remove the ambiguity, remembering that the ambiguity that he found was not an ambiguity between the union's interpretation, or our client's interpretation, but between our client's interpretation and another construction that he found well arguable on the face of the award. An interpretation that arose directly from what Senior Deputy - Deputy President Keogh - we didn't have Senior Deputy Presidents in 1989 - what Keogh DP had put to the parties in the very proceedings that are referred to here.

PN66

To suggest that his Honour didn't have regard to it simply flies once more in the face of the materials below. Paragraph 14:

PN67

The Senior Deputy President failed to have regard to custom and practice at the workplace, particularly in respect of the payment of overtime and other conditions of employment.

PN68

Substantial evidence was led, but the Commission was also taken to the authorities. The authorities said when you come to interpret a document the custom and practice is irrelevant and when you come to, if you find ambiguity, determine the appropriate variation it's a variation to remove the ambiguity or uncertainty found and you don't do that expressly. In Telstra, on the basis of the conduct of the parties after the award is made, you only allow evidence of things that occur afterwards so far as they can reflect upon the mutual intention of the parties objectively determined at the time as passed.

PN69

So to suggest that his Honour erred in following full bench authority that his attention was specifically directed to ought not warrant a grant of leave to appeal. And there we have the grounds of appeal. Now, no doubt my learned friend, with the benefit of a weekend preparing this case, would wish to advance an appeal. But whatever case he puts, in our respectful submission, it won't be the appeal that our client's been put to the expense of preparing a response to. It won't be this appeal because this appeal was doomed to fail. It will be an appeal that is pressed not within time.

PN70

In our respectful submission leave ought not be granted and the question ought to be considered not as my learned friend puts on the question of some omnibus wrapping up of the case that might be argued on appeal, but on the very face of the document that's advanced as the appeal. May it please the Commission.

PN71

JUSTICE GIUDICE: Excuse us for a moment. Thank you, Mr Hatcher.
Mr Pearce, we don't at this stage intend to call on you to respond to that application. In light of what you said what we intend to do is to adjourn and look at the submissions. We understand you will be about half an hour in oral submissions after that. Our view is, Mr Hatcher, that the utility of dealing with this on a preliminary basis is probably fairly questionable given what Mr Pearce has said about the length of his case. We don't shut out, or rule out, any of the submissions you've made, but we think just as a matter of practicality it would be better in the circumstances to hear Mr Pearce on the basis he's outlined and obviously we will hear you again after that.

PN72

Any submissions you wish to make as to the written submissions and the notice of appeal is fine. Mr Pearce - I should ask, Mr Hatcher, have you seen these submissions?

PN73

MR HATCHER: Just before the Commission.

PN74

JUSTICE GIUDICE: Yes. You haven't really had a chance to look at them?

PN75

MR HATCHER: No. If the bench is minded to rise can I remedy one omission from the appeal book, and I'm not at all critical of the omission. There was a document that is referred to in the transcript as exhibit MFI1. Transcript of proceedings before Commissioner Simmonds in 1995 dealing with the subject award, or one of its predecessors, has dealt with in transcript, the transcript was put before witnesses, there's questions about it, the document was presented to his Honour, his Honour indicated that it being a Commission document he didn't propose accepting it as an exhibit.

PN76

JUSTICE GIUDICE: Yes.

PN77

MR HATCHER: It does make some sense of some passages in the appeal book.

PN78

JUSTICE GIUDICE: Yes.

PN79

MR HATCHER: If I could provide that.

PN80

JUSTICE GIUDICE: Yes, that'd be useful. Thank you, Mr Hatcher. What we'll do, Mr Pearce, we're taking you to your word as to the length of your submissions. We'll adjourn until 11.15 and then we'll hear any oral submissions you wish to make and we'll hear Mr Hatcher.

<SHORT ADJOURNMENT [10.38AM]
<RESUMED [11.12AM]

PN81

JUSTICE GIUDICE: Mr Pearce.

PN82

MR PEARCE: Thank you, your Honour. I do have a short matter first which is a question of the application as to the admissibility of further evidence.

PN83

JUSTICE GIUDICE: Yes.

PN84

MR PEARCE: My instructing solicitor wrote to your Honour's associate attaching a draft witness statement from Julius Roe, which produced some further and extensive material. Can I provide to the Commission and my learned friend extracts of the cases that set out the relevant principles on the admission to give evidence. They are the Transport Workers (Armoured Vehicles) case 23 IR 427 and the Administrative & Clerical Officers Association v Custom Officer's case 34 IR 153. I'm sure members of the Commission are well familiar with those cases.

PN85

JUSTICE GIUDICE: Well, was this material that could have been produced?

PN86

MR PEARCE: Undoubtedly, your Honour.

PN87

JUSTICE GIUDICE: Yes. Well, why should it be admitted now?

PN88

MR PEARCE: In terms of the principles of the Transport Workers case the approach of the Commission has been that generally the Commission is reluctant to allow the further evidence to be admitted, and that's found at 428.3 on the page. But at 429 at about point 2 on the page it is said that:

PN89

Nevertheless we have taken into account Mr North's submissions based on deciding cases that new evidence must be admitted if it's likely to change the result. We are not pursued the new evidence foreshadowed by Mr North has that significance.

PN90

And in the CLA case, or the ASOA case, new evidence was admitted and that's found at page 153 where the Full Bench had regard to events that had transpired since the decision of the Commission was given.

PN91

JUSTICE GIUDICE: Well, that doesn't help now.

PN92

MR PEARCE: And indeed as an example of where the new evidence was admitted it had an impact of changing the outcome of the proceedings. In my respectful submission the evidence of Mr Roe is relevant to the question of the intention of the parties.

PN93

JUSTICE GIUDICE: Yes, but the issue is why we should admit it when it wasn't produced. Well, that's the issue I'm asking you about.

PN94

MR PEARCE: Yes. Well, your Honour, I just wanted to say that the starting point is it's relevant.

PN95

JUSTICE GIUDICE: Well, assuming it's relevant why should we permit it in at this stage?

PN96

MR PEARCE: And the second submission is that we would submit that the evidence, if it were admitted, would alter the case of the course of the appeal, or could alter the course of the appeal, and demonstrate that the Senior Deputy President was wrong in reaching his conclusion concerning the intention of the parties, which is the second part of the test, ie. the exercise of the discretion.

PN97

JUSTICE GIUDICE: Perhaps I've misunderstood these authorities. You say that even if the material was available?

PN98

MR PEARCE: Yes. I don't think the authorities say that just because, at least the authorities I've given your Honour, just because the material was available it must be excluded. What they say is that the Commission generally does not admit new evidence on appeal and secondly that it may have the effect that it could alter the outcome of the decision and where it will have the effect that it will alter the outcome of the decision, to be more precise, then it will be admitted.

PN99

JUSTICE GIUDICE: But that's a submission made by Mr North in that case. It's not a submission adopted by the Full Bench.

PN100

MR PEARCE: It comes, your Honour, in my respectful submission, it comes - on my reading of it, it was adopted by the Full Bench.

PN101

JUSTICE GIUDICE: I see.

PN102

MR PEARCE: And I think it comes from the High Court authority which is
Orr's case which I think is at 74 CLR.

PN103

JUSTICE GIUDICE: Yes, very well.

PN104

MR PEARCE: And those are the submissions we make.

PN105

JUSTICE GIUDICE: Yes.

PN106

MR HATCHER: If it please the Commission we oppose the admission of this material. If one has regard to the statement sought to be led the basis upon which it's said that it comes into existence is some surprise at the result of the proceedings which, if that's a special or exceptional circumstance which would warrant granting additional evidence on appeal, one assumes every case would warrant an ability to lead additional evidence on appeal. But more particularly one needs to bear in mind that Mr Roe gave evidence in the proceedings below that which evidence he said was assisted by a review of a file and he was asked to produce the file and resisted production.

PN107

It was called for production of the file, production was resisted. Not available. If you wanted it you should have called for it earlier.

PN108

JUSTICE GIUDICE: And this is from that file?

PN109

MR HATCHER: Well, he says again I've gone back through that file and I've looked for other material in another file that might be relevant. He still doesn't produce that file.

PN110

JUSTICE GIUDICE: Is that a file from archives?

PN111

MR HATCHER: Yes. He doesn't produce the notes that he says he took of the meetings, the absence of which was something upon which his Honour drew an inference in the proceedings below. In our respectful submission the Commission wouldn't allow evidence that sought to point to an error in a circumstance where the evidence wasn't produced below and led to an inference in the proceedings below. I put that before you with the attempt to re-express it. His Honour found that an inference was available, and properly so we would say, that the notes that Mr Roe had kept, extensive notes as he exposed in his cross examination, of his meetings with ASC and the negotiations for an award, which were not annexed to his statement and were not produced in response to a call, would not have assisted in resolving any controversy between the parties.

