C2006/4033, Transcript of Proceedings [2007] AIRCTrans 118 (15 March 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 16561-1

SENIOR DEPUTY PRESIDENT HARRISON
SENIOR DEPUTY PRESIDENT RICHARDS
COMMISSIONER ROBERTS

C2006/4033

APPEAL BY QANTAS AIRWAYS LIMITED
s.120 - Appeal to Full Bench
(C2006/4033)

SYDNEY

10.12AM, THURSDAY, 01 MARCH 2007

PN1

MR R KENZIE: I appear for the appellant and I have with me
MS R BERNASCONI.

PN2

MR J NOLAN: I appear for the respondent union in this matter.

PN3

SENIOR DEPUTY PRESIDENT HARRISON: I expect you both would like leave and it’s granted.

PN4

MR KENZIE: We did discuss that briefly and we apologise.

PN5

SENIOR DEPUTY PRESIDENT HARRISON: Mr Kenzie.

PN6

MR KENZIE: Thank you. If it please the Commission this is an appeal against the decision of Commissioner Raffaelli on 30 November 2006. The Commission might see from the appeal documents that it’s formerly described as an appeal under section 120(1)(f) of the Act. Could I take this step at the outset. We have a folder of authorities and at the back of that folder are the relevant provisions to which we propose to make specific reference. It might be convenient if I make that available now.

PN7

SENIOR DEPUTY PRESIDENT HARRISON: Yes, thank you.

PN8

MR KENZIE: And the legislation is in both the pre-reform and the current legislation. You will find insofar as we consider relevant in tabs 10 and 11 of those folders and in tab 11 you will find, really the fifth last page of the whole folder, section 120 sets out and it provides that in appeal to the Full Bench with the leave of the Full Bench against, and I'll read (f) first:

PN9

A decision of a member of the Commission that the member has jurisdiction, or a refusal or failure of a member of the Commission to exercise jurisdiction.

PN10

And as I say the appeal as it’s filed refers to section 120(1)(f). But it is probably more appropriate on reflection to refer to section 120(1)(c) which provides for an appeal from a decision of a member of the Commission under paragraph 111(1)(e) and if the Commission - I'll be coming to the transcript of the proceedings before the Commissioner in due course, but if the Commission just turns to the appeal book which is very brief and in relation to in the transcript of the appeal book, page 9 at the end, Ms Bernasconi ascertains that the Commissioner was purporting to exercise power under section 111(1)(e) of the current Act, if the Commission sees that.

PN11

So it’s appropriate to have regard to both those aspects of section 120 because as the Commission may have discerned that it’s part of our case that although there was a purported exercise of power under section 111(1)(e), in fact 111(1)(e) was not in truth applicable, but in any event it is a purported exercise of that power.

PN12

SENIOR DEPUTY PRESIDENT HARRISON: Does that in effect amount to an application just to revisit that part of your appeal and add (e)?

PN13

MR KENZIE: It would be appropriate to do that.

PN14

SENIOR DEPUTY PRESIDENT HARRISON: Mr Nolan? Yes.

PN15

MR KENZIE: Yes, to add (c) which refers to (e).

PN16

SENIOR DEPUTY PRESIDENT HARRISON: To add (c) which refers to (e)?

PN17

MR KENZIE: To add 120(1)(e), sorry.

PN18

SENIOR DEPUTY PRESIDENT HARRISON: Sorry, I see where you’re getting, (c) yes.

PN19

MR KENZIE: So that in fact we would see leave to amend the notes of appeal to add a reference to section 120(1)(c) for the reasons that I’ve given.

PN20

SENIOR DEPUTY PRESIDENT HARRISON: Yes. The notice for appeal will be amended accordingly.

PN21

MR KENZIE: Thank you. Now, in the decision the Commissioner dismissed the application of Qantas being an application under 170MD(6), to which I'll come in a moment, to vary a certified agreement known as the Qantas Long Haul Certified Agreement and the application to vary that agreement you will find in the appeal book, that being the application of 22 August 2006. The Commission may feel that it is necessary to have an understanding of the actual matter, that is what the actual dispute, the underlying dispute, is all about and although the Commission may ultimately feel that it’s not necessary to go into the depths of the ultimate controversy between the parties, but the application under MD was an application to vary the clause that appears in the Long Haul Certified Agreement, being a
pre-reform agreement, that appears in paragraph 2 of the application grounds and it refers to the assignment to a flight crew member to two patterns or two other duties provided for elsewhere in the agreement or a combination of a pattern and a duty for each pattern protected occasion.

PN22

And if the Commission finds it necessary I'll come to the mysteries of pattern protection when we get a little further into the appeal. But the single matter that activated Qantas in relation to the application to vary was the question of whether during a relevant pattern protection period Qantas could exercise its right to assign to two patterns or two other duties that is on more than one occasion during the period. So the question is whether the clause where it refers to the assignment of two patterns means simultaneously or on two occasions and Qantas’s position is simply that in accordance with past practice and in accordance with the negotiations between the parties it didn’t mean simultaneously, it entitled Qantas to make two decisions during the relevant period.

PN23

The regime of pattern protection is complex. The issue in relation to the agreement that divided the parties is not complex. It’s as simple as that. So that was the application that Commissioner Raffaelli dismissed on 30 November 2006. Now, in round terms, if it please the Commission, there are really two points in this appeal and in a global sense those points are the availability of section 111(1)(e) of the new Act which was, in the circumstances that being the provision pursuant to which Commissioner Raffaelli purported to act, and secondly an issue of procedural fairness to Qantas having regard to the circumstances of the case and the way in which Qantas’s application was parentally dismissed. Obviously if the Commission formed the view that the decision of Commissioner Raffaelli was procedurally flawed, as we say it clearly was, then the Commission would not need to go or ultimately determine the statutory question which is the first of the two questions leading to the availability or non-availability of section 111(1)(e).

PN24

Having said that could I as briefly as I can and by reference to tabs 10 and 11 just take the Commission to those provisions of the ..... would the Commission just pardon me a moment? Mr Nolan’s just informed me he hasn’t got a copy of the file that we made available to the Commission. I wasn’t aware of that until a moment ago.

PN25

SENIOR DEPUTY PRESIDENT HARRISON: Which file?

PN26

MR KENZIE: It’s the list of authorities.

PN27

SENIOR DEPUTY PRESIDENT HARRISON: I see, yes. This one just recently provided to us.

PN28

MR KENZIE: And so Mr Nolan’s currently operating at a considerable disadvantage.

PN29

SENIOR DEPUTY PRESIDENT HARRISON: Well, we can check. But 10 and 11 are the extracts from the legislation?

PN30

MR KENZIE: They are and they are all that I am referring to at the moment. If Mr Nolan has the Act he’ll be with us.

PN31

SENIOR DEPUTY PRESIDENT HARRISON: That’s right, but he doesn’t understand what 10 and 11 is if he doesn’t have this.

PN32

MR KENZIE: No.

PN33

SENIOR DEPUTY PRESIDENT HARRISON: That’s fine. Yes, proceed.

PN34

MR KENZIE: In relation to the pre-reform Act which the relevant provisions are in tab 10 and tab 10 includes firstly former section 111(1)(g) and that provision will be well familiar to the Commission. It is the traditional provision which was the subject of a host of litigation over the years and indeed it’s probably one of the most familiar provisions of the Act in earlier iterations. But the thing to notice about it is that it provided that a matter could be dismissed or alternatively the Commission could refrain from further hearing or from determining an industrial dispute if it appeared, amongst other things:

PN35

(iii) that further proceedings are not necessary or desirable in the public interest.

PN36

Could I then refer to section 170LA of the pre-reform Act and LA(1), this deals with the performance of the functions of the Commission in relation to certified agreements former Part VIB and LA(1) provided that the Commission must, as so far as practicable, perform its functions in a way that furthers the objects of the Act. LA(2) excludes the relevance of or the operation of or reference to section 90 of the former Act in relation to the public interest and LA(3) provided, and this is the particular subsection that’s of significance for present purposes, that the Commission may not act under paragraph 111(1)(g), in performing its functions under this part the Commission may not act under paragraph 111(1)(g) on the grounds specified in subparagraph (1), (2) or (3) of that paragraph.

PN37

So under the former Act 111(1)(g) applied, you could either dismiss or refrain, but in relation to Part VIB section 90 was not relevant and the Commission was specifically precluded from acting under 111(1)(g) including (3), the public interest. And those two subsections of course are complimentary and consistent. If the Commission would then turn to section 170MD(6) this is in the middle of the first column on the page. This is the provision pursuant to which Qantas’s application was made:

PN38

(6) The Commission may, on application by any person bound by a certified agreement, by order vary a certified agreement: (a) for the purpose of removing ambiguity or uncertainty.

PN39

So subject to correction they are the provisions that are centrally engaged in relation to or at least relevant from the pre-reform legislation. If I could then turn to ..... yes, and I’m reminded by Ms Bernasconi that the application under MD(6) plainly identifies an application under Part VIB. It’s a Part VIB case. Turning to tab 11, the current legislation, the first provision section 111 which commences in the second column on the first page and you will notice immediately that if one turns to (e) this provides that the Commission may dismiss a matter or part of a matter on the ground (i) that the matter, or the part of the matter, is trivial or (ii) that further proceedings in relation to the matter are not necessary or desirable in the public interest.

