C2006/2798, Transcript of Proceedings [2006] AIRCTrans 909 (26 July 2006)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 15389-1

JUSTICE GIUDICE, PRESIDENT

C2006/2798

APPEAL BY BRINKS AUSTRALIA PTY LTD
s.120 - Appeal to Full Bench
(C2006/2798)

MELBOURNE

9.36AM, TUESDAY, 11 JULY 2006

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA VIDEO CONFERENCE AND RECORDED IN MELBOURNE

PN1

MR J MURPHY: I appear on behalf of the appellant, Brinks Australia.

PN2

MR S MOORE: I appear on behalf of the Transport Workers' Union of Australia.

PN3

JUSTICE GIUDICE: Thank you. Mr Murphy.

PN4

MR MURPHY: Thank you, your Honour. This is an appeal or it's more correctly an application for a stay order in relation to an appeal against a decision, an ex tempore decision of his Honour Senior Deputy President Lacy which was made on 6 July. That was last Thursday. Does your Honour have a copy of the notice of appeal that was filed yesterday?

PN5

JUSTICE GIUDICE: Yes, I do, thanks, Mr Murphy.

PN6

MR MURPHY: Your Honour, also an appeal book has been prepared, but not yet filed.

PN7

JUSTICE GIUDICE: Well, what I have at the moment is a decision of the Senior Deputy President's on 5 July. That is PR973182 and I also have a copy of a transcript of 6 July from paragraphs 395 to 666 and I also have a copy of what I believe to be the agreement. That is the Brinks Australia Pty Ltd Tullamarine Ground Armoured Certified Agreement 2006. My associate also has the file, I think. Apparently the file has been taken from Senior Deputy President Lacy. I haven't looked at it, but it's available, so if there are documents in there that I need to refer to, you can tell me about that.

PN8

MR MURPHY: That may be the case, your Honour, and there's also a number of authorities that I would be wanting to take your Honour to.

PN9

JUSTICE GIUDICE: Yes, we have those.

PN10

MR MURPHY: The situation is that the Transport Workers Union in the context of dispute proceedings concerning competing claims as to quantum of redundancy pay applied for a direction in the nature of an interlocutory injunction restraining my client from terminating employees whose jobs have been made redundant. Now, the application as pressed by the union was said to be pursuant to section 111(1)(c) of the Act which empowers the Commission to give directions.

PN11

Now, our position is that an order, if that's what it is, in the nature of an interlocutory injunction is clearly not in the nature of a direction as contemplated in 111(1)(c) which we would put relates to procedural matters and his Honour appears not to have accepted that that was an appropriate source of power. If I could take your Honour to the transcript of 6 July at paragraph number 658 where his Honour commences to give this interlocutory decision, his Honour appears to dispose of the argument based upon 111(1)(c), but at paragraph number 659 refers to 111(1)(p) which is the power to make interim decisions and his Honour seems to regard that as being the appropriate source of power to grant effectively what the union was seeking. His Honour says in the previous paragraph, paragraph number 658, that and this is the second sentence which I read:

PN12

It is not disputed that there is a dispute over the application of the Brinks Australia certified agreement.

PN13

Now, that, of course, brings section 170LW of the pre-reform Act into play. However, we say that proposition of his Honour's is clearly wrong. There is no dispute as to the application of the certified agreement. My client accepts that the employees have been made redundant, their jobs are redundant and clause 15 of the relevant agreement which your Honour might see is entitled redundancy, my client accepts that that provision applies to this situation.

PN14

The question that's being agitated is what does flow from that? What does that provision require of my client or, indeed, of the union, so we say that his Honour has made a fundamental error in stating that there is no dispute, that there is a dispute over the application of the agreement, that the correct position is that there is no dispute over the application of the agreement, the agreement applies and therefore powers that derive from section 170LW are simply unavailable.

PN15

JUSTICE GIUDICE: You say clause 15 is being followed?

PN16

MR MURPHY: Well, there's an argument as to whether it's being followed, but we say it applies. The argument is what obligations flow from clause 15. My client's position is that it is complying with its obligations under that clause. The union as I understand it disputes that position and if that we so, then this is not an argument or a dispute over the application of the agreement. It's in effect a question of interpretation and enforcement, both matters clearly beyond power of the Commission in my respectful submission and that is effectively what the proceedings came down to, an argument as to the obligations that flow from that particular provision which in effect his Honour embarked upon an exercise of interpreting and enforcing.

PN17

His Honour then over the page at paragraph numbers 660 to 661 makes a finding that there is power within the Commission to make an interim decision or at least the power of the Commission to make an interim decision, permits the making of a declaration and that's how his Honour formulated it. He says:

PN18

The power to make interim decisions, however, permits a declaration, that is that the proposed termination of employment by Brinks is contrary to the terms and spirit of the agreement.

PN19

He then reformulates that in the next paragraph and says:

PN20

It permits me to make a declaration that it is contrary to the terms and spirit of the agreement for Brinks to terminate the employment of the relevant class of employees before a redundancy package has been settled.

PN21

Now, we say with the greatest of respect that the Commission does not have the power to make such a declaration and certainly that power does not derive from either the preservation of section 170LW in relation to pre-reform certified agreements nor from section 111(1)(p) of the current legislation. Now, in relation to the question of the stay, on its face the declaration that his Honour has made purports to restrain my client from terminating employees who are redundant and there's no question about this being a genuine redundancy situation. That as I understand is not disputed by the union, the facts are not in dispute.

PN22

My client's major contract for the cartage of cash with the National Australia Bank has been taken from it and awarded to a competitor and that has left currently a situation where it cannot gainfully employ the vast majority of its current workforce, so there's no question about this being a genuine redundancy situation. The question is what obligations arise as a result of that? Now, where his Honour made a fundamental error is in apparently coming to the view that there was some need to injunct my client on an interlocutory basis in order to preserve the entitlement of the affected employees and that's clearly an erroneous view.

PN23

If there are obligations under the current agreement which bind my client, those obligations will be binding whether or not the employees have been retrenched. In other words, the act of retrenching the employees today, if that was to occur, will not adversely affect their rights under this agreement, so the basis upon or the perceived need for an interlocutory injunction was completely misconceived and your Honour will see even though we accept his Honour made this decision on an ex tempore basis and we don't have the benefit of full reasons and reasoning, your Honour will see that nowhere in this short extract from the transcript does his Honour give any consideration to the normal requirements that are associated with the granting of interlocutory injunctive relief.

PN24

Now, there has been some consideration in the Commission as to the Commission's power to grant such relief and can I refer your Honour to a decision of his Honour Vice President Lawler in the matter of the Community, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Telstra. This is to be found at print PR933892, a decision of 2 July 2003. Does your Honour have that?

PN25

JUSTICE GIUDICE: Yes. Thank you. There was an appeal from this decision, wasn't there?

PN26

MR MURPHY: There was and I intend to take your Honour to that appeal shortly, but dealing with the decision at first instance if I may, his Honour - your Honour is familiar with this, so I won't take your Honour to it at great length, but from paragraph 38 of his Honour's decision, he gives consideration to section 170LW as an independent source of power and there's consideration there of the High Court in the Private Arbitration case and powers of the Commission in relation to the exercise of what we would submit is what's being sought to be exercised in this case and that is the power of private arbitration and then his Honour deals particularly with the Commission's power to restrain termination of employment of employees pending arbitration of a dispute and that commences at paragraph 85 and your Honour will recall that the issue in this case was whether or not there was in fact redundancies to which the redundancy provision of the relevant agreement applied, so it's quite a different dispute.

PN27

This was clearly a section 170LW situation and in the context of that type of dispute, there was certainly some utility in the claim for interlocutory injunctive relief because this was a case where rights could have been permanently affected by putting into place the terminations, but quite a different scenario than the one that was before his Honour Senior Deputy President Lacy and his Honour, the Vice President, gives consideration to this power for interlocutory injunctive relief between paragraphs 85 and 89 and comes to the view that there is such a power in the Commission, but your Honour might note at paragraph 88, his Honour refers to the well known tests set out in Castlemaine Toohey in South Australia for the granting of injunctive relief.