PN112

Now, that's the proper inference, we say, to draw. Mr Roe now says I'm still not going to produce those notes, but I've gone and had a look at another file and I'd like to put in these two documents, my selected review of another file. In our respectful submission it would be difficult to get that material in at first instance, let alone on appeal, particularly when the only basis it's advanced on appeal is I was surprised by the decision below. May it please.

PN113

MR PEARCE: Your Honour, I don't think the question of what other material was or was not produced below is relevant to this question. If my learned friend would wish to have that material produced below, I understand a call was made for the files in Melbourne. If my learned friend had wanted to have that material produced below, or his instructing solicitor, he could have easily issued a summons from the Commission. I'm sure he probably would have got the summons and got the material, subject to any views that may be held about it being confidential material. So that part of it is irrelevant.

PN114

Your Honour and members of the Commission, all we rely on from this document, what we rely on is what he said in his report at about point 5 on annexure A where Mr Roe said:

PN115

The award and the deletion of the sentence in clause 7(i) strengthens our right to enforce award standards such as RDOs, et cetera. It is now clear that the metal industry conditions apply, except where they're specifically dealt with in this new award. That is, of course, the construction what the AMWU contended for below and the construction that we contend for today of the particular clause in question.

PN116

MR HATCHER: May I say if that's all that's relied on it's not admissible on my learned friend's submissions. What one industrial officer says to his executive after an award is made can hardly be prohibitive of the mutual intention of the parties at the time the award was made on the authorities my learned friend cites in his submissions.

PN117

JUSTICE GIUDICE: Yes. Mr Pearce, is that the, or are they, the two sentences which in your submission - I'm sorry?

PN118

MR PEARCE: Yes. They're the two sentences that are relevant.

PN119

JUSTICE GIUDICE: Which you say might have changed the result?

PN120

MR PEARCE: Yes, your Honour on the discretionary aspect.

PN121

JUSTICE GIUDICE: Yes, on the discretionary aspect.

PN122

MR PEARCE: It's not admissible on the construction of the award because it's history after the making of the award which the authorities say can't be relied on. But it would be admissible on the second question, the exercise of discretion, because the FSU and Colonial Mutual cases, a matter that's relevant to be considered, was whether one exercise in the discretion to deal with the award in the context of ambiguity or uncertainty was the intention of the parties at the time. I might say in relation to annexure B I don't think it carries us very far. That's a letter from the industrial relations office some time afterwards.

PN123

At about point 5 he repeats something that was obviously in the letter from
Mr Acton to him. I don't think that particularly advances anything. I don't think that constitutes any sort of endorsement of the position.

PN124

DEPUTY PRESIDENT IVES: Mr Pearce, I'm not entirely sure how you say those particular sentences go towards the intention of the parties in any event. As I understand it you're saying that it bears upon the discretion of the Senior Deputy President when he's considering the intention of the parties? Is that correct?

PN125

MR PEARCE: Yes, that's right.

PN126

DEPUTY PRESIDENT IVES: Yes. Well, why do those two sentences bear upon the intention of the parties?

PN127

MR PEARCE: Well, they record the intention of Mr Roe, one of the parties.

PN128

DEPUTY PRESIDENT IVES: Well, don't they simply do what Mr Hatcher suggests, in represent a statement from one industrial officer to his executive after the event?

PN129

MR PEARCE: Yes. Mr Roe negotiated the award and as I'm going to shortly take the Commission to when he appeared and made statements at the time the award were made. It's not the opinion of someone how - it's the opinion, in my respectful submission, of probably the decision maker - and I haven't, as far as I know the other side don't demure in that description - the decision maker on the part of ADSTE at that time.

PN130

DEPUTY PRESIDENT IVES: Thank you.

PN131

JUSTICE GIUDICE: Just excuse us, gentlemen. Now, gentlemen, what we've decided to do is simply to defer a final ruling on the admission of the material, but we'll hear what anybody's got to say about it on a provisional basis. I assume you've pretty much said what you were going to say anyway, Mr Pearce.

PN132

MR PEARCE: I have, yes.

PN133

JUSTICE GIUDICE: Yes. Possibly Mr Hatchet's in the same position. But we'll deal with it in our decision as a whole.

PN134

MR HATCHER: Yes.

PN135

JUSTICE GIUDICE: If that's acceptable?

PN136

MR PEARCE: Yes. Your Honour, can I just draw the Commission's attention to the clause in question. It's most conveniently set out in the first decision of the Senior Deputy President at paragraph 8, which is in appeal book 5. It's at page five and it's at paragraph 9. The clause in question as it had come through from the earlier awards provided:

PN137

The conditions of employment to apply to employees covered by this award shall, in general terms, not be less favourable than those prescribed for the appropriate classifications under the Metal, Engineering and Associated Industries Award 1998 - Part II - Draughtsmen, Production Planners and Technical Officers, and the Metal, Engineering and Associated Industries Award 1998 - Part V - Foremen and Supervisors. To some extent as indicated below, some conditions may differ from Metal, Engineering and Associated Industries Award 1998 standards.

PN138

Now, can I say - - -

PN139

JUSTICE GIUDICE: Can I just ask a question, Mr Pearce. I wasn't too sure, but I assume that the reference to "below", it was never another part of the clause itself, but that's presumably a reference to other provisions which do deal with Metal Industry Award provisions?

PN140

MR PEARCE: That's so, your Honour.

PN141

JUSTICE GIUDICE: Yes.

PN142

MR PEARCE: The 1998 award is found at - I wasn't going to take your Honour to this - at appeal book 241 and the clause as it was made is at appeal book 242 and I have to clarify that question by saying that when the award was made there were below, there were other clauses in the award - sorry, in that there were other provisions in that clause.

PN143

JUSTICE GIUDICE: As part of that clause?

PN144

MR PEARCE: Yes.

PN145

JUSTICE GIUDICE: Yes.

PN146

MR PEARCE: But in the evolution they seem to have found their way into separate provisions.

PN147

JUSTICE GIUDICE: Independent clauses.

PN148

MR PEARCE: Yes.

PN149

JUSTICE GIUDICE: Yes.

PN150

MR PEARCE: Perhaps it's appropriate if I - it's at 242. They deal with, and over at 243, start and finish, smoke free workplace policy, annual leave, other leave, superannuation. They deal with, the award itself, they deal with specific matters and the Commission will be astute to note that the award itself is not a voluminous award, certainly not an award in the style of the Metal Industries Award or a more generally applicable award and it's an award that would be apt to be characterised as an award that, if our constructions are right, generally picked up the terms of the Metal Industry Award - and I hope the Commission will bear with me for not using the newer and more modern names - the Metal Industry Award, save for the exceptions which were set out at clause 7, clause 8, right of entry, notification of change and, I think, Metal Industry Award restructuring.

PN151

But I think from reading the material that clause 8, handling of employee concerns, represented the actual provision that then existed in the Metal Industry Award. So it's the context of the award as a whole, making as it does at that time fairly limited prescription about many matters that one would normally be expected to find in an award, is a context that's apt to support the construction that the AMWU contended for in the meaning of the clause. And that construction was below and I hasten to add at the time when the award was made, and I'll take the Commission to that, that the conditions of employment to apply to employees covered by this award shall be no less favourable than those prescribed for the appropriate classifications under the Metal Industry Award parts 2 and 5 and then it was said the rest of the clause details the extent to which there might be a difference from the standards set down in the Metal Industry Award.

PN152

Now, can I say to the Commission looking at the clause, which as I said is at paragraph 9 of this first decision, in my respectful submission, your Honour, the clause is apt to be characterised as having that construction except for two things. The appearance in the first sentence of the words in general terms and the appearance in the second sentence of the words "to some extent as indicated below". Although in the context where it's clear that things were indicated below, that is not as great a difficult, in my respect, as perhaps the proposition in general terms.

PN153

JUSTICE GIUDICE: There is a conflict, isn't there, between the idea that the provisions of the Metal Industry Award are incorporated by reference picked up, to use a general expression, and that the other term "general terms"?

PN154

MR PEARCE: No, your Honour. I was going to .....

PN155

JUSTICE GIUDICE: You were going to solve that?

PN156

MR PEARCE: That's almost the essence of the appeal point. Can I just briefly - or one of the essences of the appeal point.

PN157

JUSTICE GIUDICE: Yes.

PN158

MR PEARCE: Can I just briefly remind your Honour and the members of the Commission of what's said at part F about the general approach to award construction and I only want to, I think the case of the decision of French J in City of Wanneroo and Holmes is very well, known. It's not found in 70 IR, I think. I think it's found in a much earlier IR. But I've provided that to the Commission in the tabs. And these are well known principles. I just want to remind the Commission. The first one is that the interpretation of award begins with the consideration of the natural and ordinary meaning of the words and the second one is that the words are to be read as a whole and in context. The other - sorry. I've got copies of that decision I'd like to provide to the Commission.