PN40

And the significant thing about that change is of course there is no current power to exercise a discretion to refrain from hearing, there is only a power to dismiss under the current legislation. I pass over - the next section in the tab is section 120 and I pass over that other than the reference that I’ve already made to (1)(c) and refer obviously to subsection (6) which is the provision relating to the reception of further evidence in the appeal. That is relevant for reasons to which I'll come. There is an application in this matter for the reception of fresh evidence. We should tell the Commission that the parties have discussed the matter and as we understand it there is no objection from Mr Nolan to the reception of the fresh evidence that we have sought to adduce and Mr Nolan has taken the, if I may say so, the sensible course of acknowledging that where one is talking about, for example, procedural matters and procedural fairness matters one does have to have an understanding of the background leading to the proceedings and that’s what the evidence essentially goes to and I'll come to it.

PN41

Turning from section 120 then one has schedule 7 of the present Act for the transitional arrangements for existing pre-reform federal agreements and Part 2 clause (2)(i):

PN42

Subject to the schedule the following provisions of the pre-reform Act continue to apply in relation to a pre-reform certified agreement despite the repeals and amendments made by the Workplace Relations Amendment Work Choices Act 2005.

PN43

(a) is section 170LA and LB, (i) is paragraph 170MD(6)(a), that’s the provision pursuant to which the application for Qantas was made, and (r):

PN44

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

PN45

Now, if it please the Commission the position that Qantas suggests is the correct position in relation to that complex of legislative provisions as this, that firstly section 170MD(6)(a), the subsection pursuant to which the Qantas’s application was made, survives as a result of schedule 7 paragraph (2)(i). Secondly we would submit that former section 111(1)(g), that is 111(1)(g) of the pre-reform Act, applies to the proceedings by virtue of paragraph (2)(i)(r) being a provision relating to the operation of the provisions mentioned in the preceding paragraphs. That is our submission.

PN46

Thirdly it is clear that section 170LA(3) applies to the proceeding by virtue of schedule 7 paragraph (2)(i)(a) with the result that paragraphs, we say, (i), (ii) and (iii) of section 111(1)(g) of the former Act don’t apply. In other words the current Act has preserved the integrity of section 170LA. It’s preserved the proceeding which goes forward under LA and parliament has intended to reserve the LA regime. That LA regime was a regime that included 111(1)(g) in its truncated form and under the pre-reform Act you couldn’t come along and seek to have an LA matter dismissed under 111(1)(g) in the public interest.

PN47

And we say that the attempt of the schedule is to maintain that regime today and accordingly one is not in the arena where recourse could now be had to 111(1)(e) of the new Act as though it comes back into the trumps and is reintroduced so as to provide that the LA regime in the Work Choices era has an opportunity for intervention that was not available in the Part VI era. That would be indicated and would be wrong in our submission. Now, we say that support for that approach is clearly to be gained from decisions of this Commission including ..... if the Commission would pardon me for a moment. If the Commission would just pardon me for a moment.

PN48

It’s the decision in tab 6 of the materials. The Curragh case where in the context of a former section 170MX arbitration the Full Bench wrestled with the question of whether section 111(1)(g) applied in relation to a legislative regime which has specifically excluded the operation of the provision. And on page 274 of the print you will see that the Commission was there dealing and refer it with and referring to section 170AL(3) and the specific exclusions that we’ve referred to in LA(3) and having discussed a former decision the Full Bench in the Curragh case said at about point 6, referring to the reason in the middle of the page:

PN49

Understanding its reasoning it’s my understanding of the relevant provisions of the Act section 170MY provides that the Commission is exercising its powers under MX which respectively enable the Commission to conciliate and if conciliation is unsuccessful arbitrate after the termination of the bargaining period it has available to it its ordinary conciliation and arbitration powers under Part VI. Section 111(1)(g) is replicated in Part VI.

PN50

So although it is not set out in the judgment it would seem that Curragh’s argument was along the lines that despite the provisions of LA(3) the effect of section 170MY is to reinstate the availability of section 111(1)(g) applications in the context of section 170MX. The Full Bench disagreed with this. Its decision means that just because MY makes the Part VI conciliation and arbitration powers available in the context of section 170MX it does not diminish the general prohibition in section 170LA(3) on the availability of section 111(1)(g) in a Part VIB context. The ultimate finding is that section 111(1)(g) applications may not be made in the context of the section 170MX conciliation and arbitration.

PN51

In other words that gives effect to the specific statutory intention that if you’re working with LA you are working in a context in which parliament has addressed the rules in relation to LA and it has said that those rules don’t include public interest considerations and that fits in completely with the scheme of the former Act and if the position is a fortiori we do respectfully submit in relation to that later Act because, as we say, it would be contrary indicated if in relation to this regime we said well of course we can now refer to section 111(1)(e) and dismiss out of hand an application on public interest grounds made under LA. That’s not the idea of the legislation at all in our respectful submission.

PN52

So our fundamental submission in the matter, if it please the Commission, is that the provision that Commissioner Raffaelli considered himself to be acting under was a provision that was not relevant and not available to him and the proceedings are fundamentally flawed, sorry, the decision is fundamentally flawed for that reason alone.

PN53

SENIOR DEPUTY PRESIDENT RICHARDS: Mr Kenzie, can I just ask is it a question of the interaction of 111(1) and (2) of the reform Act or is it a question of we’re dealing with an application of the sort that was on foot and that the powers that ought to be utilised are section 111 of the pre-reform Act in any event?

PN54

MR KENZIE: Yes.

PN55

SENIOR DEPUTY PRESIDENT RICHARDS: Or you’re coming to that?

PN56

MR KENZIE: That really is the point that I was seeking to make and perhaps not clearly enough. But our contention is that what parliament has done is to retain the integrity of the regime for pursuing section 170MD(6) applications and maintain the regime which section 170LA operates and the schedule of the current Act specifically identifies those provisions as amongst the provisions that are retained in their existence, notwithstanding the Work Choices legislation. And because the schedule includes preservation of the sections that allow those provisions to operate section or clause (2)(i)(r), obviously the machinery in relation to an application under LA is also retained.

PN57

So if I understand the way in which the Commission’s putting the question to me the answer is that it is a matter of construing the Act on the basis that parliament has intended that that regime, including the restrictions in LA, would be applicable to preserved applications under LA and that that is a matter of statutory intention that is the ......

PN58

SENIOR DEPUTY PRESIDENT RICHARDS: My question is probably a bit wider and that is that when a member is dealing in all respects with an application under the former Part VIB as it was, all the procedural and substantive powers that they exercise, that is to hear, to gear it in place procedurally or in a more substantive area of 111, are powers of that entire array which are derived from the pre-reform construction of 111 and not in any way on the current 111 post reform?

PN59

MR KENZIE: We would not contend to the contrary. For example, it’s not only 111(1)(g) that would be addressed, but 111(1)(g) is a pretty good example because we would not and could not contend that there would not be a power in a LA case to refrain from hearing, that being the power that came from the previous provision. And analytically if there was a power to sit it in place or adjourn and the like that was a power that’s discernable in the former section 111 which would pick up in the same ways in relation to an LA proceeding.

PN60

SENIOR DEPUTY PRESIDENT RICHARDS: And there would be an argument, I would presume, that schedule 7 would never have done the work of that section at (2)(i)(a) by preserving a reference to a matter in which section 111 could never have applied. It would have been a redundant Act and preservation unless 111, pre-reform 111, was to apply.

PN61

MR KENZIE: That's right.

PN62

SENIOR DEPUTY PRESIDENT RICHARDS: Is that your argument or a by product?

PN63

MR KENZIE: It’s really the nub of the arm of the argument. We say that this approach is consistent with that reasoning. It’s consistent with the reasoning that flows from an understanding of the relationship between the pre-reform Act and the Work Choices Act. And in a global sense, if I can put this, on any view the federal legislation that’s been at progression and at least since 1988 through ’93, ’96 and 2006 a decision of the enhancement of the capacity of parties to agree and that their argument to and instead it’s in relation to their agreement to be facilitated. It would not be consistent with the thrust of the Work Choices changes that were made to proceed on the basis that regardless of what the language said that the effect of the Work Choices was to reintroduce the capacity to allow public interest arguments to intrude in an LA proceeding.

PN64

It’s a matter of the overall structure of the legislative change that that would not be suggested and the language is consistent with that. So that is, in essence, what we have to say about the matter. We say that the general powers it would not be reintroduced and the notion that current 111(1)(g) in engaged is not an appropriate approach. It’s not consistent with the approach in the current case and it’s not consistent with the general notion that if you have a specific statute that deals specifically with a topic and says look, when you’re dealing with X in particular you’re not to do Y, that you can then say well look, notwithstanding that specific language there’s a general power that somehow sits over here in a later Act. That would not be suggested.

PN65

Could I say something about - I'll come to the factual matters as briefly as I can. The proceedings in the matters really thereto and in this regard it’s obviously the present appeal involves a dispute between the parties as to matters including the question of whether procedural fairness was afforded to Qantas and we have submitted that it’s obviously necessary for the Commission to have an understanding of the nature of the proceedings and their background because this proceeding was dismissed briefly on the day that it came on for direction, amongst other things, for programming. In this respect we seek to adduce as evidence and to have received in the appeal under subsection (6) the affidavit of Ms Phoebe Emery of 15 February 2007 and the annexure thereto.

PN66

And as we indicated before that’s the matter which is not opposed by Mr Nolan.