PN28

The first is that there is a serious question to be tried. Well, in relation to that, we say there is not a serious question to be tried in the context of a dispute said to be about the application of the agreement because we concede the agreement applies. There may be a serious issue as to what flows from that situation, what obligations arise from the agreement, but that is not a serious question that this Commission can deal with and secondly there is the question of irreparable injury for which damages will not be an adequate compensation.

PN29

Now, as I've indicated and his Honour doesn't appear to have given any or at least adequate consideration to this, no injury flows from a decision to refrain from injuncting my client because what does flow is that the employees will be terminated and their rights under the enterprise agreement are preserved and enforceable, whatever those rights may be, so this is not a question where there can be said to be any irreparable injury which damages and when I say damages, you can translate that in the context of this case to rights to monetary compensation under the agreement which will be foregone unless the injunction is granted.

PN30

This is not such a case and his Honour with respect gave no consideration of that important issue, nor did he to the related issue, the third matter of the balance of convenience. There is no inconvenience that flows to the members of the union in the sense of loss of any rights that they may otherwise have, whereas my client has been required on the face of this declaration to keep in its employ and to pay people for whom it has no useful work and your Honour might note that that seems to have been recognised in paragraph number 662 of the transcript where his Honour contemplates that:

PN31

For the employees for whom there is no work, they are to remain at home pending the determination of the matter.

PN32

Now, that simply means that my client is required to continue paying people at considerable cost for whom it has no useful work, so none of those tests were properly addressed by his Honour and your Honour can see I think from the brief outline of the matter that I've given that had they been so addressed, they would have militated against the granting of any relief in the nature of interlocutory injunction rather than militated in favour of such, then, importantly, his Honour Vice President Lawler in paragraph 89 says this:

PN33

Moreover, an order in the nature of an injunction ought not be made unless an enforceable undertaking as to damages is proffered by the applicant.

PN34

And he gives a reference to an authority for that and without reading the rest of that, in this situation, no such undertaking as to damages has been proffered, nor required and your Honour will well know that in the ordinary course of litigation, an applicant for interlocutory injunctive relief is required to give an undertaking as to damages to protect its position. Now, that is not a feature of this case and that means that my client is exposed to real and considerable damages by being required to continue to pay employees for whom it has no work if at the end of the day it is found that it ought not to have been restrained from terminating those employees.

PN35

JUSTICE GIUDICE: Mr Byrnes, could I just ask you a couple of questions about these principles? Firstly, was it submitted to the Senior Deputy President that these were the relevant principles he ought to take into account?

PN36

MR MURPHY: I would need to check the transcript on that. As I recall, this authority was before his Honour. I certainly understand that to have been the case.

PN37

JUSTICE GIUDICE: Yes, I see. Could I ask another question? Is there any other authority in the Commission apart from this decision of the Vice President's that deals with these principles in the context of an application for some kind of interim order?

PN38

MR MURPHY: Well, there's certainly the consideration of this decision by the Full Bench of which your Honour was the presiding member and could I take your Honour to that?

PN39

JUSTICE GIUDICE: I am sorry, I didn't mean to cut you off. You were making another submission, I think, when I asked you that question.

PN40

MR MURPHY: I've dealt with the question of the undertaking as to damages.

PN41

JUSTICE GIUDICE: Yes. Thank you.

PN42

MR MURPHY: And our position is clearly that no interlocutory injunctive relief of the sort that his Honour purported to grant in this case should be granted without such an undertaking, for obvious reasons. We are now exposed to what will be irrecoverable costs if at the end of the day our appeal is upheld.

PN43

JUSTICE GIUDICE: Has there ever been a case in which the Commission has sought an undertaking as to damages?

PN44

MR MURPHY: I cannot recall a case that I've been involved in where a union has ever agreed to one and in some matters, that has brought the thing to a sudden end.

PN45

JUSTICE GIUDICE: I see.

PN46

MR MURPHY: And we move on then from the question of interlocutory relief to final relief, but certainly his Honour Vice President Lawler seemed to be quite comfortable with the notion that such an undertaking is appropriate. In the appeal decision of 18 November to be found in print PR940569, there was consideration given to this question of the power to restrain termination of employment and that commences from paragraph 43. Without reading it, I think it's fair to say that the Full Bench disagreed with his Honour's approach in relation to there being an unrestrained power to grant interlocutory injunctive relief preventing terminations of employment. In the context of the particular agreement that was before the Commission in that matter and the Commission at paragraph 50 referred to clause 17.3 of that agreement which provided that:

PN47

While any dispute is being resolved, any process shall continue without interruption.

PN48

And found that as a result of that, the employer in that case should not have been restrained from terminating the employment of the employees, as I read the decision. The conclusions are there set out at paragraph 51.

PN49

JUSTICE GIUDICE: Well, the implication of that, re-reading it fairly quickly, Mr Byrnes, is that the Full Bench was of the view that there might be such a power consistently with the Commission's powers under section 111, but the question in that case was whether the terms of the agreement were such as to preclude such a power being exercisable.

PN50

MR MURPHY: That seems to be the case. There doesn't appear to be any criticism of Vice President Lawler's formulation of the appropriate test by reference to the Castlemaine matter, the High Court case, nor does there seem to be any criticism of his Honour's consideration of the requirement for the proffering of an undertaking as to damages, but the Full Bench parted company with his Honour as it were on the basis of the terms of the particular agreement and we would say that there is provision in this agreement or the agreement under consideration in this case which properly construed should have had similar effect. Can I take you know to that agreement?

PN51

JUSTICE GIUDICE: Just before you do, Mr Murphy, I must apologise. I've been calling you Mr Byrnes. I should make it clear to everybody that I've known Mr Murphy for about 20 years, so I do apologise.

PN52

MR MURPHY: I take no offence at all, your Honour. I've been called much worse things many times. Your Honour, clause 11 of the agreement sets out the dispute settlement procedure and step 5 which seemed to be the part of this procedure that occupied most of the consideration provides that:

PN53

If a matter remains unresolved, it is to be notified to the Commission for the purpose of conciliation, arbitration.

PN54

Then importantly in 11.2 it says:

PN55

Pending the resolution of any matter in accordance with the above procedure, work shall continue without disruption except in circumstances where the employees have genuine concerns for their health and safety. The circumstances which applied immediately prior to the dispute arising shall apply until final resolution of the matter.

PN56

Now, we would say that that properly interpreted means that the right of the employer or the rights of the employer as they existed prior to the dispute arising shall continue to be rights of the employer until final resolution, in much the same way as clause 17.3 of the Telstra agreement applied in that matter as considered by the Full Bench in the passages I have taken your Honour to and then also, importantly, 11.3 says:

PN57

Nothing in this agreement in any way limits or detracts from the parties' rights at law, whether under common law or statute.

PN58

Now, those two provisions taken together make it clear in my submission that to the extent that the power of arbitration might be thought to arise from this agreement, it was a qualified power, qualified in such a way as to not permit the granting of interlocutory injunctive relief in the manner purported to be granted by his Honour, so that is essentially the nature of the appeal. We say that this is an appropriate case for the stay because hopefully I've persuaded your Honour that the appeal is strongly arguable.

PN59

The next consideration is the balance of convenience and that clearly weighs in favour of my client and as I've indicated on the record and relevant to the question of a stay of his Honour's order, there can be no disadvantage to the employees in relation to their rights under the certified agreement by putting into effect the retrenchments that my client ultimately has no option but to put into effect. Their rights are not affected in any way, whereas my client's rights are severely affected if the stay is not granted because as I've indicated, we are obliged on the face of it to continue paying people for whom we have no work which payments will most likely be unrecoverable, so for those reasons, your Honour, we say this is an appropriate case for the granting of a stay, the effect of which would relieve us of the obligation of being required to maintain the employment of redundant employees until such time as the dispute, whatever the nature of that dispute ultimately is found to be, is resolved one way or the other. Those are our submissions, may it please.