PN159

JUSTICE GIUDICE: Yes, thanks. Well, I think you've set out the passage in any event, haven't you?

PN160

MR PEARCE: Yes, I have, yes. Just that they weren't in our bundle.

PN161

JUSTICE GIUDICE: Yes. Well, thank you. We'll accept those.

PN162

MR PEARCE: The other observation from the City of Wanneroo, which I think is a well trod ground now, is that of course evidence of the conduct, parties subsequent to the making of the award can not be relied upon. Now, your Honour, in the - again turning to the submissions - in the City of Wanneroo his Honour French J said about the middle of that quote:

PN163

Resort to such matters as prefatory statements in negotiations is a dubious assistance if admissible at all.

PN164

And he relies on Seymour v Stawell Timber Industries Pty Ltd. Now, your Honour, with the greatest of respect to French J in my respectful submission that is not what really at the end of they, it probably it is in part what Seymour's case stands for, but Seymour's case stands for a broader proposition and that is set out at paragraph 15 of our outline that in circumstances of ambiguity, or indeed in, I think, Keely J decision in other circumstances:

PN165

Extrinsic evidence of statements made at the time of the making of an award explaining the meaning of the language used in the award is admissible in order to ensure that language used is construed in such a way as to reveal the real minds of the party.

PN166

And I will provide to the Commission copies of that decision. That's found at 13 IR. If I can just remind members of the Commission what the issue was in this case. It's conveniently summarised in the first three paragraphs of the judgment of Milthrop J at page 289 where he said:

PN167

The substantial question raised in these proceedings is whether part 3 of clause E35 of the Carpenters and Joiners Award 1967, the award imposed an obligation upon the respondents to follow to pay it's apprentices the rate of pay prescribed by the award. That part is as follows, except where inconsistent with this division the regulations of the Apprenticeship Commission of Victoria shall apply to apprentices in that state. The question is whether those regulations apply to the respondent as part of the law of the State of Victoria or whether the award makes those regulations apply to the respondent as part of the award of the Commonwealth.

PN168

That was the question. In the course of the consideration of what the construction of that clause meant, the reference was had to a preamble or statement that was made at the time that the award was made and argument was had between the parties as to whether consideration could be had to an agreed statement that was made at the time the award was made as a preamble. And both Keely J and
Gray J took the view that recourse could be had to that statement for the purposes of construing the award and that's what we rely on this decision for, this judgment for. Keely J deals with it at page 299 and he says, about point 3 on the page:

PN169

If the opinion already expressed that clause E35 part 3 construed in its context merely preserves the operation of the regulation that the State law is not correct then in my opinion the subclause is not free from ambiguity. In those circumstances, although extrinsic evidence can not be admitted to add to or subtract from its terms, nor to vary those terms, the evidence is admissible of statements made jointly by both parties at the time of the agreement explaining the meaning of the language used by both parties. Such evidence is admissible in order to ensure the language used is construed in such a way as to reveal the real mind of the parties.

PN170

And then his Honour goes on to refer to reference to Chitty. Then further down the page he says:

PN171

At the hearing before these proceedings -

PN172

He referred to a full court:

PN173

- Mr Kinane very properly placed before the court certain material aspects of the circumstances in which the award was made. Notwithstanding that in his submission it was not permissible for the court to have recourse of that material in construing the award.

PN174

Before the full court that submission was renewed and in my opinion the applicant's submission is not supported by those authorities and is inconsistent with the dictum of Tindall CJ in Shaw v Wilson cited by Chitty and then his Honour goes on to describe what the material tended to show. And over the page at page 300 at about point 4 on the page his Honour said:

PN175

In my opinion the passage quoted from the decision of the Commission reported in the Commonwealth Arbitration report on the pages immediately preceding the award removes any ambiguity and makes it clear that part 3 of clause E35 merely preserved the operation of regulations of State law.

PN176

Gray J also dealt with the question and at page 308 at about point 5 on the page his Honour said this:

PN177

Attention was also directed to a preface to the award which was apparently agreed by all parties and which appears in the decision of Mr Commissioner Matthews in which the award was made. See 1967 117 CLR 13, 15 and 16.

PN178

Clause 5 of this prefaces as follows:

PN179

As to apprentices in Victoria it will be noted from part 3 of clause B36, for instance, that regulations of their conditions have been left for the State authorities for the present. The rights of the parties on this matter are reserved however.

PN180

And then Mr Kinane contended that it was not permissible for the court to look at such a preface and ultimately in the balance of that page and over the other side of the page his Honour said at about point 9 on the page, the second last sentence:

PN181

If a court is applied to face the task of construing an ambiguous provision and award and if the means existed resolving that ambiguity by reference to actual expressed intention, either of the arbitrator or the parties in the case for the consent award, it's difficult for the court to turn it's back on such means. I therefore favour the review that resort should be had to such means as will assist in ascertaining the intention of the maker or makers of the award in the case of an ambiguity.

PN182

So we say that Seymour's case is authority for the proposition that statements made by parties at the time when the agreement was reached, or the award was made, are admissible for the purposes of construing the meaning to be given to the clause in question. And in these proceedings there was, and there is, such a statement and it does, in my respectful submission, support the construction that the AMWU seeks to put on this clause.

PN183

JUSTICE GIUDICE: What's that statement?

PN184

MR PEARCE: It was a - I'll take your Honour to it shortly. It's in the transcript. Mr Roe described what the clause was intended to mean and the employer did not demure from that description. I'll take your Honour to it. So in short, dealing with grounds three, four, five, six, seven and eight and rolling them up, these grounds proceed generally on the basis of demonstrated appellable error by the Senior Deputy President in the construction which he placed on the terms of clause 9 of the ASC award and in his first reasons for decision. His reasons are summarised in the outline at paragraph 9, and I don't take your Honour to it, but I apprehend that your Honour and the members of the Commission have read it because your Honour asked me this question about the term in general terms.

PN185

We say that the demonstrable error in the construction of the provision takes three forms. First of all that the provision was not construed in accordance with the natural and ordinary meaning of the words, secondly that the Senior Deputy President failed to have regard to extrinsic evidence which he could and should have had regard to, namely the statement of Mr Roe, at the time when the award was made and thirdly, the error was that the Senior Deputy President had regard to extrinsic evidence which it was not permissible to have regard to, namely the existence of the third clause which was omitted from the terms of the clause at the, I suppose I think at the direction, I think, or the suggestion, or I think it was somewhere between those two terms, of Keogh DP.

PN186

Dealing with the first of those points the Senior Deputy President at paragraph 33 refers to the Macquarie dictionary and then says - - -

PN187

MR HATCHER: I hesitate to interrupt my friend, but I might let the bench note that we took the point on the question of leave that there was an extensive notice of appeal filed that didn't appear to disclose any ground which would warrant leave and we see nowhere in there a ground that the interpretation adopted by his Honour does not reflect the clear and expressed words of the provision.

PN188

MR PEARCE: Well, I think there's a ground, but he didn't construe it in accordance with the ordinary and natural meaning of the work. And that's precisely the point I'm making.

PN189

MR HATCHER: Perhaps if my friend can attend upon the grounds it will overcome the difficulty.

PN190

JUSTICE GIUDICE: Yes. Well, we certainly didn't gain the impression, I must say, from the written submissions that the case was travelling beyond the grounds.

PN191

MR HATCHER: And I think the reason I rise now rather than then is I didn't see this ground in the written submissions.

PN192

JUSTICE GIUDICE: Yes. What do you say about that, Mr Pearce?

PN193

MR PEARCE: I just find out, your Honour. It's ground three as to the extraneous material.

PN194

MR HATCHER: Except that wasn't the point that was addressing.

PN195

MR PEARCE: Well, I'm addressing all three rather than - it's ground five, your Honour.

PN196

JUSTICE GIUDICE: Perhaps, Mr Hatcher, it might be something that you can deal with in your submission.

PN197

MR HATCHER: If it please the Commission. I just didn't want to - - -

PN198

JUSTICE GIUDICE: Yes. We've noted the point, yes.

PN199

MR PEARCE: Your Honour, it's ground five, I think, where it says that it erred in adopting a test as being the wording of the clause rather than identifying the ordinary natural meaning of the words.

PN200

JUSTICE GIUDICE: Well, you continue, Mr Pearce. We'll leave it to normal order of submissions.