PN67

MR NOLAN: There’s no objection to that and nor do I require Ms Emery to cross-examine.

PN68

SENIOR DEPUTY PRESIDENT HARRISON: Thanks, Mr Nolan.

PN69

MR KENZIE: I’m grateful to my learned friend. Now, this affidavit identifies, amongst other things, the relevant matters - I’m sorry.

PN70

SENIOR DEPUTY PRESIDENT HARRISON: That’s all right. We - what’s the terminology - we admit the affidavit as further evidence.

PN71

MR KENZIE: I’m grateful to the Commission. The affidavit identifies, amongst other things, relevant matters leading to the proceedings on 30 November and obviously it’s relevant to an understanding of just how the parties, what the position of the parties was in approaching that proceeding. Could I direct the Commission’s attention to some salient parts of the affidavit. It’s really in two parts. Firstly there is material in the affidavit in the form of the witness statement of Mr Hailes which is PE5 to the affidavit which, if the Commission is of the view that it needs an understanding of the background to the matter and the general issue in relation to pattern protection and the circumstances in which the matter arose.

PN72

That annexure refers to the fact in paragraph 3 that negotiations for a new EBA commenced in 2004, there were negotiating teams and there was material passing between the parties and the log of claims including claims relating to pattern protection recovery and you’ll see that in paragraph 6 and the details of the claim in full in paragraph 6. In paragraph 7 and following the Commission will see there is a detailed discussion in Mr Hailes’ affidavit of the system of pattern protection. And as I say, unless the Commission feels it’s necessary either now or at some later stage in the proceeding I wasn’t going to rehearse the detail of pattern protection other than to say that it is a system that provides and has historically provided for an appropriate means of organisation of the operation of airline crew, Qantas crews, and provides in relation to a relevant period that where through unexpected developments a senior pilot whose pattern is not able to undertake the anticipated activities then that pilot is protected and not prejudiced by virtue of those eventualities, sickness and the like and unavailability of aircraft.

PN73

But the EBA has always maintained a regime for recovery of periods of loss so that there is a balance in the system and the EBA has always provided that Qantas during the relevant period of pattern protection can say right, well you weren’t able to work during that period so we can require you to work in the simulator or do something else. And historically that’s always been the case as the affidavit reveals. In relation to certain circumstances where the pattern protection occasion was over 25 hours, but Qantas desired to actually have the position that prevailed where the pattern protection occasion was over 25 hours become more general, become completely general and the EBA seven negotiations were all about that.

PN74

It wanted to be able to say to pilots in any particular pattern protection period look, we want to recover two periods from you as we always have in certain circumstances and that was negotiated out. There’s no doubt that the parties agreed to do that. That led to the dispute in the present case where at least Captain Lunt was maintaining the position that whilst that was agreed to it didn’t involve the agreement on the part of the organisation to allowing Qantas to have two non-simultaneous decisions to recover during a period. It’s that dispute. And the affidavit then rehearses not only the system of pattern protection, but the affidavit was an affidavit filed in relation to the MD(6)(a) case by Qantas in which Qantas sought to call evidence before the Commission to the effect that Qantas had actually confirmed through discussion with the negotiating team that that was exactly what was intended and the like.

PN75

So that’s the nature of Mr Hailes’ affidavit and we think that would be a sufficient description for the purpose of the exercise in the present case. The other aspect of Ms Emery’s affidavit goes to the proceedings and if I can just take the Commission to the relevant chronology as briefly as I can. Obviously the parties have been in dispute over the relevant clause, clause 27.16.5(f)(i) and that clause, as Qantas say in its written submissions paragraph 1.1, covers approximately 1600 pilots employed by Qantas. The dispute was not able to be resolved by the Commission under section 170LW as the Commission didn’t have the power to determine the matter by private arbitration under the dispute resolution procedure of the EBAs.

PN76

So on 22 August 2006 Qantas, as Ms Emery’s affidavit states, filed its application under MB(6)(a), the preserved provision, and subsequently as you will see, I won’t go to the detail again, but from paragraphs 8 through to 18 of Ms Emery’s affidavit steps were taken to program the matter including the filing of the witness statements including that of Ms Hailes. So the result of that was that the AIPA was in possession of Qantas’s evidence and was due to file any evidence in response that it desired because the evidence of Qantas was look, here’s the evidence of the negotiating team on both sides and this is what we say it said.

PN77

So AIPA was due to file a response, it sought a number of deferrals as you will see from the materials in Ms Emery’s affidavit and ultimately had filed no evidence at least by 16 November 2006. Then on that day a letter, which is the letter identified in paragraph 19 of the affidavit as PE14, was sent by my learned friend’s solicitor to Qantas and if the Commission briefly looks at PE14 the Commission will see that what it does is it does a number of things. It says that they’re acting, it says that they are instructed to issue proceedings in respect of their client’s claim that Qantas had breached the relevant provisions of the certified agreement because it had asked Captain Lunt on more than one occasion during the protected period to undertake activity.

PN78

The letter disputed any claim that there was an ambiguity or uncertainty and it’s said that the view of the AIPA was it would make sense for the interpretation and enforcement to be determined by the court and sought advice as to whether Qantas was amenable to having the matter determined by the court and sought an indication as to whether Qantas would be prepared to discontinue by consent and said if you’re not then proceedings would be issued in the court and seek that the Commission refrain from hearing the matter in accordance with section 46(1)(e) of schedule 6 of the Workplace Relations Act, look forward to hearing from you. Now, could I make some observations about that.

PN79

The Commission will immediately see the reference to section 46(1)(e) of schedule 6 and that’s a reference to the current Act, not referred to in dispatches today for reasons that will become clear. It is an inapplicable and ultimately irrelevant provision that doesn’t apply in any way to applications made under Part VI, namely the Qantas application. But nonetheless that’s what was identified then. The second thing of course you would notice is that apart from the fact that it referred to section 46 it was an indication that if there was no consent what would happen was there would be an application that the Commission refrain from hearing the matter before it. So at no stage it was suggested that there’d be some application for dismissal of proceedings at all.

PN80

Now, Qantas replied to that letter, as the affidavit records. That is PE15 and in PE15 Qantas indicated that it didn’t consent to the matter being discontinued, wished to have its application determined, says that the application was filed on 22 August and that its evidence was filed and served:

PN81

The original hearing date of 6 November was vacated at your client’s request to allow further time for your client to prepare its evidence due to be filed and served on 10 November. We now understand your client doesn’t intend to file any evidence in the matter. Accordingly we have requested the Industrial Relations Commission list the matter for hearing as a matter of urgency.

PN82

And that communication was made on 20 November. At the same time, although this wasn’t known to Qantas at the time, AIPA sent a copy of its letter of
16 November to the Commission and you won’t find that from Ms Emery’s affidavit but you will find that from paragraph 13 of the AIPA written submissions filed in this matter. And both that material shows that it was simply the letter of 16 November and there’s no suggestion that anything else was sent to the Commission. So as at that stage the Commission had before it correspondence saying we’re going to commence proceedings in court, we foreshadow of some application refraining under section 46 of the current Act and the AIPA knew that Qantas did not consent to its proposal to discontinue and the Commission had also been forwarded a copy of the Qantas position.

PN83

But no application had yet been made. What followed was that on 23 November a Commission listed note advising the matter was listed for programming on
30 November at 9.30 was sent to the parties and you will find that at PE17. If I haven’t made it clear AIPA’s letter sent to the Commission was in response to the letter that it had from Qantas. So the position as at that date was that Qantas had said look, we don’t want to discontinue, AIPA said we’re sending our letter to the Commission and as I’ve said previously Qantas had written to the Commission as well on 20 November indicating its position. That was the position as at that time.

PN84

Then on the 23rd the Commission listed the matter for programming and as the transcript subsequently revealed on 27 November an application was filed by AIPA in the Federal Magistrates Court. So that was the position that prevailed at the time that the matter came on before Commissioner Raffaelli on 30 November and it’s against that background that we would ask the Commission to consider - I'll be as brief as I can in relation to this, but the transcript’s quite short - to consider the transcript of just what then followed. To encapsulate in advance we think that what followed in relation to this proceeding was that the proceeding was summarily dismissed in circumstances where there was no application for dismissal before the Commission, no suggestion that the matter would be dismissed before the Commission parentally dismissed it at the end of the programming hearing.

PN85

Could I again, with an undertaking to be as brief as possible, take the Commission to the relevant parts of the transcript which is contained in the appeal book behind the index. This reveals that the matter came on on 30 November at 9.30.
Ms Bernasconi appeared for Qantas and Captain Lunt for the organisation.
Ms Bernasconi in paragraph number 4 confirmed that the matter was listed for programming this morning in response to Qantas’s fax and then the Commissioner at paragraph number 5 indicated that it had, to Captain Lunt that:

PN86

The Commission had seen the correspondence from your lawyers.

PN87

Captain Lunt then recorded the events that had followed including the fact that in the meantime AIPA had filed its application in the Federal Magistrates Court. The Commissioner in paragraph number 8, he recorded in paragraph number 7 that AIPA hadn’t actually received the documents from the filing documents. The Commissioner had asked if Qantas had seen it, Captain Lunt said no, they hadn’t even received confirmation back from the registry. In those paragraphs and again if you look over to paragraph 19 on page 3 Ms Bernasconi confirmed unremarkably that Qantas was not on notice of the application having been filed but in any event didn’t change Qantas’s position.