PN60

JUSTICE GIUDICE: Mr Murphy, there was reference in the transcript to conciliation proceedings last Saturday. What was the result of those?

PN61

MR MURPHY: As I understand, those proceedings did not go ahead.

PN62

JUSTICE GIUDICE: Why was that?

PN63

MR MURPHY: My client as I recall now, your Honour, on Friday I believe wrote to his Honour seeking that his Honour disqualify himself from further dealing with the dispute and as I recall, his Honour communicated to my instructing solicitors that he would not be accepting that application, he would not be disqualifying himself and then as I understand the position, my client did not attend in Melbourne on the Saturday when it was set down for conciliation.

PN64

JUSTICE GIUDICE: Well, what is the position of your client in relation to the dispute, for a moment leaving aside the legal characterisation of that dispute, how is that to be resolved in your client's view?

PN65

MR MURPHY: In accordance with the terms of the enterprise agreement and that is that my client is prepared to honour its obligations and that is negotiate with the union on a redundancy package based on transport industry standards at the time of the redundancy. Now, there is a question about what transport industry standards means, what flows from that expression in the agreement and that was a matter that was debated before his Honour and his Honour in what appears to be an interlocutory decision of 5 July expressed the view that transport industry standards means three weeks per year of service. Now, my client strongly disagrees with that and did so in the proceedings before his Honour, but as we understand the obligation in the agreement, regardless of what transport industry standards might mean, the obligation is to negotiate with the union on a redundancy package and my client is willing to enter into those negotiations.

PN66

JUSTICE GIUDICE: Looking at paragraph 17 of the Senior Deputy President's decision of 5 July, the one you've just been referring to, the Senior Deputy President there refers to convening a conciliation conference. That never occurred, did it?

PN67

MR MURPHY: No, it didn't, the conference didn't take place. As I understand, that was what was anticipated would happen on Saturday, last Saturday, but the difficulty my client faces in relation to involving itself in conciliation with his Honour is that in effect, his Honour has expressed a view about a critical element of the provision that binds my client, that is the meaning of transport industry standards we say in effect disqualifies his Honour from continuing with that conciliation or ultimate arbitration if indeed there is an arbitral power available and we don't concede that at the moment. His Honour has effectively pre-judged the position on a critical aspect of the clause of the agreement.

PN68

JUSTICE GIUDICE: But your client participated in the proceedings which led to the decision of 5 July, did it not?

PN69

MR MURPHY: It did, yes.

PN70

JUSTICE GIUDICE: Did it say that the Senior Deputy President had no power or jurisdiction to determine that issue?

PN71

MR MURPHY: I believe so. I wasn't involved in the proceedings, your Honour. I only came into the proceedings relatively recently, but my understanding is Mr Diamond who appeared at that stage of the proceedings argued that there was no power under the current Act for his Honour to arbitrate.

PN72

JUSTICE GIUDICE: I would like you to confirm that if you could, because it may be mentioned in the Senior Deputy President's decision, but I can't see it or I didn't notice it.

PN73

MR MURPHY: Yes, I am having my instructing solicitor attempt to find that at the moment.

PN74

JUSTICE GIUDICE: Well, I suppose the only other question is whether there would be any point in making another member of the Commission available to assist the parties, but I won't pursue that at the moment because - - -

PN75

MR MURPHY: I would need to get instructions, your Honour.

PN76

JUSTICE GIUDICE: Yes. I think it's probably better to hear from Mr Moore, anyway. I might be getting a bit ahead of myself. Is that all, Mr Murphy?

PN77

MR MURPHY: Yes, your Honour, subject to finding that passage in the transcript that your Honour requested.

PN78

JUSTICE GIUDICE: Yes, thanks very much. Yes, Mr Moore.

PN79

MR MOORE: Thank you, your Honour. Before addressing the two limbs of the stay tests, if I might just deal with a few matters which your Honour raised with my learned friend. Your Honour asked my learned friend about the conference or conciliation referred to in the last paragraph of Senior Deputy President Lacy's decision of 5 July and whether or not that conference or conciliation occurred. That did occur on the 6th, that is the next day. If one looks at the transcript, your Honour, you'll see that the parties early on in the piece broke into conference and then resumed on the record, so that is the chronology there.

PN80

I do take issue with my learned friend's characterisation that the further conciliation conference which was then listed for Saturday morning did not go ahead. The union and its representatives certainly attended the offices of the Commission on that day, as did Senior Deputy President Lacy and the company for reasons known to it did not attend. Now, the other issue raised by your Honour was the question of whether there was a challenge to jurisdiction in the submissions, the hearings leading up to the decision of 5 July.

PN81

I am instructed that - well, I withdraw that. If one looks at the decision itself, there is recorded no suggestion of there being a challenge to jurisdiction. I am instructed that Mr Diamond, the company's then representative, made a submission to the effect that the terms of the agreement did not extend to encompass the exercise of powers of arbitration, but that no formal jurisdictional objection if you like was taken, your Honour, and that is reflected in the fact that his Honour in his reasons for decision of 5 July does not address jurisdiction and I note, your Honour, that there's no appeal lodged in respect of that decision.

PN82

Your Honour, if I might return and address you on the approach to the grant of the stay, dealing with the question firstly of whether there's a sufficiently arguable case that leave to appeal would be granted and that the appeal would succeed, can I take a foundational point, your Honour, which is to say that it's not sufficiently arguable that the appeal is competent. If I can take your Honour through the Act for the purposes of that submission, your Honour will see from the notice of appeal that it's filed pursuant to section 120 of the Act and the types of matters, I use that term loosely, from which appeal may be taken are set out in subsection 1 of section 120 and your Honour will see from a cursory examination that subparagraphs (a) through to (e) of section 120(1) have no application or can't conceivably have application here.

PN83

His Honour has not made an order or an award and none of the other paragraphs apply, so in order for the appellant to - for the appeal to be competent, the only potential ground it can move under, if you like, your Honour, is subparagraph (f) of that section which raises for consideration whether or not the decision of his Honour of 6 July was a decision that he had jurisdiction. If it is not such a decision, the appeal is incompetent and we say by looking at the reasons for decision and indeed the whole of the transcript, your Honour can only come to the view that this was not a decision by his Honour, Senior Deputy President Lacy, that he had jurisdiction. It's a decision - I withdraw that. If one looks at paragraph 658 of the transcript, you'll see on the fifth line the sentence:

PN84

It's not disputed that there is a dispute over the application of the relevant agreement.

PN85

And your Honour will be aware that those words, dispute over the application of an agreement, echo the words or are the words in section 170LW. The rest of his Honour's reasons go to questions of power and an assessment which in substance we say goes to the orthodox considerations a tribunal or court is to have regard to when considering an application for interlocutory relief. Now, having reviewed the transcript, your Honour, nowhere on 6 July is an objection to jurisdiction taken. The highest it gets, your Honour, in my respectful submission is the following extract which I might take your Honour to. This is at paragraph 533 where Mr Diamond summarises the argument that he there put. At about seven lines down he says this:

PN86

So we say two things about the primary argument of the union in this case. The preservation of 170LW as ...(reads)... of these employees tomorrow is not a procedural matter so there is no power in this tribunal to restrain.

PN87

That's a submission as to power, then he goes on at 534:

PN88

Our secondary submission is even if we were wrong about that in exercise of its power, if it had such power ...(reads)... to your Honour, there is nothing in those processes which can restrain Brinks from going ahead tomorrow.

PN89

Now, that's the company's submission, your Honour. Now, that second submission we say is equally not a submission as to jurisdiction. To move into the Telstra decisions and as identified by the Full Bench, the question which was identified there was whether the exercise of power to grant interim relief there was consistent with the terms of the agreement. That's a question for judgment in each case and that was a very broad submission, with respect to Mr Diamond, that was made on that ground, but we say it doesn't go to jurisdiction and no doubt my friend will correct me otherwise, but I've not been able to identify anywhere an objection to jurisdiction taken either on that day or 5 July.

PN90

JUSTICE GIUDICE: Well, what he does say, though, is that if you look at clause 15, there's no power.