PN201

MR PEARCE: Yes. So, your Honour, the first errors we say is that the Senior Deputy President did not construe that clause in accordance with the natural and ordinary meaning of the words. The Senior Deputy President referred to the Macquarie dictionary without going into any great detail and then merely adopted the submission of my learned friend's instructing solicitor, Mr Davis, that it meant in broad terms. Now, if I can provide to the Commission and my learned friend extracts from the Macquarie dictionary. The Commission will see that nowhere - I was quite taken by surprise - nowhere in the definition of "general" does one find any reference to "in broad terms" and in my respectful submission the ordinary and natural meaning of "in general terms" is that which is found at two of the definition of "general" where there's a reference to general practice, ie:

PN202

Common to many or most of the community, prevalent, usual.

PN203

And if the term, if the words "in general terms" is construed in that way as being in the usual circumstance or usual or common to or common to many or most of the community or prevalent, then the construction of the clause is, notwithstanding that provision, is that to the construction that was contended for by the AMWU. Your Honour and members of the Commission, there just is no warrant for construing in the sense of the ordinary and natural meaning the words "in general terms" as in broad terms. I haven't brought up a definition of broad, but one would know that there, in my respectful submission, there is not a lot of commonality between those two words and really what "in general terms" means if one is to go to the ordinary and natural meaning of the words, is that it's the prevalent or the usual term. If the words are construed in that way then - - -

PN204

JUSTICE GIUDICE: Which meaning do you rely on?

PN205

MR PEARCE: Two.

PN206

JUSTICE GIUDICE: Two? Thanks.

PN207

MR PEARCE: Can I say, your Honour, that I could rely on one or three as well, but two seems the most apposite. And what I do rely on is one does not find amongst these terms a reference to broad or anything equivalent to that. The second submission that we make is that the Senior Deputy President had failed to have regard to the extrinsic evidence to what was said at the time when the award was made and for that purpose can I take the Commission to the appeal book. It's at appeal book page 188 where the Commission will find the transcript of the proceedings where the award was made.

PN208

And at appeal book 191 Mr Tanner, at about point 2 on the page, gives Mr Roe the nod to make the submissions to Keogh DP as to the terms of the award and
Mr Tanner, of course, was appearing for the Australian Submarine Corporation, the respondent in this appeal. At the bottom of page four Mr Roe said this:

PN209

So with that amendment -

PN210

Sorry. He deals with salaries, then he says:

PN211

Then clause 7 -

PN212

And this is the clause we're dealing with:

PN213

- deals with the conditions of employment and that clause says that the condition of employment to apply to employees covered by this award shall be not less favourable than those prescribed for the appropriate classifications under the Metal Industry Award parts 2 and 5.

PN214

And then the rest of the clause details the extent to which there might be any differences from those standards set down in the Metal Industry Award and those points are in respect of Start and Finish. The clause there says:

PN215

As required to meet an employee's working responsibilities.

PN216

Then the question of smoke free workplace policy, which is not dealt with in the Metal Industry Award. There is a no smoking policy at the company's premises. Then in respect of annual leave the clause is not inconsistent with the Metal Industry Award, but it does specify the question of notices for Christmas close down. Then in respect of bereavement leave and sick leave subclause 5 refers to the standards set by the South Australian Industrial Conciliation and Arbitration Act. In respect of clause 6 employees will be eligible to join the company's super fund and I have one other comment to make about that item in a minute.

PN217

Clause 7 relates to security matters. Now, when he's referring to clause 7 I think he's referring to subclause (7) , not clause 7. That's clear from looking at the award.

PN218

It relates to security matters because the company is engaged in the department of defence production and it is a condition of employment that appropriate level of defence security status can be obtained from an employee within the probationary period of employment.

PN219

Then there was a discussion with the Deputy President about what "can" means and there's some explanation given. Then over the page Mr Roe deals with probationary period. Sorry, I think he's moved on to - no. He's still dealing with the exceptions of termination. He says:

PN220

And then clause 9 relates to termination again. This is not inconsistent with the Metal Industry Award, but does require one month's notice of termination by either party.

PN221

That would, in my respectful submission, be inconsistent with the Metal Industry Award.

PN222

And excepts serious or wilful misconduct as the Metal Industry Award does, but also specifically refers to breaches of commercial or Department of Defence related confidentiality.

PN223

And, your Honour, as an aside I wonder if that provision had something to do with the unfair dismissal laws at that time in South Australia. But in any event it's, in my respectful submission, what's said on the transcript is as being the intention of the parties is very, is the intention or the construction that the AMWU now contends for. And your Honour couldn't be clearly. Now, throughout this
Mr Tanner says nothing. Now, I should just deal with this. The Senior Deputy President dealt with this matter, but for some took the view that because
Mr Tanner gave no evidence to the contrary and was not cross examined, which I think is an unusual proposition, that therefore his evidence could be construed in some way in the present proceedings as saying that he demurred from it. That's the best view I can put it what the Senior Deputy President said.

PN224

DEPUTY PRESIDENT IVES: Well, where does he say that, Mr Pearce?

PN225

MR PEARCE: I think it's in the second decision.

PN226

MR HATCHER: Paragraph 19, if it please the Commission, in the decision of
19 April on page 16 of the appeal book.

PN227

DEPUTY PRESIDENT IVES: Thank you.

PN228

MR PEARCE: Thank you. Now, I don't think that's a proper formulation of the rules of evidence to suggest that where no evidence is given in reply on this point, which was clearly and plainly relied on by the AMWU below, that some inference could be drawn because Mr Tanner wasn't cross examined on the evidence he didn't give. So that's the second point we make, that the Senior Deputy President should have, as a matter of construction because of Seymour's case, had regard to the clearly stated intention of the parties at the time the award was made. And I remind the Commission, because I said it at the outset, that it was Mr Tanner, and it's clear from the context of the transcript, who gave Mr Roe the nod to make the submissions on behalf of the parties.

PN229

The third proposition we advance is that the Senior Deputy President had regard to extrinsic material that he couldn't have regard to which was the part of the clause which was deleted by consent. And I think that's dealt with in paragraph - that clause is set out in paragraph 16 of the first decision, AB7. The Senior Deputy President, in my respectful submission, impermissibly construed the clause as it was made by reference to a provision that it had earlier been there, but it was specifically taken out of the clause. Now, that clause was removed at the, I think I've said the direction, at the suggestion of Keogh DP and that exchange appears at page eight of the transcript, page 195 of the appeal book where his Honour said this:

PN230

Can I take you back to clause 7? Yes. Paragraph 1 of that provision? Yes. This proposed award reflects a minimum rates award? That is correct. I have some concerns about seeing written into a minimum rates award the type of sentence which is contained in the last sentence of paragraph 1 when you speak about the intention of. You see the point you are raising? I see the point you're raising. You see, the point is it's a minimum rates award and if that is left like that, de-facto you are obtaining could be argued that you are obtaining award entitlements to whatever you go out and privately agree to.

PN231

So that particular sentence was deleted and was no longer part of the clause that the Senior Deputy President was called to construe because the making of that clause would have been inconsistent with the then national wage principles. The national wage case in question is in the first case of our tab and I don't want to overstay my welcome by particularly taking the Commission to it. It's at 25 IR 170.

PN232

JUSTICE GIUDICE: Mr Hatcher wants a vote on that, I think.

PN233

MR PEARCE: He would. I'm about to be coming to the end of what I have to say, I must say. Where there was a minimum first award and it had to be made to the minimum rates award and I think if - I'll paraphrase it this way - if the construction that my learned friend will shortly contend for about this clause be true, ie. that it's an overall standard thing and, you know, if just in a general way, then in my respectful submission that clause couldn't have been made and would have been inconsistent with the national wage principles that applied at that time. And that is of assistance, obscurely perhaps, but of assistance in also appreciating the intention of Keogh DP also at the time when the award was being made, which I think the authorities indicate is a relevant matter and Seymour's case indicates that it is a relevant matter to have regard to.

PN234

So they are the three points that we make. The Senior Deputy President didn't apply the ordinary natural meaning of the word "in general terms". He failed to have regard to crucial extrinsic material which the authorities say can be admitted and which is all our way and finally that he had regard to extrinsic material which he couldn't have regard to. And as a sub part of that, that if the construction contended for by my learned friend is right, then the clause itself would have been contrary to the national wage principles as they then applied. Can I then just briefly deal with ground seven and eight.

PN235

JUSTICE GIUDICE: Can I just stop you on one thing, Mr Pearce. The issue about the deletion of that last sentence and what you say was a clash with the wage fixing principles, what's the particular passage you rely on in the Senior Deputy President's decision on that point?

PN236

MR PEARCE: In the transcript?

PN237

JUSTICE GIUDICE: No, in the Senior Deputy President's decision. What's the passage that you are directing our attention to? Is that paragraph 23 in the second decision that you're referring to?

PN238

MR PEARCE: Is your Honour asking about the third proposition, that he had regard to extraneous provision?

PN239

JUSTICE GIUDICE: Yes. That he had regard to the Deputy President deleting the sentence.