PN88

Just reverting to paragraph 14 for a minute the Commissioner opened the question of whether the dispute that existed between the parties wasn’t stopping Qantas actually going ahead and applying the agreement in any way that it thought fit, or continuing the breach as the AIPA put it in the middle of that page. In paragraph 19 Ms Bernasconi, as I said, said there was no notice but indicated that if the matter was to go in Qantas’s favour, that’s the MB(6) matter, then retrospective orders from the date of certification could be made fixing up the ambiguity which would mean that there wouldn’t be any necessity to go on with any proceedings at all.

PN89

The Commissioner in paragraph number 20 asked this question observing that Qantas is doing what it wants to do at the moment:

PN90

Why should we proceed when they have taken this other action that might settle the matter? If you're wrong you'll be corrected and if you're not, well, then you needn't deal the MD matter, will you? You won't need any adjustment by the Commission.

PN91

So the Commission was then apparently proceeding on the basis that procedurally if you dealt with the Magistrates matter first, well you wouldn’t need to continue with your MB matter. Ms Bernasconi referred to ambiguity and saying they wanted it fixed up. The Commissioner ascertained that the agreement expired on 31 December and that’s at paragraph 23 and paragraph 24 observed that that’s part of the answer. In other words this agreement hasn’t got long to go.
Ms Bernasconi addressed on the question of whether the expiry date was material because the history was one that involved considerable periods of negotiation after the expiry date.

PN92

There was some discussion about retrospective effect and then, I don’t read it all, at paragraph 29 the Commission said:

PN93

My tendency, Ms Bernasconi, is that I ought not proceed. I just think that they've now filed, presumably they'll be up and running, there's no prejudice to you.

PN94

Ms Bernasconi says:

PN95

Yes, there is clear prejudice which -

PN96

And I don’t read that, that was sufficient to put about prejudice based on the fact that there were proceedings on foot which would be deferred. And then
Ms Bernasconi in paragraph 32 says:

PN97

It's not clear to me on what basis AIPA is making their submissions to you. If there's a formal application that they are making I would suggest that they might like to articulate which particular provision they're relying on in relation to this matter in asking you to refrain from dealing with the matter because we say there's a question about that and in any event, our position is clear, Commissioner, that it's our application -

PN98

Et cetera. The Commissioner identified, because he’d read the correspondence, that they were relying on section 46(1)(e). Captain Lunt then says:

PN99

Actually, there’s been an amendment to that.

PN100

Whatever that means:

PN101

That referred to a division 3 certified agreement. I have got the correction that has to be filed, if I could direct you to that?

PN102

I don’t think there’s any suggestion that anything was then filed, but that’s what was said. And Captain Lunt said:

PN103

In actual fact the correct section for that, apologies for that not being corrected beforehand, is in actual fact section 111(1)(g)(v)(a).

PN104

There’s a reference to (g) at the bottom of the page and the Commissioner asked which Act was he talking about, Captain Lunt said the Workplace Relations Act and the Commissioner wanted to know whether it was the new or the old Act.
Ms Bernasconi thought it was the old Act and Captain Lunt was apparently suggesting that it’s still in operation and then Captain Lunt referred to (g), and he’s plainly referring to the old Act:

PN105

Dismiss a matter or part of a matter, or refrain from further hearing or from determining the industrial dispute or part of the industrial dispute, if it appears.

PN106

(v):

PN107

that a party to the industrial dispute has breached an award or order.

PN108

And the Commissioner immediately realised, if you’ll see, that can’t be, you couldn’t act on that because the Commission, at paragraph 55, couldn’t determine that until the court determines. Captain Lunt accepts that. And then the Commissioner again refers to section 46(1)(e) of schedule 6 and there appears to be some belief that’s somehow relevant again. Then the Commissioner is then told that that refers to unincorporated bodies and then the Commissioner then refers to 111, the big 111 which you haven’t got but which I have. Ms Bernasconi says well, if you’re talking about the new one there’s no power anymore in relation to, the Commission must dismiss a matter for one of those reasons, (e) there is no power to refrain from hearing a matter as there previously was.

PN109

So Ms Bernasconi was quite correctly saying look, if we’re now talking about the new Act you can’t refrain. That’s understandably put in that because that was the perceived application before the Commission. And then the Commissioner then referred to the fact the Commission could adjourn the proceeding at any time and place and there couldn’t be any dispute. Again this is referable again back to the question the Commission asked me beforehand. It wouldn’t matter whether you were talking about the old Act or the new Act, there would be a power in the Commission to adjourn the proceedings and no one can contend to the contrary. Captain Lunt appeared to be suggesting in the incomplete sentence in paragraph 65 that that might have been what he had in mind, but that wasn’t completed.

PN110

Captain Lunt said, going back to the point that Qantas is suffering no detriment, there was then a discussion in which Captain Lunt made statements from the Bar table that no one else was affected by the dispute because business was proceeding as normal. Ms Bernasconi put submissions to the contrary saying there is inconvenience, that they’ve come along some months down the track, et cetera. So there was submissions by Ms Bernasconi and these were directed to the question of whether the Commission should cease dealing with the matter. If you look at paragraph 74:

PN111

I don’t think the Commission should be persuaded that it should cease dealing with this matter on the basis there is some other proceedings on foot.

PN112

And reference to a long line of authorities and the like. In paragraph number 77 again and again, Commissioner, I didn’t quite get to the bottom of the particular section that AIPA is relying on to ask the Commission to refrain from dealing with the matter and can I just invite the Commission to notionally put a line under the transcript at that stage which is the last stage before the decision was made. Ms Bernasconi is putting submissions in response to that matter which was before the Commission. There was clear confusion about which provision of the Act AIPA thought it might be relying on, reference to different provisions, but AIPA was coming before the Commission and seeking in some way, shape or form to have the Commission cease dealing with the application that Qantas had validly mounted before the Commission.

PN113

Ms Bernasconi was understandably addressing in relation to that question and saying look, don’t put our proceeding off on the basis of what you’ve been told. That’s what the debate was about, although there was confusion about the provision that might have been able to be relied on in relation to that manner including submission by Ms Bernasconi that you couldn’t refrain under the new Act. And then the Commissioner dealt with the matter in this way. He said he didn’t need to hear from Mr Lunt - sorry, I think and then he made some comments which were critical of the association’s position:

PN114

I think the association ought not have changed its position in midstream. It seemed to be agreed that it would come to the Commission for ambiguity determination. You can sit down, sorry. And so that ought not happen. But I do in the circumstances propose to dismiss the matter because I don't think it's desirable in the public interest because I think the association is entitled to pursue the matter in court in breach. They may lose on that.

PN115

Et cetera. So he then indicated what the Commission proposed to do and he said in paragraph 79:

PN116

I don't see it as any prejudice to Qantas other than it's prepared its case and for that reason I think AIPA ought be somewhat castigated for not doing what it's done now earlier. But other than having prepared the witness statement Qantas is quite able to continue to roster people as it has done.

PN117

No refusal to cooperate, et cetera. And then the sentence concludes:

PN118

There need not then be a change to the certified agreement in any way, so on that basis the matter is dismissed. .

PN119

Ms Bernasconi then took one last step. She asked the Commission to clarify whether the Commission was exercising its powers under 111(1)(e), the Commission said:

PN120

Yes. I hope that's right but yes.

PN121

On that basis Qantas’s proceeding, which is a proceeding that was commenced under a provision of the Act that was designed to allow for prompt and expeditious resolution of difficulties about construction of certified agreements, was completely dismissed and on the basis that the public interest considerations apply. We put our submissions already in relation to the statutory position. In relation to the obvious problems that flow from those procedural matters could I make these submissions by reference to our written submissions in the proceeding and I'll do so as briefly as I can. In the first place we say that since our written submissions were file and we now understand that the letter of 16 November was the one that was forwarded to the Commission by AIPA on 20 November and so the Commission is fully apprised of what was before Commissioner Raffaelli on the day that it came on.

PN122

As at 20 November no application had been made to the Magistrates Court and plainly we do submit there was no application to the Commission on foot as at the time the proceedings came on on 30 November. There was no application before the Federal Commission, simply correspondence from AIPA foreshadowing a possible application under a section of the Act which was entirely relevant in any event. Certain things were done. Statements were made from the Bar table by Captain Lunt. There could be no complaint that a representative of the organisation makes statement from the Bar table. Statements from the Bar table are received at all times. We acknowledge for the purposes of our submission, if we can make it as clear as we can, certain matters that are outlined in AIPA’s written submissions we acknowledge and must be acknowledged for the purposes of these submissions, that the Commission is not bound by the rules of evidence and was in charge of its own procedure.

PN123

We acknowledge that provisions such as section 110(a) to (c) relating to the duty to act with equity and good conscience applied and of course we rely on that amongst other provisions. We acknowledge that the Commission could receive submissions from the Bar table and act on them as it did. We acknowledge that Qantas did not seek an adjournment of the proceedings before the Commission announced its decision. So in other words I’ve taken the Commission, I hope carefully enough, to the transcript to show what happened. Ms Bernasconi was heard in relation to a developing proposal. Although the matter was listed for programming a developing proposal that something happened in relation to the proceeding notwithstanding the fact that it was a programming conference and that there be no notification to Qantas prior to that day, but there would be an application made on that day to do anything.