PN91

MR MOORE: I am sorry, where was that, your Honour?

PN92

JUSTICE GIUDICE: Mr Diamond is a lawyer, I think, so we can't be too generous, but on the other hand, he does refer to clause 15 in paragraph 533 which rather suggests he's making a submission based on the absence of anything in clause 15 which would permit the Commission to make the orders sought.

PN93

MR MOORE: Yes, and my response to that, your Honour, is that that is a submission on power and not jurisdiction.

PN94

JUSTICE GIUDICE: Well, I understand that.

PN95

MR MOORE: So, your Honour, that's our first point we make on the first limb of the stay tests. Now, separate to that, if your Honour is otherwise of the view that the appeal - it is sufficiently arguable that the appeal is competent, we say that it isn't sufficiently arguable that leave would ultimately be granted and that the appeal would succeed. Can I deal first with the errors referred to in the notice of appeal and outlined by my learned friend about power?

PN96

Now, your Honour will have noted from the decision below that the learned Senior Deputy President found that he had power either under section 111(1)(p) of the Act as it presently stands or by way of an alternative, if you like, your Honour, under section 111(1)(t) in the pre-reform Act, so for there to be a sufficiently arguable case, the appellant must demonstrate that his Honour is wrong in both camps, that is that neither of those legs offer any support and we say that that's really the longest of bows.

PN97

If one looks at the first bases being 111(1)(p), that is a power to make interim decisions. It's as a matter of common sense in the context of legal processes a decision can be made at an interim level or at a final level and a decision may in substance be by way of declaration and there is nothing inherently contradictory in the notion of there being an interim declaration, so the point we make is that on the terms of the Act, the making by his Honour of a declaration is merely one type of decision which can be made at an interim stage which is what his Honour did.

PN98

JUSTICE GIUDICE: Doesn't 120 distinguish between various instruments?

PN99

MR MOORE: Awards and decisions and so forth, your Honour?

PN100

JUSTICE GIUDICE: Yes.

PN101

MR MOORE: I think it does, although there will no doubt be many cases to come because the provision is amended quite considerably from the old section. For example, your Honour might have in mind subparagraph (c) which is - I am sorry, is your Honour referring to section 111?

PN102

JUSTICE GIUDICE: Well, I was actually trying to look at - I was referring to 120, but I was actually trying to compare the language, an interim decision under 111(1)(p) and then looking at the terms of 120 to see how it deals with the word decision.

PN103

MR MOORE: And it would appear to have in mind, your Honour, the permission of the making of an appeal from certain classes of decisions.

PN104

JUSTICE GIUDICE: Yes.

PN105

MR MOORE: Referable to particular instruments.

PN106

JUSTICE GIUDICE: Yes.

PN107

MR MOORE: Or made under particular provisions. Your Honour, one can understand some sense here why the legislature may not have intended there to be appeals from interim decisions as a matter of good case management. It's well recognised that certain liberality should be given to the trial judge, as it were, in the manner in which the case is managed and dealt with. As a policy viewpoint at the appellate level, there should be some caution exercised in the interference with interim decisions made below.

PN108

JUSTICE GIUDICE: Yes. Nevertheless, the decision in this case is a significant one.

PN109

MR MOORE: Indeed, your Honour. So, your Honour, that's what we say about the first - - -

PN110

JUSTICE GIUDICE: Mr Moore, you're probably coming to this and I should have raised this with Mr Murphy, but it seems to me there's a reasonably strong argument that where the Commission exercises jurisdiction in relation to an agreement certified before 27 March pursuant to 170LW, the post-reform Act is not intended to apply.

PN111

MR MOORE: Yes, and I can take you to that now, your Honour.

PN112

JUSTICE GIUDICE: Yes, schedule 7 I think it is.

PN113

MR MOORE: Yes, schedule 7, clause 2, and, actually, your Honour has raised that at a convenient time for the purposes of my submission because it connects with the alternative head of power that his Honour relied upon which is saying in the alternative if 111(1)(p) doesn't provide me power, section 111(1)(t) of the pre-reform Act, to use your Honour's words, does and if one goes to schedule 7 and clause 2 of schedule 7 which is the first appearing clause in division 1 of part 2, you'll see the provision commences:

PN114

Subject to this schedule, the following provisions of the pre-reform Act continue to apply in relation to a pre-reform certified agreement.

PN115

Which this was obviously, your Honour, and at paragraph (e), section 170LW is identified, then we get to and this is the connection with 111(1)(t), your Honour, is subparagraph (r):

PN116

Any other provision relating to the operation of the provisions mentioned in the preceding paragraphs.

PN117

Now, we say about that, that that by its terms and in its context is clearly a plenary type provision intended to make sure the continued effective operation of the provisions identified in the preceding subparagraphs. It would clearly not be parliament's intention for provisions to be identified and then left in a vacuum in terms of the mechanics of the exercise of various powers and obligations under the sections identified so, for example, if one looks at section 170LW in the pre-reform Act in the preamble of the section, it ends:

PN118

Procedures in a certified agreement -

PN119

et cetera -

PN120

may empower the Commission to do either or both of the following, (a) to settle disputes over the application of the agreement.

PN121

Now, how does one actually - one can well conceive of how the Commission through the exercise of hearing a matter might endeavour to settle a dispute, but to give effect to the settlement of a dispute, it's hardly rocket science to think that settlements are given effect to through orders, directions, decisions and so on and so forth and that's why, your Honour, we say that it's manifest from the terms of paragraph (r) of clause 2.1 of schedule 7 that it's meant to draw with it any provision relating to which would include provisions permitting the giving effect to of the provisions identified above.

PN122

JUSTICE GIUDICE: If that were the case and if this direction were capable of being characterised as a direction under 111(1)(t) of the pre-reform Act and the party wished to pursue an appeal, how would that appeal be brought into effect or is that a matter you're not prepared to chance your arm on?

PN123

MR MOORE: I will approach it with some caution, your Honour.

PN124

JUSTICE GIUDICE: Very prudent.

PN125

MR MOORE: As everything in the Act should be at this juncture, I think. Well, your Honour will get into - that question will raise for consideration potentially a range of complex issues through the Act so, for example, if one wanted to appeal such a direction, one would look to I would imagine section 120 which, for example, at subsection 1(a) or (b) refers to an award or order made by a member of the Commission or a decision of a member of the Commission. Now, the word award is defined elsewhere in the Act to include, as I recall a pre-reform award, the word decision is not defined, your Honour, so it's to be given its ordinary meaning.

PN126

JUSTICE GIUDICE: Yes, very well. Probably it's an issue we maybe don't have to deal with. If your submission about schedule 7 is correct, however, it's going to raise an issue about appeals.

PN127

MR MOORE: Yes.

PN128

JUSTICE GIUDICE: And while your primary submission is the appeal is incompetent, it may be necessary to give attention to that question, anyway, perhaps not today, I don't know.

PN129

MR MOORE: Thank you, your Honour, so just to complete my submissions on this point, going back one step, the onus is on the appellant to establish that there's a sufficiently arguable basis that both sources of power relied upon by the Senior Deputy President were not there. In order for it to sustain its challenges, its asserted errors in its notice of appeal which relate to those questions of power, we say that both supports of power are plainly there.

PN130

Now, if I might move on to a further category of errors asserted by the company which is errors in the grant of interlocutory relief and the approach by his Honour to the provision of interlocutory relief, we say what his Honour did here is entirely consistent with established and orthodox principles and approach to the grant of interlocutory relief and it's not sufficiently arguable otherwise. It's important to recall, your Honour, the urgent circumstances in which this matter came before his Honour Senior Deputy President Lacy.

PN131

The day before 6 July, his Honour handed down the decision of 5 July as to the meaning of the phrase referred to in clause 15 of the certified agreement and this is, of course, in the context of the imminent loss of a contract by Brinks. The matter is listed for the next day and it's not in controversy that the company indicated that it intended to terminate the employees the following day.

PN132

JUSTICE GIUDICE: The 6th? The 7th?

PN133

MR MOORE: It intended to terminate the employees on 7 July.