PN240

MR PEARCE: Yes. He refers to it as 16 and I think it's in the third decision as well.

PN241

JUSTICE GIUDICE: Yes, I follow. That goes right through to 19, I think.

PN242

MR PEARCE: Yes. Because the concepts get overlapped.

PN243

JUSTICE GIUDICE: Yes, I follow.

PN244

MR PEARCE: Because the intention is relevant. Some indications of intention are relevant for construction of the award and perhaps all indications of intention are relevant for the exercise of the discretion.

PN245

JUSTICE GIUDICE: Yes.

PN246

MR PEARCE: Now, that brings me to what I think are grounds seven and eight rolled up. We say the appellable error concerning the exercise of discretion was an error on the part of the Senior Deputy President in properly determining what were the intention of the parties. I think I'll just submit generally that the reasoning of the Full Bench in Colonial Mutual v FSU, which is found at 204 132 IR 149, we've got copies of that. I think it's in the respondent's bundle anyway. You'll see at about paragraph 35, and this was common ground between the parties below, that a very relevant matter as to the exercise of the discretion is the intention.

PN247

Now, we don't see that there's any reason to, in the new Act, that that part of the FSU and Colonial Mutual would apply. There may be reasons why the first proposition that it's a jurisdictional precondition may not apply, but it doesn't really - his Honour proceeded on the basis that it did apply as a jurisdictional precondition, but there may be a reason on the reading of the Act now that that may not be the case. That's discussed in, perhaps obliquely, in the outline at paragraph, I think, (c).

PN248

JUSTICE GIUDICE: But the existence of an ambiguity or an uncertainty is to be judged objectively, is it not?

PN249

MR PEARCE: No. I think on my reading of the new Act I think it's, and I say so, it's to be judged subjectively.

PN250

JUSTICE GIUDICE: It's a difficult proposition, isn't it?

PN251

MR PEARCE: Well, we're back in Hunter Valley number one territory? Well, in any event your Honour has the benefit of what I say at paragraph - - -

PN252

JUSTICE GIUDICE: Please, Mr Pearce.

PN253

MR PEARCE: Your Honour has the benefit of what I say at paragraph 8 there.

PN254

JUSTICE GIUDICE: Yes, I've read that. I just wondered whether you could really say it is subjective. Anyway.

PN255

MR PEARCE: Anyway, it doesn't arise in this appeal. But certainly what I am saying is that the other part of the FSU decision is still undoubtedly good law. Now, if that be right in our respectful submission what I've said about the intention of the parties in the evidence in relation to the construction of the clause is, in my respectful submission, ought to have been decisive as to what the intention of the parties were and the variation, the exercise of discretion should not have occurred and the variation should not have been made. Can I then just finally, without going to it, deal with the question of the preserved award matters and that's set out in the outline at page 16 and I'll just refer the Commission to that.

PN256

I think we're right about the construction about the, in my respectful submission, of what the term means. Then the term, or some matter governed by the term, would be preserved matters for the purposes of section 527 and in our respectful submission it may be the Senior Deputy President could have varied the term to deal with ambiguities, but he could have not have varied it to deal with those particular noted matters at section 527, which I think include annual leave, personal carer leave, parental leave and long service leave, but of course not notice of termination.

PN257

Well, notice of termination, perhaps, appears elsewhere in the award, but not jury service or superannuation. So they're the submissions that we make if the Commission pleases and I'm sorry I went a little bit longer than I said I would.

PN258

JUSTICE GIUDICE: Yes. Thanks, Mr Pearce. Mr Hatcher?

PN259

MR HATCHER: I wonder if I could crave the Commission's indulgence to a short adjournment?

PN260

JUSTICE GIUDICE: Yes. Mr Hatcher or Mr Pearce, in normal circumstances we might sit a bit later over the luncheon adjournment if it looked as though we could finish this without the need for a luncheon adjournment.

PN261

MR PEARCE: That would be excellent, your Honour.

PN262

MR HATCHER: We certainly believe that could be achieved.

PN263

JUSTICE GIUDICE: Well, the problem is that - well, we'll adjourn for a few moments and we'll come back and see how far we get.

<SHORT ADJOURNMENT [12.09PM]
<RESUMED [12.14PM]

PN264

JUSTICE GIUDICE: Mr Hatcher?

PN265

MR HATCHER: May it please the Commission. We resist the applicant's prayer for leave to appeal. I've addressed that already in some large part, but can I now attend upon the grounds upon which the applicant seeks leave to appeal. It can be found on page 22 paragraph (i) of the submissions that my learned friend has helpfully provided this morning. We see that paragraph 19 in summation:

PN266

Leave to appeal should be granted for the following reasons. The appeal raises significant questions as to the interpretation of 554 of the Howard Andrews Act.

PN267

My learned friend sat down, I think, on the proposition that this case does not raise any questions about the interpretation of section 554 of the Act. He did say that there may be a question as to whether it is now a subjective test or an objective test, but it doesn't really arise in this case and if it did, I might say, it would be in favour of the respondent rather than the appellant. Secondly he relies on the grounds and reasons set out in the appeal and outline of submission which demonstrated appellable error. Now, the Commission's heard me on the grounds of appeal.

PN268

To the extent that the outline of submissions is any more extensive than the grounds of appeal we object to the Commission acting upon it. There's been no application for leave to amend the appeal and we would resist such application. So the appeal is pressed on the basis of the grounds therein. Were the Commission to find against us on the question of leave we would say that the appeal ought be dismissed. My learned friend's analysis of the learned Senior Deputy President's decision does not, with respect, do justice to the way in which his Honour approached his task.

PN269

My learned friend submits that his Honour made three errors. His Honour's interpretation was contrary to the clear and express words of the clause. In our respectful submission that misstates the test. One isn't confined to the words of a clause. One interprets words in a purposive sense having regard to the instrument in which they appear. There's any amount of High Court authority for that proposition. Project Blue Sky is perhaps most prominent among them. And that is exactly the task that his Honour embarked upon and that's why his Honour had regard to the fact that our client wasn't otherwise bound by the Metal Industry Award and that there was an expressed provision that any award that might have otherwise bound our client would not apply.

PN270

His Honour said in those circumstances one would want to see a fairly specific provision to overcome that clear intention that another award would not apply and against that background I turn to this clause. Now, my learned friend said that his Honour did not have regard to what took place before his Honour Keogh DP. His Honour certainly expressed himself to be having regard to what occurred before Keogh DP. He dealt with it in some detail and, in our respectful submission, he dealt with it correctly. Can I take the Commission to the transcript of what occurred before Keogh DP.

PN271

There's much more to be seen than that which our learned friend took the Commission to in his short discourses on the subject. He commenced at page four of transcript, page 191. It's important to observe that at this point Mr Roe was addressing an award that contained the clause with the third sentence in. When he is saying that the purpose of this clause, clause 7, deals with the conditions of employment and that clause says that the conditions of employment to apply to the employees covered by this award shall not be less favourable than those prescribed for the appropriate classifications under the Metal Industry Award.

PN272

And then the rest of the clause details the extent to which there might be any difference from those standards. He's dealing with the clause prior to the amendment. The full cause that his Honour Cartwright SDP had regard to in the proceedings below. My learned friend in his submission perhaps mistakenly at page eight in paragraph (v) on that page, says at paragraph 18 it's noted that the Senior Deputy President drew attention to the proposed clause in its earlier form observing it did not say what Mr Roe submitted as a result of which it was amended. The Senior Deputy President appears not to have understood the significance of his own conclusion in this respect.

PN273

Now, if one goes to exactly what his Honour is dealing in paragraph 18 one sees that his Honour says, this is paragraph 18 of the second judgment which is to be found at page 16 of the appeal book:

PN274

Such explanation seems inconsistent with the language of the second sentence -

PN275

Now, he's here dealing with the words that I've just read of what Mr Roe had just said on transcript.

PN276

Such explanation seems inconsistent with the language of the second sentence and with the words of the third sentence of the agreed clause, nor was it the only apparent inconsistency. Keogh DP drew attention to the purpose of the proposed clause 7(7) -

PN277

or subclause (7) of clause 7:

PN278

- observing that it did not say what Mr Roe submitted as a result of which it was amended.

PN279

Can we then return to page 192 of the appeal book and at about point 5 Mr Roe says:

PN280

Clause 7 relates to the security matters. It says because the company is engaged in Department of Defence production it is a condition of employment that an appropriate level of defence security status can be obtained for an employee within the probationary period of employment.

PN281

His Honour says what does that mean, can be obtained? Does it actually mean must be obtained? Mr Roe seeks to answer. The exchange continues.
Mr Roe can't answer. Towards the bottom of the page his Honour says:

PN282

Well, I would suggest that is not what the provision says.