PN124

In fact there was no application before the Commission at the time that the matter came on for program. Ms Bernasconi was heard in relation to the matter such as it was before the Commission as developed on 20 November. But Qantas was never apprised of the fact that any form of application was being made to dismiss its application. Qantas was never heard in relation to any suggestion that any application that might be before the Commission should be amended to provide that Qantas’s proceedings should be wiped from the board as opposed to adjourned. Qantas was given no opportunity to address in relation to prejudice that would exist in relation to the dismissal of its proceeding completely.

PN125

If it please the Commission there is and there was always recognised as being a fundamental difference between a decision of the Commission to refrain from hearing a matter and the dismissal of a matter so that even if there’d been a proper application under an available provision for the Commission that day to refrain from hearing, if you could get to the stage of saying that there was an application on foot live and well to be developed that day for refraining from hearing, and we say that you couldn’t, but even if you did it wasn’t an application that was anything like the matter that Commissioner Raffaelli went to on that day.

PN126

We have in our book of authorities sought to provide some references to the Commission in relation to that question. If I could deal with that briefly. It’s a matter that’s been dealt with on a number of occasions, or at least was, in the context of former section 111(1)(g) and if the Commission would be good enough to look firstly at tab 3 of the materials which is the Fremantle Corporation [1953] CthArbRp 170; (1953) 76 CAR 32. The head note point 2 really is the summary of the point where it provides that if a conciliation Commissioner refrains from determining a dispute under section 40(d) as it was in those days he has power to reconsider the question is not functus officio and also that the hearing of a dispute is being completed by another conciliation Commissioner and that conciliation Commissioner can reconsider the question, et cetera.

PN127

The analysis of the Commission in relation to that matter is on page 40 of that tab, if it please the Commission. It’s from about point 2 down where reference to
Mr Stanley arguing that since under the section there was only power to complete the hearing. He had no power to reconsider because there was no power in the Act to reopen at that stage. And at about point 6 the court, as it then was, said:

PN128

We’re of opinion that if a conciliation Commissioner refrains from determining a dispute or part thereof he has power to reconsider the question that is not functus officio. This in fact had been done by a conciliation Commissioner -

PN129

Et cetera. That decision has been referred to in reply and if the Commission would briefly look at the Dalrymple Bay case which is tab 4 of our materials, that is an extensive decision of the Commission dealing with a variety of matters associated with 111 and the like and at page 12 of the print that we have provided the Full Bench said at the top of the page:

PN130

The Commission as currently constituted is of the view that the full bench in Abbot Point did not dismiss the claim. It refrained from further hearing. There is a distinction between "dismiss" and "refrain from further hearing". The former determines an application the latter lets it lie and the possibility remains that it may be revived (see Fremantle). While acknowledging that the overall onus is on the applicant in s.111(1)(g) proceedings there is, to my mind, an obvious need for the CFMEU to satisfy -

PN131

Et cetera. And then at about point 5 of the page the Commission then went to the - I’m sorry, I see it was the Full Bench. It’s got of course Duncan DP’s decision, it was extracted here. In the middle of that page the Deputy President said:

PN132

In my view both the CFMEU and GPA are able to maintain their arguments. Changed circumstances and new facts are by definition incapable of being raised in proceedings which occurred before they emerged.

PN133

So in other words the Commission was addressing this question. The matter wasn’t dismissed. The Commission refrained from further hearing. You could call further evidence to show that the circumstances have changed, it’s just that the evidence you were seeking before doesn’t help us much in these proceedings. That demonstrates the practicality of the difference between dismissing and refraining from further hearing. And finally in relation to the matter we have provided the Commission with a article by Mr Hall as it then was dealing with extensively the various aspects of 41(1)(d) and I don’t know that it will take you much further, but the extensive analysis of section 41(1)(d) on page 54 at about point 3 at the top of the page he says:

PN134

One hastens to add it’s not the practice of the Commission to dismiss a dispute because a dispute is dealt with -

PN135

Et cetera:

PN136

The Commission prefers to refrain from further hearing. Considerations of convenience and costs support that approach. It is difficult to resist the conclusion that once it’s dismissed a dispute the Commission is functus officio. The Commission is not functus officio when it decides to refrain from further hearing or from determining a dispute or part of a dispute. A dispute or part of a dispute continues to exist. If circumstances change the matter may be brought on again without service of a fresh log of claims to create a new dispute.

PN137

In other words had the worst befallen Qantas on that day, notwithstanding
Ms Bernasconi’s protestations during the programming proceeding, it would have been open to Qantas to come back the next day and say look, we want to reopen this matter, our proceeding is still on foot, we want to call some evidence to deal now with what Captain Lunt said and they’d have been entitled to do that plainly because their proceeding is still alive. But Commissioner Raffaelli has killed off the proceeding. So it is not a mere technical distinction that we’re referring to here. It’s a very real distinction and one that can be readily recognised and the differences and consequences can be readily recognised.

PN138

So, for example, if events changes, if there’s delay in prosecuting the Magistrates proceeding, if the Federal Magistrates Court can’t hear the matter for the next nine months, if it turns out that what Captain Lunt was saying was not the whole story and in fact there are other issues and wider issues or any matter, it won’t help Qantas in relation to this proceeding because it’s been dismissed in the circumstances that prevailed and that was a fundamental denial of the requirements of procedural fairness. We acknowledge of course the power of the Commission to adjourn to any time and any place.

PN139

If the Commission had merely adjourned the proceedings then we’d have been in a different ball park and it would have been on any view it would have raised more difficulties for Qantas even if they had been surprised by an application for an adjournment. The Commission no doubt has heard many attempts to appeal for procedural matters like that and the arguments in relation to those would be well known, but they are not relevant here. The fact that the Commission did have another power under which it could have acted would only be relevant if it had another power which it could have acted under which it could have acted to the same effect. That is another power to dismiss.

PN140

The reliance which apparently AIPA now seeks to place on the power of adjournment does not help. Indeed you might read that transcript and think that Captain Lunt, having been faced with the statutory difficulties that were piling up during the debate, was attempting to say look, perhaps the matter might be adjourned, that’s really what we’re about. You might read the transcript that way, but that’s not what happened. The Commission never allowed an amendment resulting in there being before the Commission an application to dismiss the appellant’s proceeding. All that could be said is that it might be thought that the Commission was acknowledging an attempt to amend a reference to section 46 to a reference to old section 111(1)(g), but certainly not any attempt to amend to apply to dismiss the proceedings.

PN141

If it please the Commission the Commission has the essence, I think, of our submissions in relation to procedural fairness. We had apprehended that the matter clearly raised questions which were setting the Commission in relation to the relevant provisions that would apply or not apply in the circumstances that prevailed and we haven’t, apart from what we’ve said in our written submissions, we haven’t sought to further address matters of leave to appeal in those circumstances. We have apprehended from AIPA’s response, which is a substantive response, that that is a reflection of the fact that there are statutory provisions of some significance that are in play here and we don’t understand that leave is contested.

PN142

There’s nothing that emerges that suggests that it is. If it were, well, the Commission has our submissions in relation to the significance of the questions as to the rulings that apply and whether the Work Choices legislation has impacted on LA in the way that it has. But that is not inconsistent with our earlier submission that if the Commission is with us in relation to the procedural fairness aspect, and we do respectfully submit - if I had a dollar for every time an advocate has said that this is a strong case - this is a strong case. The denial of procedural fairness is clear. They removed us from the face of the record. And if the Commission is so satisfied then - and I don’t offer this as an inducement - but it is the fact the Commission would be able to dispose of the appeal on the procedural fairness grounds without determination of the statutory matters. If the Commission proceeds to the statutory matters it has our submission.

PN143

SENIOR DEPUTY PRESIDENT HARRISON: I omitted earlier to mark a couple of documents.

EXHIBIT #A1 APPELLANT’S SUBMISSIONS FILED ON 16/02/2007
EXHIBIT #A2 AFFIDAVIT OF PHOEBE EMERY DATED 15/02/2007

PN144

SENIOR DEPUTY PRESIDENT HARRISON: We might just take a short break before we hear you, Mr Nolan.

PN145

MR KENZIE: Yes. Could I just say one thing before the Commission does take that short break and that is that although it may be implicit but not explicit from our submission if the Commission is with us in relation to the appeal ultimately our submission would be that the matter would be determined before a member of the Commission, but because of the matters that have fallen from the transcript it should need to be as a matter out of fairness a member of the Commission who hasn’t made a determination in relation to the appropriateness of disposing of the matter in the way that it does. If it pleases.

PN146

SENIOR DEPUTY PRESIDENT HARRISON: We’ll adjourn for, say, 10 minutes.

<SHORT ADJOURNMENT [11.30AM]
<RESUMED [11.48AM]

PN147

SENIOR DEPUTY PRESIDENT HARRISON: Mr Kenzie.

PN148

MR KENZIE: If it please the Commission. Just before Mr Nolan commences could I just amend the submission that I made before the Commission adjourned. My instructions are that Commissioner Raffaelli is in fact well seized with the history of this matter. If the Commission was in favour of our submissions and the matter had to be remitted on reflection our final position is that we would have no objection to the matter going back to Commissioner Raffaelli. He is well seized with the matter and we apprehend that any application that might be made to him would be processed, if that were the future, would be processed on the basis that we could properly address and we would be quite confident that it would be addressed on a proper basis.