PN134

JUSTICE GIUDICE: When was that indication first given?

PN135

MR MOORE: On the 6th I am instructed, your Honour.

PN136

JUSTICE GIUDICE: Thank you.

PN137

MR MOORE: So Senior Deputy President Lacy is hearing the matter on the 6th from 11 am it commences and the transcript I think shows his Honour's decision is handed down after six pm. He's faced with a statement by the company that the next day the employees are going to be terminated, I think 20 to 30 employees, if one reads the transcript. What was at stake on 6 July when the learned Senior Deputy President made his decision was a wish by the union to negotiate with the company as provided by clause 15 and a wish to negotiate with the company with the benefit of his Honour's earlier decision the day before on 5 July as to the meaning of the words transport industry standards.

PN138

On 6 July, Mr Johnson of the union orally notifies in the hearing of the day a further aspect of the dispute, namely the determination of the quantum of the redundancy package to be afforded to the employees, so that notification, I might take you to that, your Honour, the first indication of it is at paragraph 404 and this is where Mr Johnson says:

PN139

Your Honour, as we left it, the union was pressing for a direction to be issued by yourself preventing the company ...(reads)... that we are notifying a dispute to you under the pre-reform section 170LW of the Workplace Relations Act.

PN140

Then over the page, your Honour, at paragraph - I am sorry, going on, your Honour, at paragraph 405:

PN141

That dispute relates to the application of clause 15 of the enterprise agreement that applies between the parties.

PN142

He names the agreement and then a couple of paragraphs down at 407:

PN143

Your Honour, the part of the dispute that was not dealt with in that decision -

PN144

he's there referring to the decision of the previous day -

PN145

was the quantum that the company is obliged to pay in the event of redundancies occurring, that ...(reads)... payment which is of an unspecified amount and of which details have not been provided by the company.

PN146

And that notification is reflected in the learned Senior Deputy President's reasons where at the end of paragraph 659 he says:

PN147

The subject matter of dispute before me is the quantum of redundancy package for employees who are to be retrenched as a result of Brinks' determining their position has been made redundant.

PN148

Now, what we say, the effect of the Senior Deputy President's position was simply to preserve the subject matter of the proceedings which were before him, a foundational and uncontroversial purpose for interlocutory relief. If no relief had been granted by the Commission, the subject matter of the proceedings would have been destroyed and/or at the very least seriously jeopardised and there's two aspects to that. First, that aspect of the dispute which related to the negotiations towards redundancy packages and the determination of their amounts, the concept of negotiations is a complete misnomer with respect, your Honour, if the employees are no longer employees.

PN149

The horse will have bolted if one side of the negotiating table no longer has persons whose benefit they're negotiating for. Secondly, in relation to the later notification by Mr Johnson on 6 July as to the dispute about quantum of entitlements, the jurisdiction of the Commission to hear that dispute would be very much in doubt on the basis of authority of the Commission if the employees had been terminated, your Honour. This reflects what I've just submitted, your Honour, reflects a view that section 170LW and disputes notified thereunder are confined to disputes over the application of an agreement to current employees or disputes which are capable of affecting current employees.

PN150

Now, that view is expressed by Commissioner Thatcher in a lengthy decision in NTEU v The University of Western Australia in print 953722 dated
26 November 2004. In the time available, I haven't been able to conduct a comprehensive search of that view, but I'm of the sense, your Honour, that that view has been expressed elsewhere in the Commission. It's for those reasons, your Honour, that the relief that was granted by his Honour was necessary to preserve the subject matter of the proceeding.

PN151

It permitted negotiations to occur which negotiations would in substance be futile and rendered nugatory if the employees were no longer employees and secondly it ensured that the Commission had jurisdiction to deal with the further aspect of the dispute which had been notified, so we very much take issue with my learned friend's suggestion or submission that there would have been no prejudice to the employees if interim relief had not been granted. They would have no negotiating position, there's no-one the union would be negotiating for in relation to those who were terminated and the second notification would at the very least have been jeopardised.

PN152

Your Honour, before going to balance of convenience, I will just make sure - there's a couple of points my learned friend made that I might just quickly deal with. My learned friend's submissions about there not being a dispute over the application of the agreement appear to be fundamentally inconsistent with the Private Arbitration case which I've no doubt your Honour is well familiar with. The Commission has jurisdiction under section 170LW resulting from the making of an agreement between the parties in particular terms which confer on the Commission a private arbitration power and there is nothing anathema between that and the effective making of a declaration or the express making of a declaration under section 170LW.

PN153

There are numerous cases based upon that authority where the Commission has made a declaration as to the true meaning and effect of an agreement or a term in an agreement and that is not an exercise of judicial power. It's the exercise of a power of private arbitration. With the Telstra decision, your Honour, the only question that that case raises arguably here today is whether or not, or going back one step, the Full Bench clearly stated there, said this:

PN154

The Vice President found that section 111(1) permitted the making of interim orders under 111(1)(b) or 111(1)(t). We think this is clearly so.

PN155

That is clear, there's not a shred of doubt on that:

PN156

The question which remains -

PN157

the Full Bench continues -

PN158

is whether the exercise of power to make an interim award in the terms sought would be inconsistent with clause 17.3 and point 4 of the agreement.

PN159

So applied to the present circumstances, the only argument that really is open to Brinks here on that point is to say that the granting of an interim order - I am sorry, I withdraw that - the making of the declaration by his Honour in the interim decision he made was inconsistent with what the parties contemplated in their dispute settlement procedure in clause 11 and there is nothing in that clause which indicates any such confinement or which is otherwise inconsistent in some fundamental way with the making of such - or the exercise of such powers. My friend pointed to clause 11.2. Well, 11.2 is simply a very commonplace type clause which requires the continued performance of work in the event of a dispute notification. It doesn't touch upon the issues with which we're presently concerned.

PN160

JUSTICE GIUDICE: It might be a bit broader than that. It might just be a status quo provision generally.

PN161

MR MOORE: Well, your Honour, my eye is drawn to the words:

PN162

Work shall continue without disruption.

PN163

JUSTICE GIUDICE: Yes.

PN164

MR MOORE: And the second sentence would appear to be, we would think would be read in the context of the first and seems to be a clause which has that subject matter in mind and 11.3, I don't see how that assists Brinks in any way as to a reservation of rights otherwise at law.

PN165

JUSTICE GIUDICE: Well, I rather apprehended that what Mr Murphy was saying in that connection was that it was a right to terminate the employment of the employees who are affected, that that wouldn't be curtailed in this case.

PN166

MR MOORE: Well, your Honour, I don't see any intersection - perhaps I misunderstand my friend's argument, I don't see any intersection between the subject matter at 11.3 which is making clear that the parties rights at law or otherwise are not prejudiced. The question which arises from Telstra is whether or not any of these provisions indicate an intention by the parties to circumscribe the sort of powers the Commission can issue, in particular interim, the making of interim type directions or interim relief.

PN167

JUSTICE GIUDICE: Well, it certainly contemplates - step 5 itself certainly contemplates arbitration.

PN168

MR MOORE: Well, I haven't heard my friend say otherwise, but I don't see that there's any doubt there that what we're dealing with here, your Honour, is a very wide dispute settlement procedure. At 11.1:

PN169

The aim of this procedure is to resolve disputes and manage conflict in a prompt and effective manner.

PN170

And then there's a reference to:

PN171

If the matter remains unresolved -

PN172

there's a very wide description of the types of matters which can be dealt with under the clause. Before I go to balance of convenience, just to say something else about the approach to the granting of interlocutory relief. Unsurprisingly in the circumstances and in the context I outlined to your Honour before, Senior Deputy President Lacy hasn't adopted as a structure in his reasons the structure one might see sometimes in other jurisdictions, serious question to be tried and balance of convenience and structured his reasons for decision around those twin tests.

PN173

However, we say that looking at the paragraphs which constitute his decision, what he has been minded to do and what he's clearly been concerned about is the preservation of the subject matter of a proceeding which, as I've indicated, lies at the heart of the grant of interlocutory relief, making sure the horse doesn't bolt before the Commission has an opportunity to exercise its jurisdiction.