PN283

Mr Roe understands that. His Honour asks him whether he's going to address that. He says:

PN284

Yes, at a point I think we should.

PN285

And then he comes back to it at about point 4.

PN286

If we go back to the security matters, perhaps if we just take out the word "can", Deputy President, I think that would satisfy the problem. Well, we will amend the exhibit R3 accordingly by dropping the word, deleting the word "can" from clause 7(7).

PN287

So what his Honour Cartwright SDP is saying is one ought not regard Mr Roe's words as being definitive as to the operation of the clause. Clearly they were wrong as to another part.

PN288

JUSTICE GIUDICE: Nobody pointed out.

PN289

MR HATCHER: I'm sorry?

PN290

JUSTICE GIUDICE: But nobody pointed out an error in the other part.

PN291

MR HATCHER: Well, his Honour Keogh DP did and I'll come to that next. Remembering that Mr Roe was addressing the second and the clause with the second and third sentence in. Now, at page 194 of the transcript - I'm sorry. If we continue through to page 195 at about point 8:

PN292

Can I take you back to clause 7. Yes. Paragraph 1 of that provision. Yes. This proposed award represents a minimum rates award. That is correct. I have some concerns about seeing written into a minimum rates award the type of provision which is contained in the last sentence of that paragraph 1 where you speak about the intention of the - yes, I see the point you were raising, Deputy President. You see, the point is it is a minimum rates award and if that is left like that defacto you are obtaining, it could be argued, that you are obtaining award entitlement to whatever you go out and privately agree to.

PN293

Now, can I just remind the Commission of the sentence that the Deputy President was referring to. It's conveniently found again at page 16 of the appeal book in Cartwright SDP's second decision. The third sentence is:

PN294

However, the intention of the overall package offered to applicants for employment is that it should reasonably exceed the minimum standards set by that award and represent a proper base for the company to attract the quality of employee desired and offer such employees continuing satisfactory conditions of employment.

PN295

His Honour says well, if you make that the term of the minimum rates award you may be, in fact, conferring an award entitlement to the contractual rate on the employee. Now, we may agree or disagree with that view, but that's clearly what his Honour was saying. He's not saying that the intention isn't a valuable intention for the parties, just it's not an intention that ought to be reflected in an award because if you incorporate it in an award it may do more than simply reflect the parties' intention. He then continues:

PN296

In view of the current principles I would have some difficulties with such an open ended arrangement.

PN297

Mr Tanner then says:

PN298

If it would help the Commission, Mr Deputy President, the ASC would have no objections to striking that from the agreement, that sentence.

PN299

His Honour:

PN300

Well, that, I take it that what you are saying is that you have got objections to striking that sentence from the post award.

PN301

I think that should be you have not got objections.

PN302

Yes. But you would want to make that intention clear on transcript. Yes, yes, Deputy President.

PN303

And Mr Roe:

PN304

That was the suggestion I was going to make, Deputy President.

PN305

Now, for our learned friends then to put on appeal that it was impermissible, because they do, that it was impermissible for Cartwright SDP to have regard to that third sentence. When Mr Tanner is in the witness box and he's not asked in cross examination, not afforded an opportunity to say I wasn't saying I agreed that the Metal Industry Award was incorporated as the minimum conditions under this award, contrary to the express agreement between the parties. And the Commission has asked to move upon a basis that he didn't deal in his evidence in chief with a matter that only arose in the address at the end of the proceedings before the learned Senior Deputy President in first instance.

PN306

That clearly offends the rule in Browne v Dunn. If you're going to put a submission like that you must put it fairly to the witness. If you're going to submit that the witness embraced something that was clearly contrary to the expressed intention on transcript and do so intentionally, you really ought in fairness put it to him. That's what the Senior Deputy President was saying and that's entirely unexceptional.

PN307

JUSTICE GIUDICE: Well, what's the relevance of the subjective view of
Mr Tanner in 2005 to what happened as recorded in the transcript in 1989?

PN308

MR HATCHER: His subjective view in 2006 perhaps, your Honour?

PN309

JUSTICE GIUDICE: Yes.

PN310

MR HATCHER: As to what he - - -

PN311

JUSTICE GIUDICE: Well, isn't that the point, that he should have been cross examined in 2006?

PN312

MR HATCHER: Only if it's to be put that what he agreed to in 1989 by saying I adopt Mr Roe's submissions in the context that all had become before was agreeing to a submission that is said to have been put by Mr Roe that this was an award conferring minimum rates, minimum entitlements in express terms flowing from the Metal Industry Award. It's contrary to everything that Mr Tanner put in his evidence as to his intention, his understanding based on conversations of every parties' intention of the documentary evidence reflecting the parties' intention of the document that was proposed before the Commission.

PN313

I mean, in our respectful submission, if you're going to put that he clearly intended to do something that was so at odds with all the objective evidence and you're going to rely on it, you ought to give him an opportunity to deal with it.

PN314

JUSTICE GIUDICE: What was the position before the Deputy President did - is Mr Tanner recorded as having adopted Mr Roe's submissions?

PN315

MR HATCHER: He is, your Honour.

PN316

JUSTICE GIUDICE: What page is that?

PN317

MR HATCHER: I'm sorry, your Honour?

PN318

JUSTICE GIUDICE: I was just going to ask what page it is.

PN319

MR HATCHER: It's the following page, 197 of the appeal book. This is point 2:

PN320

Thank you, Mr Roe and Mr Tanner. Yes, thank you, Mr Deputy President. I am happy to adopt Mr Roe's submissions in relation to the proposed award. It has been quite a fruitful exercise, I think, for the parties. The process of negotiation. We have a healthy relationship with the association at the moment and we expect to for some time in the future.

PN321

JUSTICE GIUDICE: Yes.

PN322

MR HATCHER: Now, to convert that to a specific adoption of a proposal that there was an agreement that the terms of the Metal Industry Award were to be incorporated into this award is, in our respectful submission, a bit breathtaking and he really ought to have been afforded an opportunity to deal with it if that submission was to be put.

PN323

JUSTICE GIUDICE: On the face of the material there's a clear agreement to
Mr Roe's submissions, isn't there?

PN324

MR HATCHER: To Mr Roe's submission in the context to which it was put, your Honour.

PN325

JUSTICE GIUDICE: Yes. Well, I think that may be a separate question. I want to ask you about that as well. Why does the fact that the two sentences were taken out affect what otherwise appears to be the thrust of Mr Roe's submission that the award was incorporated, the terms of the award were to be complied with except as to the matters that were identified?

PN326

MR HATCHER: Well, he doesn't actually say the terms of the award are to be complied with, your Honour.

PN327

JUSTICE GIUDICE: Well .....

PN328

MR HATCHER: What he says is:

PN329

Clause 7 deals with the conditions of employment and that clause says that the conditions of employment to apply to the employees covered by this award shall not be less favourable than those prescribed. And then the rest of the clause details the extent to which there might be any difference from those standards set down in the Metal Industry Award.

PN330

JUSTICE GIUDICE: Well, isn't that the critical sentence?

PN331

MR HATCHER: Well, with respect no because he's there saying we're now not dealing with overall provisions in excess. We're now dealing with things that are expressly different. And you look at them, they're fairly local conditions, starting and finishing times and so forth. Particular arrangements as to security and superannuation.

PN332

JUSTICE GIUDICE: I would have thought the implication of that sentence is that except as detailed in the award the standards set down in the Metal Industry Award are to be complied with. It seems to be what he's saying.

PN333

MR HATCHER: In a general sense. In the overall package. The terms of the clause he was addressing. The intention of the overall package offered to applicants for employment is that it should reasonably exceed the minimum standard. That's the clause he's addressing. And if he's addressed that clause, which so clearly expresses the intention ..... That's the difficulty, in our respectful submission, of the exercise that our learned friend's invited the Commission to embark upon of taking out the document that he's addressing when he's addressing it. And he's addressing in general terms, as advocates do, dealing with the consent award before a tribunal.

PN334

But the evidence disclosed that when ADSTE had a hell of a meeting one employee had turned up. It would be a dramatic, on all the evidence, concession by the ASC that had steadfastly refused to accept the metal industry as binding it, that it would go along and make a consent award effectively binding itself to the metal industry conditions. Mr Tanner said that just wasn't what we were ever going to do. We'd never have consented to such a thing. That's all the evidence before the Deputy President. So one is driven back to the terms of their agreement, as his Honour did. And you go back to the terms of their agreement and that has the third provision in it and it's that that Mr Roe was addressing.

PN335

It's only by adopting the artificial exercise that our learned friend's invited the Commission to embark upon that one finds any support for the approach that they urge upon the Commission. As his Honour the Senior Deputy President observed, it would word curious results. Let put overtime to one side. What about all the other allowances and penalties that would otherwise be payable? Dirty work. All those many things that arise under the Metal Industry Award that clearly the parties weren't dealing with. What ASC was saying is we pay these people a bundle of money.