PN149

So I withdraw the submission that we made before and we would have no objection to that course of action if the Commission got that far.

PN150

SENIOR DEPUTY PRESIDENT HARRISON: Thanks, Mr Kenzie. Mr Nolan.

PN151

MR NOLAN: If it please the Commission, could I hand up our folders of the authorities referred to in the written submissions.

PN152

SENIOR DEPUTY PRESIDENT HARRISON: Thank you.

PN153

MR NOLAN: Your honours have also, I understand it, pursuant to the directions a copy of the respondent’s outline of submissions dated 22 February 2007 which was filed by my instructing solicitors.

PN154

SENIOR DEPUTY PRESIDENT HARRISON: Yes, we do. I'll mark those,
Mr Nolan.

EXHIBIT #R1 RESPONDENT’S OUTLINE OF SUBMISSIONS DATED 22/02/2007

PN155

MR NOLAN: Now, because Mr Kenzie’s really canvassed the context in which the matter arose it’s not necessary for me to go over that ground. As Mr Kenzie said I think quite correctly there are really two points and one is the statutory point and the second is the procedural fairness point, if you like. So I'll go straight to those without going over the ground that’s already been covered, if I may. Can I first of all also say that I won’t read out the written submissions that have been filed, but recommending to you and treat it as having been read, if I may. I may simply refer to and emphasise some of the aspects of the submissions.

PN156

SENIOR DEPUTY PRESIDENT HARRISON: Yes, you can assume we’ve had an opportunity to read them prior to this hearing.

PN157

MR NOLAN: And in addition to those written submissions there is one other authority which is in that bundle to which I'll refer which I contend is one that really allows us to get around or overcome, if you like, the potential issue about statutory provision which the Commissioner apparently understood that he was moving under. And I agree with Mr Kenzie, however, that if you were minded to deal with the appeal on the second point, that is to say on the procedural fairness point, well of course you wouldn’t be ready to canvass issues of statutory provision, at least I suppose that would be something of a relief because as we all know over the years these statutory re-enactments have been the devil by transitional provisions.

PN158

I can remember being involved in cases including one that went to the High Court in relation to the last lot of transitional provision. I think that was finally disposed of only a couple of years ago. So these things have a bit of a life. Now, in turning to that statutory point much has been said to you about an apparent misconception about the proper section of the Act, either the old Act or the new Act, which the Commissioner acted under or apparently thought he was acting under.

PN159

SENIOR DEPUTY PRESIDENT HARRISON: I suppose the only question though, if we were persuaded by the procedural point and didn’t deal with the statutory point the possibility that it arises again before the Commissioner in some form or another.

PN160

MR NOLAN: Well, I suppose it’s a possibility, but one would have thought that the parties if it went back would be well and truly prepared to address the statutory framework and would have anticipated to do it in excruciating detail, having had the benefit of what’s occurred so far.

PN161

SENIOR DEPUTY PRESIDENT HARRISON: I see.

PN162

MR NOLAN: Now, on this statutory point in the folder of authorities that I’ve handed up to you there’s a decision that wasn’t on the list of authorities, filed and not mentioned in the written submissions, Queen v Moore and others ex parte Graham and others. This was an application for prerogative relief that went to the High Court in one of those notorious oil industry cases that occurred in the late ‘70s and you don’t need too much to trouble yourself with the detail of the tooings and froings that occurred before the Commission and particularly before the president his Honour Moore J, but really only really attend to the core of the decision which really dealt with this issue of the exercise by the Commission to jurisdiction where there was some apparent misconception or an arguable misconception about the section of the Act under which the Commission had moved and there was just such a dispute in this particular matter that it then would go to the High Court and that was whether or not the president had done what he did under one section of the Act and not another.

PN163

Now, his Honour Gibbs J wrote the leading judgment which was agreed to by the other members of the court and the conclusion his Honour Gibbs J came to was that it was perfectly permissible, or at least it was a bar to an application for prerogative relief in the High Court, that the Commission had acted within jurisdiction, notwithstanding the fact that there may have been some apparent misconception about which section of the Act the Commission had acted. In other words there was an available power to deal with the matter and wasn’t to the point that the Commission may have thought that it was dealing with a matter under an alternative section of the Act that might have been more contentious.

PN164

And the passage to which we rely is the one commencing at the bottom of page 171 of his Honour’s judgment where he says that it’s incontestable if the proceedings before the Commission related to an industrial dispute as defined in the Act and so on and over the page his Honour goes on to consider the applicability of section 41. At the bottom of that page the passage says:

PN165

I am not satisfied on the material before us that in making and varying the interim awards the Commission intended to exercise the power given by section 28, but I’m prepared to assume that it did so intend and will consider the matter on that assumption.

PN166

And then his Honour goes on to consider it on that alternative assumption and comes to the conclusion that it didn’t matter because the Commission nevertheless had the power to deal with the dispute, notwithstanding there may have been a misconception about precisely which section of the Act it was able to invoke. And so it’s our submission we would suggest that that’s really the solution, if you like, to any quandary that might be thrown up by an apparent confusion about which section of the old Act or the new Act the Commissioner moved under because he had an available power to deal with the matter the way he did that was already there contained within section 170MD(6) of the old Act.

PN167

Because 170MD(6), as you’re aware, involves the exercise of a discretion by the Commission. It says the Commission may on application by any person bound by a certified agreement by order vary a certified agreement and then it goes on to indicate why it can vary a certified agreement. But the critical word to concentrate upon is “may”. There is an undoubted discretion, and indeed it can be regarded as an unfettered discretion within the confines of section MD(6), if the Commission exercises to deal or not deal with a matter and of course a concomitant to that power is the power for the Commission to adjourn any proceeding that’s before it.

PN168

So in our submission we say there was an ample basis upon which if the Commission was minded to do so on discretionary grounds including a discretion which went to the desirability of dealing with the matter under section 170MD or allowing the court to deal with the matter there is that undoubted discretion that was available and open to the Commission to use if he was minded to do so. And we say that there’s no real practical or tangible distinction between moving the way he did, albeit arguably under a misconception about which section of the Act he was relying upon, and the general discretion which he enjoyed under the section to deal or not deal with the matter as he saw fit, so long as the decision he made was consonant with the exercise of that general discretion and that would seem to be consistent with the tenor of the exchange that took place and the ultimate decision that he made to dismiss the matter because he thought that the Federal Court or Federal Magistrates proceedings were a better avenue through which to determine the matter and apparently a dispute between the parties.

PN169

And in so doing, of course, he took into account the kinds of things that he would be expected to take into account, namely whether or not there was any prejudice created to Qantas in the consequence of his decision and having satisfied himself on the basis of really uncontested statements from the Bar table that there was no real or practical problem that troubled Qantas with respect to the operation of the agreement and the way that Qantas regarded it ought to operate. He took the view that it was better for the court to make the decision that it was expected to make because it would provide some definitive guidance to the parties as to the meaning of the clause.

PN170

Now, of course it’s not to the point to say as has been suggested, in our submission, that that would have really been the curtains, if you like, for Qantas because the matter was then settled for all time because it would have been open to Qantas to come back, in our submission, at least after the court decision was handed down and still have available to it an argument that the court decision was one that was inconsistent with what it contended to be the actual intention of the parties in the making of the agreement and that any ambiguity ought to be varied and indeed I, for the purpose of the argument at least, it seems that that variation could occur retrospectively to the date of the making of the certified agreement.

PN171

So the parties would be, in my submission, doubly advantaged because Qantas would not have lost an opportunity to ventilate its concerns ultimately. It may have succeeded in the Federal Court and that would have put an end to the matter, but on either basis the opportunity would not have been foreclosed because questions of functus officio would only arise when one interrogates the nature of the proceeding and in circumstances where Qantas’s substantive application would not be heard and indeed that stage could not even be reached because no evidence produced by evidence had been produced before the Commission or event tendered or sought to be relied upon.

PN172

It couldn’t be said that Qantas had some how or other have put forward a substantive case that would have been dismissed and there being no statutory bar that Qantas making a further application or other applications there was no real prejudice of the kind created for Qantas like the sorts of prejudice referred to in those old section 41(1)(d) cases where the Commission took the view that once the matter was dealt with to the point of dismissal rather than a decision made to refrain from hearing the matter that that was the end of the matter.

PN173

There’s nothing at all stopping the parties from making success of applications under 170MD(6) apart, one would think, from some decision about abuse of process, but Qantas would not have lost an opportunity to come back in the event that the Federal Court was either tardy or alternatively the Federal Court proceedings determined the matter in a way that still left open the scope for a section 170MD application. So it could not be said that there was an element of finality of the kind that’s been suggested and of course that allows us to say well, given that a procedural decision of this kind could have been made well within the powers available to the Commission under section 170MD, even a decision to dismiss the matter in the way that it was dismissed he had that power available to him, notwithstanding that he may have thought that he was acting under another power.

PN174

So there’s no bar of the kind suggested to the Commission to making the decision he made so long as he had the power, albeit that the power or the precise basis of the power may have been somewhat confused. Now, as to the substantive or the procedural fairness point the Commissioner made it clear that, or the record makes it clear, that there was no entering upon the substantive merits of the application, but the Commissioner was obviously aware of the fact that the application was on foot. He was nearing to propose to hear a directions hearing to deal with it, he received by that stage the material that has been tendered this morning, albeit that that material has not been tendered, it had been filed and is in the Commission’s file.