PN174

JUSTICE GIUDICE: The horse bolting issue, something I should have tackled you about earlier, perhaps, what Mr Murphy says about that is that his client is prepared to continue with these discussions and that on the assumption that in due course agreement will be reached, then there will be - whatever the result of the agreement is, those payments will be made, so he says that whether the terminations take effect or not, the quantum, if you like, or the identification of a package will apply to them in due course.

PN175

MR MOORE: Well, that presupposes, of course, agreement being reached as to what the package is and Brinks' position since last week has been - well, it's given us no confidence of any interest in continuing to have discussions given their non-attendance at the conciliation on Saturday, but, in any event, the point is this, your Honour, it's open to my client to agitate before the Commission a dispute as to the quantum of the entitlements and that's what it did on the 6th and in that further notification, if you like, your Honour, my client is requesting the Commission to exercise its powers of arbitration to determine the entitlements because, as your Honour might note, because, your Honour, there is no confidence, although there's willingness, there's no confidence that the company is genuine about negotiations and because of its stated intention to start terminating employees forthwith. His Honour found and I note that this finding is not challenged in the notice of appeal, his Honour found and this is at paragraph 660:

PN176

I am not satisfied at this stage that Brinks to date has negotiated in good faith.

PN177

Now, in that circumstance it's entirely open for my client to advance a further notification under section 170LW asking the Commission to settle the dispute in respect of the quantum of the entitlements and if the employees are terminated, that for the reasons I've previously indicated at the very least will seriously jeopardise their ability to have that application heard and determined.

PN178

JUSTICE GIUDICE: Could I just ask you one of the factual matters, Mr Moore?

PN179

MR MOORE: Yes, your Honour.

PN180

JUSTICE GIUDICE: When did the contract that's the cause of this problem actually terminate?

PN181

MR MOORE: My instructor will correct me if I'm wrong here, but I'm led to believe that - rather than guessing, your Honour, I will get some instructions. I have in front of me, your Honour, a notification, a memorandum it appears to all employees from Brinks dated 5 May 2006 which states:

PN182

Our commitment with NAB -

PN183

which is the relevant contract here -

PN184

will end on 16 July 2006 and we will provide service up until this date.

PN185

JUSTICE GIUDICE: Thank you.

PN186

MR MOORE: One last thing to do with the approach to interlocutory relief, Brinks did not say or submit to Senior Deputy President Lacy that as the price as it were for the granting of any interlocutory relief, my client should proffer up an undertaking as to damages. It's a bit rich, we would say with respect, for them to now be complaining about that. Moreover and more fundamentally, such an approach, notwithstanding the comments, the statements by Vice President Lawler, with respect, such an approach is unprecedented in this institution so far as I'm aware and the approach as I read Vice President Lawler's comments which I also note were not the subject of consideration on that issue by the Full Bench, the Full Bench being focused on the question of power, those comments by his Honour were of a general type about the approach to interlocutory relief albeit his Honour then saying that such an approach should apply in the Commission, but those comments as I've indicated were not dealt with or addressed or reviewed as it were by the Full Bench and have not otherwise been adopted or applied.

PN187

Now, on balance of convenience, your Honour, I think I've traversed most of our point there. The prejudice will be most serious and will constitute irreparable harm if his Honour's decision and direction is stayed. The scope for consultation and negotiation in particular about it as mandated by the agreement will be destroyed in respect of those employees who are dismissed and as for the reasons I've indicated, the capacity of the union to advance and have determined its application under section 170LW in respect of the determination of the quantum of entitlements will at the very least be seriously prejudiced.

PN188

Now, the only other points I make on balance of convenience are that plainly the making of the direction and the interim decision is the source of some inconvenience for the company. I put on the record that the union is supportive of an expeditious approach to the determination not only of this appeal, the hearing and determination of the appeal, but also the proceedings below and I also point to the issue your Honour has just recently raised with me which is when the contract comes to an end.

PN189

Although the company for its own reasons sought to start commencing the terminations of employees last Friday in their notifications to employees, it has indicated that the contract will continue to be serviced until 16 July, so there is still some time as it were before the employees have no work to do. Can I also just draw to your attention, on 6 July before Senior Deputy President Lacy there was some witness evidence by a representative of the company and the company's witness whose name was Mr Gurran acknowledged at paragraph 601 that it would be possible to maintain the employment of the employees without work to do, so the company will of course paint the picture that the world is unbearably difficult to survive in in the present circumstances, but I would just urge your Honour to bear in mind the matters which I've just alluded to. Thank you, your Honour.

PN190

JUSTICE GIUDICE: Mr Murphy, before I ask you to respond, I did want to put something to you. Have you been able to check the issue of whether Mr Diamond took any point about Senior Deputy President Lacy determining the issue of what transport industry standards were or whatever that phrase is? Remember I asked a question about whether Mr Diamond had objected to the Senior Deputy President dealing with that issue?

PN191

MR MURPHY: I haven't been able to find that in the time that I've had, or at least my instructing solicitor has had, your Honour, and I think it's probably the case that he did not in terms.

PN192

JUSTICE GIUDICE: One of the things that concerns me a little is to the extent that your client is seeking an indulgence from the Commission by way of a stay, its own conduct might legitimately be the subject of comment and speaking for myself and from the point of view of a member of the Commission, if, in fact, no objection was taken to the Senior Deputy President dealing with that, but your client simply made submissions as to the merits and as to the outcome, a subsequent application that the Senior Deputy President dismiss himself for bias seems to me to be a rather extraordinary course for a party to take and before asking for your reaction to that proposition, there is an additional matter which is that rather than attending a conference scheduled for Saturday and putting a submission in what might be said to be the appropriate fashion that the Senior Deputy President disqualify himself, your client simply chose not to attend which again I would have thought is conduct which one would not normally expect from a party. Should I take those matters into account, or am I misguided as to my interpretation of the events?

PN193

MR MURPHY: We would submit that, your Honour, those particular matters are not matters which ought to weigh in your Honour's consideration in relation to the application for the stay. The stay is in relation to his Honour's purported declaration granting injunctive relief, restraining my client from terminating its employees. Now, that's quite a different issue from the question as to the interpretation of the provision in the enterprise agreement and the question of what transport industry standards may mean or may not mean.

PN194

That was the matter that was before his Honour which led to the decision of 5 July and even if it be the case that there was no objection taken to his Honour dealing with that question, that is not a matter that relates directly to the subject matter of this appeal and we make the same submission in relation to the events of last Saturday, with respect, that that again doesn't touch upon the question, the subject of this appeal.

PN195

Now, I'd need to get instructions in relation to the full situation as to the company's action or inaction last Saturday, but it's clear and I think so much is clear from the submissions of my learned friend that matters have been moving quickly in this situation and as I understand, my client was considering its legal rights and obligations as a result of the decision that was handed down and your Honour will see from the transcript, it wasn't given - the proceedings didn't conclude until 6.17 on Thursday, 6 July, quite late in the day and the matter was then as it were scheduled for conciliation on the Saturday morning.

PN196

It didn't give my client a great deal of time to consider its position and get advice. Now, I don't put that forward by way of a mea culpa type submission, but your Honour would give some consideration to the extent that this is relevant to the very compressed nature of the programming that has occurred in this matter. You have a decision on 5 July, further conciliation we're told on the 6th and argument about power, a decision that day and then a program apparently for further conciliation a little over 24 hours later.

PN197

My primary response to your Honour is whatever criticisms may or may not be justified of my client in relation to those issues, that doesn't impact upon the question, the subject of this appeal and that is whether his Honour initially had power to restrain my client and secondly, if he did and we say clearly he didn't, whether he exercised that power in an appropriate way.

PN198

JUSTICE GIUDICE: If you're moving off that, can I just ask one other thing about the compressed timetable as you refer to it? Is it correct as was indicated by Mr Moore that the first indication that the terminations would take effect on 7 July was given on 6 July at the proceedings?