PN336

MR PEARCE: Where does it say that?

PN337

MR HATCHER: It's in the evidence. I think it was accepted by - my friend asks sotto voce where do they say that.

PN338

MR PEARCE: I thought you said it was in the transcript on the day.

PN339

JUSTICE GIUDICE: Yes. He was saying this was said in 2006.

PN340

MR HATCHER: No. No, your Honour. It was said back in 1989 in the lead up to the award. It was said very clearly and it was accepted by ADSTE, the relevant union at the time that they were paid well in excess of award conditions and that ASC did not wish to be bound by the strictures of the award. They were content to ensure that the employees weren't disadvantaged. There's quite some evidence about this. Interestingly Mr Tanner gives evidence about there were four people who negotiated this award. Mr Tanner gives evidence and produces his notes and he drafted the award provision.

PN341

There was another officer of the company, a Mr Cameron, and he was also present in the negotiations and he gave evidence. I don't suggest he had a very clear recollection of what went on, but his evidence was supportive of Mr Tanner's evidence. Mr Tanner produced all his notes. Mr Roe came along. He had represented the union. He had recourse to his notes - didn't produce them. And he said he had extensive notes. So we can assume that the production of those notes would not have assisted in resolving any controversy as to the mutual intention of the parties.

PN342

And Mr Acton was present. He also represented the union. He was available to give evidence. Mr Bower gave evidence of his availability. He wasn't called. We can assume that Mr Acton's evidence would not have assisted in resolving any controversy as to the mutual intention of the parties. In our respectful submission it is entirely open to his Honour in the proceedings below to find that Mr Tanner's evidence was to be accepted and Mr Roe's to be rejected against that background applying legal principle. His Honour didn't. His Honour said well, maybe they acted from different views. I'm going to go back to the documents and resolve this controversy having regard to the documents.

PN343

And he goes back to the agreed document and to Mr Tanner's notes leading to him drafting the agreed document.

PN344

JUSTICE GIUDICE: Is this the material in paragraphs 11 of the second decision, is it?

PN345

MR HATCHER: Yes, your Honour. Exactly that.

PN346

JUSTICE GIUDICE: Yes.

PN347

MR HATCHER: Particularly 12. ASC rejected any notion that they should be bound. It's reported in his notes of a meeting. Mr Tanner's notes record that at the meeting on 3 March 1989.

PN348

Mr Roe stated ADSTE's desire, ASC rejected this.

PN349

They're notes of the meeting. Now, against that background to suggest that what they did was adopt the Metal Industry Award as their award.

PN350

DEPUTY PRESIDENT IVES: It seems to me, though, Mr Hatcher, that it still was something of a problem I feel. I mean, they dealt with clause 7, or Mr Roe dealt with clause 7. They then dealt with issues that arose, which was the issue of the use of the word "can" as I recall.

PN351

MR HATCHER: Yes.

PN352

DEPUTY PRESIDENT IVES: And then they dealt with the particular sentence that the Deputy President had an issue with. Those two things were dealt with in a way that seemed to be accepted by all of the parties. What remained was then adopted by Mr Tanner and what remained was the section that says, among other things of course, that employees covered by this award shall not be less favourable than those conditions - - -

PN353

MR HATCHER: It didn't say that at all, your Honour. It didn't say that at all.

PN354

DEPUTY PRESIDENT IVES:

PN355

Conditions of employment to apply to any employees covered by this award shall not be less favourable than those prescribed to the appropriate classifications under the Metal Industry Award.

PN356

MR HATCHER: With respect, your Honour, it didn't say that. Your Honour has done, as our learned friends continually do, omitted some words and that is not an appropriate approach to interpretation. There are additional words in there generally speaking. Those words must be given some effect.

PN357

DEPUTY PRESIDENT IVES: Yes. I'm just going from what Mr Roe has said as his submissions, Mr Hatcher.

PN358

MR HATCHER: I'm sorry, your Honour.

PN359

DEPUTY PRESIDENT IVES: Mr Roe's submission, and they were the words that I read, were:

PN360

Then clause 7 deals with the conditions of employment and that clause says that the conditions of employment to apply to the employees covered by this award shall not be less favourable than those prescribed for the appropriate classifications under the Metal Industry Award.

PN361

That was Mr Roe's submission. That remained untouched at the end of the interplay about the use of the word "can" and the deletion of the sentence the Deputy President had a problem with. And Mr Tanner then adopted that submission. It seems to me that in doing so Mr Tanner adopted that part of the submission that I've just read to you, do you not?

PN362

MR HATCHER: Your Honour, he adopted it in a context. He adopted it in the context of Mr Roe saying look, this was what we were driving at. He's not saying these are the words of the clause. The words of the clause are there to do that task.

PN363

DEPUTY PRESIDENT IVES: Yes.

PN364

MR HATCHER: He's giving a general explanation to the tribunal of that which the parties were, generally speaking, aiming to achieve. He's not substituting the provision and he's addressing a clause that the parties have agreed upon which does something, which says something. And what it says is not, strictly speaking, a reflection of what Mr Roe is submitting. No one takes exception to it because everyone knows what they mean. Everyone knows what they're talking about generally. So to adopt the approach, with respect, that your Honour proposed, it would be the ultimate gotcha submission in industrial relations where you agree on a clause, and often enough as one understands from one's experience in this jurisdiction someone else is sent along to just put it through before the Commission and try and satisfy the Commission that the Commission's principles are being satisfied.

PN365

MR PEARCE: But that didn't happen here.

PN366

MR HATCHER: I don't suggest it did happen here. Clearly the evidence is that these people were the people who had negotiated the award. But often enough that's what happens. If the principle of interpretation is to be applied that you disregard the words that are being addressed and simply have regard to the submission that's put to interpret the clause, for a start you couldn't have regard to any award. The award wouldn't be the instrument, it would be the words in the submission. It would be the transcript. That clearly can't be right. It's the words that reflect the parties' intention.

PN367

He's giving a general explanation to satisfy the Commission as to the way in which it came in, but the words reflect the agreement, the agreed provision. And those words do not reflect when one addresses specifically what is now put by what Mr Roe said. They simply don't reflect. That's not to say that Mr Roe was intending to be deceitful at the time. He's just there putting through a consent award. And Mr Tanner doesn't have his mind directed to what might be submitted in 17 years time about the way the clause operates.

PN368

All Mr Tanner's doing is saying we agreed on this award. He says we've agreed on it, we agree on it. That's all that's going on.

PN369

DEPUTY PRESIDENT IVES: Well, except in a context that there have been a number of other issues raised by the parties, specifically by the Deputy President about the meaning of particular parts of that same clause.

PN370

MR HATCHER: Yes, your Honour. I'm sorry, your Honour, I don't mean to interrupt.

PN371

DEPUTY PRESIDENT IVES: No, that's fine.

PN372

MR HATCHER: But you see, what Keogh DP said is I'm not happy making that because I think it has this effect. I'm not happy making your agreed award because I think it might have this effect. All you're saying really, isn't it, is that's your intention and if it's just your intention it's sufficient that it's expressed in transcript, is it not? Mr Tanner says yes, precisely. So long as everyone knows what we mean. We're not trying to put a paid rates award in. We're only trying to put a minimum rates award in. So long as everyone understands what we're trying to do with this minimum rates award that's fine. And our friend said well, you're not allowed to have regard to the expressed intention.

PN373

JUSTICE GIUDICE: But Mr Hatcher, it was your client that said the clause was ambiguous and uncertain, wasn't it?

PN374

MR HATCHER: It was. It was, your Honour.

PN375

JUSTICE GIUDICE: I mean, you're either suggesting there was no ambiguity at the moment, I apprehend.

PN376

MR HATCHER: Well, it's an interesting series of events.

PN377

JUSTICE GIUDICE: Depending on where you are in the argument, I suppose.

PN378

MR HATCHER: Yes. You see, where our client said there's an ambiguity is because the union are agitating a claim that their members are entitled to overtime. And our client says well, that was never the intention of the award. The union says well, this is a tenable interpretation. Our client says well, you say it's tenable, we say it's not, we'll put it before the Commission, the Commission can decide whether it's available or not. And it's put by our client before his Honour:

PN379

Your Honour may well find, and in fact your Honour did in an earlier case -

PN380

And there's a reference to some Carter Holt Harvey case:

PN381

- your Honour may find that there is no ambiguity or uncertainty, that the clause is clear and it's the construction we urge in which case your Honour would be bound to dismiss the application.

PN382

His Honour comes to a different conclusion all together. His Honour says there is uncertainty, but it's uncertainty as to whether this is just an expression of the intention, or whether it is conferring an award entitlement to particular provisions. And he resolves that by the variation he makes.