PN175

So it can’t be said that he had no knowledge at all of the merits of the matter before him but that he canvassed at the time the most expeditious way of going forward with the matter, that is to say whether or not it was sensible to proceed with the section 170MD matter or whether in the light of the application having been made to the Federal Court the preferable course was to allow that to take its course and to, in effect, put off the section 170MD application and allow the parties to revisit the matter once the Federal Court application had been determined. So to that exercise, in our submission, it wasn’t really necessary for him to view upon the merits of the Qantas case, if you like, and it was a pragmatic decision made on the basis of what was best suited to deal with the dispute between the parties.

PN176

And while ever an application to the Federal Court was likely it would have always been known to the Commission to defer its consideration of any section 170MD application to await a decision of the Federal Court and the tenor of the exchanges between the Commissioner and Ms Bernasconi is consistent with that approach and Ms Bernasconi was obviously well aware of what the Commissioner had in mind, not just because he telegraphed his disposition to paragraph 29 and made it quite clear what he was tending to think, but he said:

PN177

My tendency, Ms Bernasconi, is that I ought not proceed -

PN178

And then he goes on and Ms Bernasconi then had, in our submission, an ample opportunity to persuade him why that predisposition was one that ought not be followed through with and she had a good opportunity to say so and did so, in fact, at paragraph number 30 and paragraph number 32 and so on in those exchanges and quite correctly talked about the various sections of the topic of discussion. So it’s not as though Qantas was deprived of an opportunity to address the future conduct of the proceedings and of course was represented by a legal practitioner in proceedings where any legal practitioner would be well equipped, in our submission, to deal with the issue raised by the Commissioner at paragraph 29.

PN179

So they had an opportunity to put their best foot forward, if you like, on the question of whether or not the Commission should, in effect, defer any consideration of the section 170MD application pending the matter going to the court. They did so and of course in their result, notwithstanding Ms Bernasconi’s robust submissions to the Commissioner, he decided against Qantas and decided to dismiss the application as he put it.

PN180

SENIOR DEPUTY PRESIDENT RICHARDS: Is it your submission that the exercise of discretion under section 170MD(6) of Part VIB could be used to defeat the exclusion provided for under section 170LA?

PN181

MR NOLAN: It’s not defeating any exclusion, it’s giving him a general discretion to decide whether or not he will deal with the application. So questions of exclusion simply don’t arise when you look at section 170MD(6) standing alone. So it’s not, if you like, it’s not really a back door way of giving life to the old section 111(1)(g). It’s a stand alone discretion, it’s unfettered and it allows the Commission to decide whether or not to deal with the 170MD application. So that even if the Commission comes to the conclusion that there is a relevant ambiguity or uncertainty they’re still not obliged to do anything about it if it decided to feel that - - -

PN182

SENIOR DEPUTY PRESIDENT RICHARDS: Just to return to the original question. But if you posit the expression of the exercise your discretion on the terms of either section 111(1)(g)(iii) or 111(1)(e)(ii) of the former or current Acts and you use that as your discretionary kind of framework, then you go on to exercise of discretion under MD(6). Is that an analogue? Are they analogues then?

PN183

MR NOLAN: Well, they’re only analogues in a very broad way in the sense that similar issues may inform the exercise of discretion in both. But it’s pretty obvious it would seem to us from what the Commission has said that the reason that he exercised his discretion the way he did, even though he framed it as being not desirable in the public interest, was that he was of the view that the union ought to pursue the matter in the court in priority to the matter being agitated under 170MD and he also had in mind of course the fact that the certified agreement was about to pass its nominal term and that of course would be a relevant consideration to whether or not the Commission exercises its discretion under 170MD.

PN184

So the ingredients of the discretion, if you like, that he specifically identified are precisely the kinds of issues one would expect a member of the Commission to have in mind when that Commission member was asked to deal with the matter under section 170MD. So we say that there’s nothing extraordinary about those things and simply because no doubt because he was familiar with the old section 111(1)(g) he used the words “desirable in the public interest”. One really shouldn’t be too bamboozled, in our submission, by that because one looks to the precise reasons he identified for doing what he did and he goes on to say what they are, that is that the association is entitled to pursue the matter in court for the breach and they may lose on that.

PN185

And so he seems to contemplate the fact that the matter might be resolved entirely in Qantas’s favour in the court and that would be the end of the matter, whereas the Commission can only ever give, one can infer, a provisional decision, if you like, about the existence of an ambiguity or uncertainty because that’s a legal question that could be subject to a later leading challenge. So it seems to me from really what the Commission said that there were very real and relevantly connected issues that may be minded to take the course he did. They were directly connected to the question of the section 170 discretion and of course he satisfied himself that there was no prejudice for Qantas because there was no disruption to Qantas operating the agreement the way it had operated it and sought to operate it and there was no quibble about that.

PN186

So there was no immediate disruption to Qantas’s operations and all that was left was for the parties to get a definitive ruling from the court which of course would be the final statement of the meaning of the provision with an air of finality that the Commission could not provide. So what we see readily on that basis, the attraction of taking that course, was in relation to natural justice. We flagged that so Qantas was on notice about what he had in mind. They’d already been on notice by virtue of the letter of 16 November to which you’ve been referred of AIPA’s intention and of course it couldn’t be said that the Commission couldn’t act without some kind of formal application.

PN187

The Commission is not a court of pleading. The Commission could pick up a letter like that and deal with it to make a decision like this, in our submission, notwithstanding that an exemption may have been referred to and notwithstanding the fact that it hadn’t been transformed into some kind of formal application before the Commission. So long as the substance of the matter is clearly communicated, or relatively clearly communicated, and so long as the Commission’s got the jurisdiction and power to deal with the question raised, notwithstanding that it might be somewhat different to what was believed to be the power, it can go and do so.

PN188

And given that the question was a confined question, namely one that said this whole matter should be put over or adjourned or dismissed ending the Federal Court case, that was all that the parties really needed to know to deal with that procedural application, if you like, and the Commissioner had that, Qantas had the benefit of AIPA’s intentions ..... and there’s not much more really to be said. And the Commissioner let Qantas know of his thinking and of course they had every opportunity to say to him well look, that’s not the course you ought to follow and they said exactly that. So we would say that the natural justice point really comes down to this, that natural justice as you’re aware, procedural fairness, depends very much upon the context in which the question arises, the nature in which the union are dealing with the question and whether or not there was an opportunity for an agreed party to put to the decision maker what needed to be put, or what could be put, to produce a decision in its favour.

PN189

There’s nothing in the law that says that some sort of elaborate proceedings is required on an application like this. It’s sufficient for an appropriate opportunity to be provided and we would say that an appropriate opportunity in this case was provided to Qantas to put its submissions in the relatively confined circumstances of the Commissioner’s preoccupations arising as they did from this chain of circumstance with AIPA having filed out its application in the Federal Court. So it’s not, in our submission, all that remarkable to observe what occurred and of course the second aspect of it was if there was some doubt about the power we say the power is amply there in the ball of the general discretion the Commissioner had to deal with the matters under section 46 and 170MD(6) in any event.

PN190

So those are really the two issues that need to be addressed and in addition to your Honours of course taking into account the written submissions that’s all I propose to say, unless your Honours have some question of me on this. If it please.

PN191

SENIOR DEPUTY PRESIDENT HARRISON: If we were against you,
Mr Nolan, and if one aspect of the relief was the directing of the matter to a member of the Commission you accept that it is appropriate that person should be Commissioner Raffaelli?

PN192

MR NOLAN: Yes, there’s no - it appears there’s no objection to that. We have no objection to that.

PN193

SENIOR DEPUTY PRESIDENT HARRISON: Thank you. Mr Kenzie?

PN194

MR KENZIE: Could I deal briefly with the matters that have been raised. Firstly in relation to a point that was raised by the Commission as to the desirability of dealing with the statutory matter even if the Commission minded to accept our submissions on procedural fairness we have to say I did submit beforehand that the Commission wouldn’t have to do it and of course that is so, but I wouldn’t - it appears to us there is some force in what the Commission had to say in relation to the desirability of doing that, that is addressing the matter in circumstances where the matter is about to go back.

PN195

Particularly as Mr Nolan has correctly said, I think every industrial lawyer and the Commission knows that when you’re dealing with the transitional positions, as I think the transcript in the present case illustrated, matters aren’t straight forward and without really urging the Commission to any particular force on this I would contend to saying that there would at least get some force from the notion I got from the Commission that if the matter was going to be returned there is a live issue in relation to the matter before the Commission and there would certainly be commencing on the basis that the Commission would deal with, even though it strictly didn’t have to. I don’t think I can advance the matter further than that.

PN196

Obviously if the Commission deals with the matter on a procedural fairness basis alone of the appeal, well then the parties will be able to go forward and put their submissions if they want with the present proceeding however it comes down. Could I deal with the statutory matter briefly first and make these submissions. Firstly Mr Nolan, the Commission will have observed, has made no attempt to assert that current section 111(1)(e), the section pursuant to which Commissioner Raffaelli said he was acting, applies. In other words there is a tacit acceptance, indeed probably an explicit acceptance, in Mr Nolan’s submissions of the validity of the submissions that we made as to the non-applicability to be.