PN199

MR MURPHY: Your Honour, I am told that the indication was given much earlier than that, on 30 June and certainly - - -

PN200

JUSTICE GIUDICE: That the terminations would be on 7 July?

PN201

MR MURPHY: Yes, those are my instructions, that they would commence on
6 or 7 July. That indication on my instructions was given on 30 June and I will try and locate that, but clearly the question of - indeed, your Honour might see that on that day, 30 June, at the end of proceedings on that day, his Honour made a recommendation in relation to anticipated retrenchments, but as his Honour has been taken to, there was a notification to employees generally back in May as to the loss of the contract and the ultimate need for redundancies.

PN202

Now, my learned friend took your Honour to that and put a submission as I understand it. In that notification, there is an indication that the service provided to the NAB will conclude on 16 July. Now, that notification has to be understood in the context of a notification generally Australia-wide. As I understand the position, that timetable included a programmed hand-over to the incoming contractor progressively which meant that people's jobs would become redundant in the period leading up to 16 July and clearly his Honour appreciated that. His Honour in terms recognised that there is no work for numbers of employees.

PN203

My instructions are that in Melbourne, there is no work for Brinks employees in relation to the NAB contract as of the present time and certainly as of 6 July, so if it's to be suggested that there is work to be done up until 16 July, that is simply incorrect and the notification or memorandum to employees doesn't support such a proposition and I am directed to paragraph number 383 of the transcript of 30 June as well, your Honour, so I think it's fair to say that it's wrong that the indication that the retrenchments taking place was only given a day or two before the intended date.

PN204

JUSTICE GIUDICE: Thank you. While we're on it, perhaps you could clear something else up for me because I haven't had the opportunity to look at the earlier transcript. In the Senior Deputy President's decision of 5 July, that is the one dealing with the interpretation, if you like, of the agreement, in the final paragraph he refers to recommendations, in fact the very last sentence of the decision. Presumably that reference should be to 30 June 2006, but what were those recommendations?

PN205

MR MURPHY: They are the ones I mentioned, your Honour, that are set out at paragraph number 391 of the transcript of that day where he says:

PN206

I've had some discussions with the parties regarding the application for an undertaking from the company ...(reads)... in Melbourne in relation to its Melbourne operation prior to the close of business on Wednesday, 5 July.

PN207

JUSTICE GIUDICE: Yes, I see. Thank you.

PN208

MR MURPHY: I understand that's what his Honour refers to and clearly your Honour is right, the reference to 30 July in that paragraph of the decision ought to be read as 30 June. That was the date that the recommendation was made. Can I deal very briefly with some of the points that my learned friend has made?

PN209

JUSTICE GIUDICE: Yes.

PN210

MR MURPHY: The question of whether or not the issue of the Commission's jurisdiction and/or power to grant interlocutory injunctive relief of the sort being claimed by the union, whether or not that was raised in the proceedings of 6 July, my learned friend took your Honour to paragraph 533 and I think accepted there that - this was Mr Diamond raising the question of the Commission's power to grant such relief.

PN211

Now, your Honour will see in that paragraph and the following paragraph there's reference to section 111(1)(c) and your Honour will recall that was the head of power that the union was, as it were, calling into play so Mr Diamond was responding to the union's submission in relation to its claim, but the submission as to jurisdiction and/or power really commences somewhat earlier than that. It goes back to paragraph number 511 and starts there and without reading all of that, there is quite a deal of interchange between Mr Diamond and his Honour preceding those paragraphs which my learned friend took you to which go to the question of the Commission's power and/or jurisdiction, so it was clearly a live issue before his Honour.

PN212

There's then the reference to schedule 7 of the current Act and his Honour's apparent reliance on that and in particular, if I can just find the passage, in particular schedule 7, part 2, division 1 - I think that's (i)(r). I will just turn that up if I might. Now, your Honour, it's my understanding from the transcript and I will be corrected if I am wrong in this, that his Honour's reliance upon (r) in section 2 of this division, section 2(i) of this division, was not something that was agitated before him, not something that was argued in the competing submissions of the parties and we would want to say a number of things about it.

PN213

Clearly, this schedule preserves section 170LW for the purpose of pre-reform agreements which this is, but it's a long bow in our submission to say that (r) effectively preserves all of the Commission's previous powers under the previous section 111. We would disagree with that and in effect that wasn't an issue that was argued or debated before his Honour.

PN214

JUSTICE GIUDICE: Well, what would it mean?

PN215

MR MURPHY: Well, it would mean that you would be required to read any other provision relating to the operation of the provisions mentioned in the preceding paragraphs as preserving the complete range of powers that existed under the pre-reform Act in light of a clear alteration to that position as set out in the current section 111 and we say that that's a fairly ambitious argument to put, but not one that was put.

PN216

JUSTICE GIUDICE: But if that's wrong, Mr Murphy, what does (r) mean? That's really my question. What is it intended to do?

PN217

MR MURPHY: Well, on its face it relates to provisions of the former Act, whatever they may be, that relate to the operation of provisions such as those referred to above. Section 170LW is only one such provision and it may well be that in relation to section 170LW, (r) has no work to do at all. I haven't considered whether or not it has work to do in relation to the other provisions there mentioned and I really can't assist your Honour further than that, but can I say this and I appreciate my learned friend's concession that one needs to tread warily with this legislation at the current stage for obvious reasons.

PN218

It's uncharted waters in many respects, but if, indeed, (r) has some relevance to these proceedings and to proceedings arising under section 170LW, then surely that must also bring into play appeal rights. My learned friend seems to wish to have a bit each way in relation to that. He says as I understand it the appeal is not competent because it's not a matter that is dealt with in section 120 and we take issue with that, but he can't really have it both ways. He can't say that the appeal is not competent and yet this provision in (r) brings into play the previous section 111 and all the subsections to that, but not bring into play appeal rights from decisions made pursuant to those powers. That just simply can't be right.

PN219

JUSTICE GIUDICE: But it may be that the appeal has to be lodged under section 45 of the pre-reform Act.

PN220

MR MURPHY: That may be so and if that is the position, we'd need to seek leave to amend and I'm sure for obvious reasons that's an application the Commission would view favourably.

PN221

JUSTICE GIUDICE: Yes, I'm not too sure about that, but I understand the submission you would make in that event.

PN222

MR MURPHY: Our primary position is that section 120 is broad enough to cover this situation and can I ask the Commission to go to that?

PN223

JUSTICE GIUDICE: Yes.

PN224

MR MURPHY: This is clearly a decision of his Honour in which his Honour has found that he has jurisdiction, so (f) comes into play, subsection (i)(f) and we would say also subsection (i)(a) because if this is not an order, one wonders what it is. It may not be characterised as an order or described by his Honour as an order, but if it has any force at all, it must be in the context or in the sense understood in subsection (i)(a), restraining my client from doing what it's otherwise legally entitled to do.

PN225

JUSTICE GIUDICE: You say if it's not an order, what's all the fuss about.

PN226

MR MURPHY: Well, perhaps, and I don't think it's stretching things too far to say that interlocutory injunctions are by their very nature orders in the sense understood in this jurisdiction.

PN227

JUSTICE GIUDICE: I think there might be some Full Bench authority to support that proposition. If I could just indicate that I am referring to a decision I think of - certainly of this year in which a question of whether what was termed the determination in a section 170LW proceeding was something which was an order for the purpose of 45(1)(a), I think, and the Full Bench decided that it was. I am sorry I can't give any better reference to that decision.

PN228

MR MURPHY: Well, I am indebted to your Honour for that. That's certainly our understanding of the way the provision would operate. My learned friend then said that his Honour approached the question of the granting of interlocutory relief in an entirely orthodox way. Well, we would say with respect to his Honour that that's clearly not the case, because none of the tests, if I can use that term, that Vice President Lawler referred to in the Telstra matter are alluded to in any way.

PN229

Now, my learned friend has made a significant submission as to questions of balance of convenience, the horse having bolted, all of these things, but none of those appear to have been addressed by his Honour and we take issue with those submissions in any event. This is not a decision that was necessary in order to preserve the subject matter of the proceedings before his Honour. This is not a situation where if the relief was not granted, the subject matter of the proceedings is destroyed or in any way jeopardised and we taken fundamental issue with the union on this point.