PN383

JUSTICE GIUDICE: That's the problem with material and notes of meeting and so on. I suppose we've all had experiences where the parties have changed their position for whatever reason.

PN384

MR HATCHER: Quite, your Honour.

PN385

JUSTICE GIUDICE: Or they've been content they have particular wording adopted because it represents some sort of compromise which actually puts off having to make a firm agreement.

PN386

MR HATCHER: Yes.

PN387

JUSTICE GIUDICE: There is quite a bit of ambiguity in the material about these negotiations, speaking generally. So I suppose that's why we're rather pressing on this issue. But just looking at the words of the provision without any reference to other material, might it be said that the reference to the use of the term "general" is to indicate that but for the identified matters the terms of the award will be complied with?

PN388

MR HATCHER: Well, your Honour, that was the interpretation that was urged by our opponents.

PN389

JUSTICE GIUDICE: Yes. But if you just forget about all the extrinsic material, is that open?

PN390

MR HATCHER: Well, your Honour, with respect one is not entitled to regard as extrinsic the award itself. The clause that appears in an award and the terms of the award must be had regard to.

PN391

JUSTICE GIUDICE: I understand.

PN392

MR HATCHER: And it's an award that throughout notes that the ASC is not going to be bound, is not bound to the Metal Industry Award, is not going to be bound by any other award and, notwithstanding the minimum rates expressed in the award, other rates are going to be paid. And generally speaking conditions are not less favourable. Some may be different, indicative of those that may be different are those below.

PN393

JUSTICE GIUDICE: Yes.

PN394

MR HATCHER: May it please the Commission. In our respectful submission leave to appeal ought be denied. We are here dealing with a notice of appeal that does not reflect the appeal that's been advanced and that ought not be permitted. There's no application for leave to amend and on the basis upon which we rose in the first instance the appeal simply doesn't raise any question which would warrant leave. If leave were to be granted, in our respectful submission, there is no error that's identified in the approach of the learned Senior Deputy President. There may be discomfort with the outcome, there may be complaint about the outcome and one understands that it often the result of litigation, but they need to identify appellable error.

PN395

And his Honour dealt with the authorities as they were put before him and properly put before him by the parties. He firstly determined whether objectively he found ambiguity. He did find ambiguity or uncertainty. Now, our friends in their submission say that unless that's not a bona fide exercise then that's sufficient and they don't challenge that his Honour embarked upon a bona fide exercise in determining that. It appears in section C of our learned friend's submissions. Once he finds that ambiguity or uncertainty he has a discretion whether he will vary it and, if so, as a guided discretion he ought be guided in determining whether or not to vary it and, if so, how by the mutual intention of the parties at the time, objectively ascertained.

PN396

They're the authorities. That was what was put before him. That's what he sought to do. And no one has, or could, submit that he erred in a House v King sense in the way he exercised that discretion. May it please the Commission.

PN397

MR PEARCE: Dealing with the last matter, this is undoubtedly House v King, but as far as I know, as far as I recall, things have come in under House v King including applying non-principles, failing to have regard to relevant matters and they're all the submissions that we've made. And we've made the submissions on the basis that it's a House v King type of appeal. Can I deal with the question of the award. Can I remind the members of the Commission that it's at 241 of the appeal book and my learned friend has said well, you weren't provided that other awards wouldn't prevail, or wouldn't apply, sorry. But in clause 3(b) that is so. It says there. And then it says:

PN398

Except where otherwise expressly provided in this award.

PN399

So there's no assistance gained from my learned friend from that provision. It's a provision, of course, that the Commission will have regard to because the award has to be construed in the context as a whole. And while I'm on that, your Honour, the Commission will also have regard to the title of clause 7 which is general conditions of employment. Now, one would reasonably assume that the word "general" in the title is used in the same way in the clause. And the Commission wouldn't say these broad conditions of employment. General conditions of employment has a historical meaning, meaning conditions that are non-salary based. And that's a relevant matter in the context of the award.

PN400

But the title of that clause says general conditions of employment. The final thing I want to deal with, and it's not particularly, if there would be any doubt about this question of the evidence, of no evidence being given by Mr Tanner, can I say that on 30 January 2006 the AMWU filed their submissions and they're at AB178. And some week or so after, on 8 February, Mr Tanner filed his affidavit in reply and that's at AB106. And there can be no doubt from the submissions filed by the AMWU before that affidavit in reply was filed that the AMWU were relying on the transcript and what was said before Keogh DP. They are the submissions we make. There was, I suppose, there was a submission about Steve Acton not being called.

PN401

I don't know where Steve Acton is now. I know he's no longer the secretary, or the assistant secretary, of the AMWU. And my learned friend said well - which is impermissible - he said well, his view was that they wanted to be paid overtime. We'd be delighted to rely on the history because the history was that they had been paid overtime for 15 years, but it's not, in my respectful submission, a matter for the Commission to have regard to in construing the award.

PN402

JUSTICE GIUDICE: In construing the award?

PN403

MR PEARCE: Yes.

PN404

JUSTICE GIUDICE: But you say that in the exercise of discretion if there'd be an ambiguity practice should be taken into account?

PN405

MR PEARCE: Yes, it can be taken into account.

PN406

JUSTICE GIUDICE: You've referred to that in paragraph 14 of your grounds, or ground 14. Was there evident about other conditions as to whether the award was applied in other respects?

PN407

MR PEARCE: I'm told, and perhaps this evidence should be provided to the Commission and a short note can be addressed if that's convenient, but I'm told things like shift penalties, call back, were applied.

PN408

JUSTICE GIUDICE: Well, that question really is whether all of the relevant provisions were applied.

PN409

MR PEARCE: Well, the answer is there's no - I don't think it's a question of what might or might not be relevant was addressed of the provisions in the proceedings, that there was evidence that other provisions had been - - -

PN410

JUSTICE GIUDICE: Well, I take it the AMWU relied on some provisions.

PN411

MR PEARCE: Yes.

PN412

JUSTICE GIUDICE: And one would assume it relied on all the provisions that they could find.

PN413

MR PEARCE: Did your Honour want me to take out that evidence and provide it to the Commission?

PN414

JUSTICE GIUDICE: I'm not sure whether it's ever going to be relevant, but perhaps we should know if there's other material that might be relevant to that ground 14. Mr Hatcher, what's your attitude to that?

PN415

MR HATCHER: Your Honour, there is other material that is relevant. Firstly my friend says overtime was paid. Certainly overtime was paid, but not to everyone. And that was the point. It wasn't paid by reason of an award obligation. Mr Tanner's notes have a curious entry that need to discuss with ADSTE - I can hand it up, but it's to this effect, need to discuss with ADSTE three employees on overtime or three employees eligible for overtime, rest for scheduled leave. That's my best recollection of the note. He's asked about that. He said he didn't recall that there were any ADSTE members who were in the group, as your Honour understands large operations at that time, there were salary groups and depending upon which salary group you were in you would either receive overtime or you would be on an annual salary.

PN416

And Mr Tanner's recollection at that stage was that they were all on annual salary, but there may have been some who were in the mechanical drafting who were in the groups where they would, under the company's procedures, be receiving overtime. And Mr Roe's evidence was he could recall people after 1992 receiving overtime, not after 1989. The other thing is the transcript that I handed up earlier, MFI1 or 11, depending on where you read it, dealt with an application in 1995 in relation to salaries. In that transcript Mr Cameron, I think it was, describes the operation of clause 7 as being to generally confer benefits to ensure that employees wouldn't be worse off essentially.

PN417

Mr Acton appears in those proceedings, and this is a reason I don't wish to draw to much upon it, does no more than Mr Tanner did back in 1989. That is he accepts that that's the way the clause operated.

PN418

JUSTICE GIUDICE: Right. I'm not sure whether i see the relevance of this, but I think we would be assisted if there's anything other than what you've drawn our attention to, Mr Hatcher and Mr Pearce, you can have a short note about it so that we know what all the evidence was about.

PN419

MR PEARCE: Close of business tomorrow, your Honour?

PN420

JUSTICE GIUDICE: We couldn't complain about that. All right. Well, thank you gentlemen. I should mention something that has come to me during the submissions. The Submarine Corporation was a client of mine at one stage and I must say I don't have any recollection of any issue like this arising, but I thought I should mention it.

PN421

MR PEARCE: Nothing arising about that.

PN422

JUSTICE GIUDICE: Yes.

PN423

MR HATCHER: I suspect it would have been a long time ago.

PN424

JUSTICE GIUDICE: I can't even remember when, but I do remember going to Adelaide. Well, thank you gentlemen for your submissions. They have been very helpful. It will be necessary to reserve our decision and we shall now adjourn.

<ADJOURNED INDEFINITELY [12.59PM]