PN197

He hasn’t attempted to argue, for example, the approach that there be statutory framework in some way in some way enlivens the current section 111(1)(e). His argument is well, accepting that the principles that flowed from the Queen v Graham in which the High Court properly accepted the notion that if you can, if a tribunal has purported to exercise power and done something under one section of a statute and it is otherwise empowered under that statute to take the same form of action, that conduct would not be prohibitable because there would be demonstrated to be no excess of jurisdiction.

PN198

We do not and could not contend to the contrary. Indeed I accepted that proposition for the purposes of my submission, but to make it good and useful it is necessary to find an alternative head of available and relevant power. In other words in order to say look, the Commission has dismissed this application under public interest grounds, to apply the principle in Graham you must first find where else in the legislation there would be the power to do that and there is no such power. The relevant power is a power not simply at to at the end of the dismiss an application, for example dismiss an application under section 170MD(6) on the basis that that is cast in terms of “may” and there is an ultimate discretion as to whether to vary at the end of a hearing.

PN199

The “may” in section 170MD(6) is a may that operates in relation to the disposition of the proceedings. In other words there is no power in the Commission in relation to MD(6) for the Commission to say look, you’ve got your application on, I’m too busy and this Commission is never going to hear it on public interest grounds or any other grounds. The “may” is a may that operates in relation to a discretion when you’ve heard the case and you’re deciding whether to do something about it. There is no alternate power to do what Commissioner Raffaelli purported to do under section 111(1)(e). There’s certainly no power to make a decision that I’m not going to hear your case, instead I’m going to dismiss it in the public interest.

PN200

That power is expressly denied in the legislation. There is no other power to which anyone at this point which would allow the Commission in relation to an MD application to say well look, I’m sorry, we’re not going to allow you to run the case, it’s going to be dismissed. So there’s nothing along with the principle in Graham, indeed it’s applied. In Graham’s case it’s been applied time after time. But this is not a case in which its application has anything to say about defending what Commissioner Raffaelli did. Mr Nolan appeared to, in relation to his submissions, appeared to suggest that there was no real distinction between dismissal and refrain from further hearing and to the extent that that suggestion was made we would invite the Commission to reject that.

PN201

Of course there’s a distinction between the two as the Commission has been anxious to point out over the years. Mr Nolan’s suggestion that of course Commissioner Raffaelli’s decision did not prevent Qantas for all time from seeking to activate its matter. It just didn’t meet the point at all, with respect. He suggests that Qantas could come back after the Magistrates Court had a go and reactivate its application. But even accepting that and foreshadowing some further enactment of some construction of some further proceeding, what
Mr Nolan’s submission is that Qantas has lost by virtue of what Commissioner Raffaelli has done, the capacity to activate its matter before the court proceeding, whenever that may be.

PN202

There is a clear difference between dismissal and an adjournment. If the Commission had taken the step that it indicated in paragraph 29 and perhaps not proceed or proceed at this stage you’d be having a different debate because if the Commission exercised a discretion not to adjourn the matter then even if it decided to adjourn the matter indefinitely that would not preclude Qantas from coming back and saying look, the circumstances have changed. It’s not correct to say that no one’s prejudiced by this and those matters that were raised on the programming day aren’t the whole story. There is a clear distinction between the circumstances that prevail in relation to dismissal and otherwise.

PN203

Now, in relation specifically to the procedural fairness matters - perhaps I'll withdraw that. I need to make one final point in relation to the statutory aspect of the matter. I submitted that there is no power under MD to dismiss a matter without hearing and that any direction of such a power really would be inconsistent with the statutory scheme which goes out of its way to say that public interest considerations are out of the picture. But in particular even if that was somehow not to be accepted it must be the case that in relation to an MD(6) matter there is no power to refuse to dismiss a matter or refuse to hear it on public interest grounds where those are the very grounds that the Commissioner has selected.

PN204

Mr Nolan sought at one stage of his submission he suggested that although public interest grounds have been identified, that you really don’t look at what the Commission said as to what he was doing, but you trawl back through the transcript and get some hint as to what was really going on. And that approach of course would defy authority. If you want to find out what the Commission did prima facie, you’re looking at what the Commission did and what it was expressing as its grounds for doing it. There would, in any event, perhaps have been difficulty in the notion that anything that had to do with the particular proceedings would amount to public interest grounds.

PN205

I have - again I don’t want to complicate the proceeding but it perhaps adds some flesh to the notion when one comes to the question of what public interest means in this context. Mr Nolan’s submissions really brought to mind those decisions of the Commission most recently activated in the Tristar of the Commission that the public interest within the meaning of the Act means the public interest and does not mean the interests and rights and wrongs associated with particular parties. So that there would have been other matters that would have been required to be addressed in relation to whether public interest grounds would be attracted by the particular procedural matters even if you’ve got there, but of course no one ever got to that stage.

PN206

So we do respectfully submit that our friend has conceded the major premise in relation to 111(1)(e) and that his suggestion that Graham’s case provides the state ground so as it won’t bound and the respondent is free. It will not assist the Commission in this case. As far as the procedural fairness ground is concerned my friend has already appealed to matters in a general way and his submission, as we understood it, came back to this. Look, you don’t get too hung up in relation to the precision associated with the nature of an application as long as the drift of what is to be decided is before the Commission and would be appropriately appreciated by the parties, or don’t get too concerned with matters of manner and form and the like.

PN207

Our submissions, we think, have taken up those matters and acknowledged the force of those matters. The Commission will obviously approach this matter as it does other matters before it on the basis that this is not a court of law, that the Commission is frequently addressed by parties who are not represented, have no recourse to lawyers, the Commission is frequently itself populated in such a way that legal training is not part of the job. In our submission we accept all of that and more. But it is a much greater leap to then say that well, because as our friend said it was clear that the Commission in discussions before it was obviously having a discussion about - and I think I’ve taken my friend correctly - the future conduct of the proceedings, that that was sufficient to justify ..... dismissal.

PN208

Plainly the Commission was engaged in some form of discussion about the future conduct of the proceedings. Of course it was. The question is did that proceeding and that which led up to it give rise to a basis for saying that Qantas should have been on notice that it had to defend a position in which its proceeding was dismissed, even though Commissioner Raffaelli indicated that he was not presently minded to proceed in paragraph 29. That might have provided a foundation for saying well look, the Commission’s thinking of adjourning this matter, but it wouldn’t have provided any foundation for saying well look, what would you say if the Commission dismissed your matter so that it was struck from the scene entirely?

PN209

That would have excited debate and you can not proceed on the basis that it wouldn’t have excited debate. For example, the response would have or could have included look, if you do that we’ll be denied forever in this proceeding the right to come back and take any form of conduct no matter what happens in the Magistrates Court. Other matters would have required address. So it is just manifest that there is all the difference in the world between what the Commission did and a mere analysis of what might be described as the future conduct of the proceedings. We have suggested in our submissions that if you look at the transcript before the notionally ruled line before the Commission has said it was going to dismiss the matter and attempt to search for any suggestion either in the correspondence or the transcript that Qantas’s proceedings would be dismissed, you would search in vain. That is enough in these proceedings. If it please the Commission.

PN210

SENIOR DEPUTY PRESIDENT HARRISON: The Full Bench will adjourn for a short period of time and decide further about the manner in which we will deal with this matter. I hope it won’t be too inconvenient for counsel just to remain in the vicinity of the court. I’m wondering if it might be useful for you to know that it would be unlikely that we would resume within, say, 10 minutes. That might be of some assistance to you. The Commission adjourns.

<SHORT ADJOURNMENT [12.33PM]
<RESUMED [12.48PM]

PN211

SENIOR DEPUTY PRESIDENT HARRISON: We have decided to announce our decision now. This is an appeal pursuant to section 120(1)(c) and (f) of the Act against a decision made by Commissioner Raffaelli in transcript on
30 November 2006. We have been aided in this appeal by the filing prior to this morning’s hearing by each party of detailed submissions and additionally the submissions made this morning orally by both counsel. We are of the opinion that a decision in this appeal should be published as soon as possible and as the Full Bench is unanimously of the opinion as to how this appeal should be dealt with we have now decided to announce that decision immediately.

PN212

We deal first with what was described as the procedural fairness ground. We are persuaded by the submissions made by Mr Kenzie that in ruling as he did in transcript on 30 November 2006 the Commissioner denied Qantas natural justice and that denial constituted jurisdictional error. We refer next to what was described as the statutory construction grounds of appeal. Again we are persuaded by and adopt the submissions made by Mr Kenzie in respect to this issue. The Commissioner’s reliance on section 111(1)(e) of what was described before him and before us as the current Act constitutes appellable error. The grounds of appeal raised matters which, in the public interest, warrant a grant of leave to appeal.

PN213

The identified errors are such that we are persuaded that the appeal should be upheld. Pursuant to section 120(7)(a) we quash the decision of Commissioner Raffaelli. Pursuant to section 120(7)(c) we direct Commissioner Raffaelli to deal with Qantas’s application pursuant to section 170MD(6) consistent with this decision. We will promptly advise the Commissioner of this ex tempore decision. The Commission now adjourns.

<ADJOURNED INDEFINITELY [12.51PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 APPELLANT’S SUBMISSIONS FILED ON 16/02/2007 PN143
EXHIBIT #A2 AFFIDAVIT OF PHOEBE EMERY DATED 15/02/2007 PN143
EXHIBIT #R1 RESPONDENT’S OUTLINE OF SUBMISSIONS DATED 22/02/2007 PN154