PN230

This proposition that the horse will have bolted is simply wrong. I don't have the benefit of the decision of Commissioner Thatcher that's been referred to, but can I say this? Our position is quite clear on this. Whatever rights that exist under the agreement and that will obviously be a question for debate, but whatever rights exist under the agreement for employees who are retrenched do not disappear upon the retrenchment of those employees, whether the issue as to what those rights are has been sorted out prior to or after the retrenchment has taken effect, so that puts to rest in my submission this proposition that the horse will have bolted.

PN231

That's clearly not so. If there is to be negotiations towards a package, those negotiations can continue and proceed prior to or after the retrenchment of the employees and will not be affected in any way by the retrenchment taking effect and that is a fundamental point of difference between us, but with respect to my learned friend, he simply hasn't made good this fairly important point that the horse will have bolted. We say that's simply not so.

PN232

Whatever rights are in existence pursuant to the agreement may be enforced by the union or its members in the normal way, whether they're employees or not. This sort of harks back to the old cases your Honour might recall, I'm sure you do, where the Commission had to grapple in days gone by with the question of whether it could exercise powers in relation to terminations it had been affected and whether in doing so, that was exercising powers in relation to an industrial dispute or whether an industrial dispute could remain on foot in relation to persons who were no longer employees and your Honour will recall all the fun we had with those arguments, some of which went to the High Court at various times. That doesn't apply here. This is an agreement which establishes rights for employees. It on one view establishes rights for employees at the point of retrenchment and those rights are not affected in any way by the retrenchment being put into effect.

PN233

The proposition that we put in relation to subclauses 11.2 and 11.3 of the agreement is simply this. We say those two provisions taken together have similar effect as clause 17.3 was found to have by the Full Bench in the Telstra appeal. It doesn't exclude - those provisions don't exclude rights or arbitration to the extent that they exist elsewhere in the provision and they weren't found to in the Telstra appeal matter. They simply say that irrespective of rights and powers of arbitration, nothing in the agreement prevents the employer from exercising its otherwise lawful rights including, of course, a right to terminate employment of employees who are redundant.

PN234

The question of whether or not there is a dispute over the application of the agreement, we say that that is an issue. We say this is not a dispute over the application of the agreement. It's accepted that the agreement applies. I simply refer your Honour to the consideration of that question in Vice President Lawler's decision in the Telstra matter which commences at paragraph 10 of that decision and that was also dealt with by the Full Bench on appeal from paragraph 13 of the appeal decision.

PN235

We accept that the term or the concept of a dispute over the application of an agreement is construed broadly, not construed narrowly, but ultimately there still has to be and I think this is recognised by both the Vice President and the Full Bench a dispute over the application of the agreement and that's simply not the case here, so those are the matters we wish to address. It seems that the primary position put by the union in opposition to our application is that of balance of convenience and the question of the horse having bolted and prejudice that will flow.

PN236

We simply say that those submissions are quite wrong, but in any event, they were matters that were not dealt with or dealt with in any satisfactory way by his Honour and should have been, if his Honour was to take what I think is accepted as a fairly significant step, a fairly drastic step, in restraining my client from terminating employees for whom it has no work. Those are our submissions in reply, your Honour.

PN237

JUSTICE GIUDICE: Mr Murphy, how long do you think the negotiations to which you've referred and which your client is prepared to enter into will take?

PN238

MR MURPHY: It's difficult for me to answer that, your Honour, but my client stands prepared to enter into them at the earliest time that is possible and continue with them until they conclude. I am instructed to put that to your Honour.

PN239

JUSTICE GIUDICE: Yes. Well, I won't be able to make a decision on this application straight away. It may take me perhaps a day, I'm not sure, probably no more than that, but it does occur to me that there might be some point in arranging discussions, either the parties themselves or with a member of the Commission as soon as that can be done. I would be interested in your submissions about that.

PN240

MR MURPHY: Well, my client certainly is available to enter into negotiations with the union and to the extent that your Honour's proposal of providing a member of the Commission to assist, given the history, I don't want to rake over again, your Honour, this matter, we would think that such assistance might best be provided by a member other than Senior Deputy President Lacy for reasons which I would hope your Honour would appreciate.

PN241

JUSTICE GIUDICE: Mr Moore, do you have any submission about my suggestion?

PN242

MR MOORE: Your Honour, the union is very willing to engage in negotiations with the company either directly or with the assistance of the Commission. That's always been our position, it remains it. I would say, though, that it's not our position that - we would take issue with my friend's last comment to the effect that it may be desirable for some other member of the Commission other than Senior Deputy President Lacy to assist. Senior Deputy President Lacy has the background in the matter and until there's some other determination elsewhere in this Commission or his Honour otherwise determines himself, he's charged with the matter and we would think that that is the appropriate way to proceed.

PN243

JUSTICE GIUDICE: There was something listed this morning, wasn't there?

PN244

MR MOORE: Yes, your Honour. I will just check with my instructor. There was you will recall the further application which was issued - which was notified by the union as to the quantum of the entitlements. I withdraw that. The proceeding, the C number, whatever it is, was listed for arbitration today.

PN245

JUSTICE GIUDICE: I see.

PN246

MR MOORE: That notification was cancelled I am instructed this morning, presumably in light of the hearing of this matter now. That's right, the proceeding was listed for arbitration by video link before Senior Deputy President Lacy this morning and it was cancelled and we received this notification from the Commission this morning or last night - last night, yes. Your Honour, might I just raise one other matter?

PN247

JUSTICE GIUDICE: Yes.

PN248

MR MOORE: This is with my friend's indulgence. I omitted just to refer your Honour to one other authority which I won't now make submissions about, but for the record, if I could direct your Honour to a decision of Senior Deputy President Watson in Maritime Union of Australia v ASP Ship Management Pty Ltd, 5 August 2002, in print 920954 at paragraph 33, his Honour makes some remarks of a fairly substantive character going to the Commission's general powers to grant interim relief for the purpose of reserving the subject matter of proceedings. It's not an LW case, your Honour, but I draw that to your Honour's attention. I thank my friend for his indulgence.

PN249

MR MURPHY: Might I just very briefly deal with that, your Honour? My learned friend is quite right. It's not an LW case. It's a case of quite a different character and it is a case where it could be reasonably argued that the subject matter of the proceedings would be lost absent the grant of interlocutory relief, quite a different proposition than this was before his Honour. Just responding if I may to the issue of further conciliation with a member of the Commission, we would take the view that given Senior Deputy President Lacy has made a decision of 5 July, the decision as to the meaning of part of the enterprise agreement which my client is still considering its position in relation to and given that he's also made the decision of 6 July restraining my client which is the subject matter of this appeal and application for a stay, it seems to us that it would be inappropriate to continue with the conciliation with Senior Deputy President Lacy's involvement, especially given that, as we understand what was anticipated would happen this morning is that he was intending to embark upon an arbitration. For those reasons, we think if there is to be further conciliation with a member of the Commission, that would be best facilitated by a member who hasn't been involved in the matter up until the present time.

PN250

JUSTICE GIUDICE: Yes, well, I have already expressed some views about the circumstances in which the Senior Deputy President came to make the decision about the construction of the particular term of the agreement, so I won't go over that. In the circumstances, gentlemen, I will simply leave it to you to arrange discussions between yourselves and at those discussions, obviously the question of what other Commission processes might be engaged can also be the subject of discussion if necessary. In any event, I don't see it as appropriate that I make any orders in respect of those things, sitting as I am on a stay application. I would, however, appreciate having a report of some kind by noon tomorrow as to any progress which has been made or any decisions which have been jointly reached. I would hope that shortly after that, in any event, to be able to give my decision on this application, but I don't wish to do anything that might jeopardise there being fruitful discussions in the meantime. If there's nothing else, gentlemen, I shall thank you for your submissions and adjourn.

<ADJOURNED INDEFINITELY [12.07PM]