D2006/72, Transcript of Proceedings [2007] AIRCTrans 338 (12 July 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 17077-1

SENIOR DEPUTY PRESIDENT LACY

D2006/72

s.158(1) RAO Schedule - Application for alteration of eligibility rules
Application/Notification by Australian Petroleum Agents and Distributors Association
(D2006/72)

MELBOURNE

10.02AM, FRIDAY, 29 JUNE 2007

Continued from 23/5/2007

PN6734

THE SENIOR DEPUTY PRESIDENT: Good morning. I’ve received the written submissions, or the objector’s outline of final submissions, the applicant’s outline of final submissions and the amended copy of that and the objector’s final submission in reply. Are those all the materials that have been called?

PN6735

MR FORBES: Yes, yes they are.

EXHIBIT #EXHIBIT #ACC38 OBJECTOR’S OUTLINE OF FINAL SUBMISSIONS
EXHIBIT #ACC39 OBJECTOR’S FINAL SUBMISSION IN REPLY
EXHIBIT #APADA47 APPLICANT’S AMENDED OUTLINE OF FINAL SUBMISSIONS

PN6736

MR WOOD: Your Honour, we also have provided, or have here at the bar table, the cases which we have referred to and a list of authorities which should have been provided to your Honour and to my learned friend. We’ve got a copy for the other side, too.

PN6737

THE SENIOR DEPUTY PRESIDENT: There’s no necessity for me to mark those?

PN6738

MR WOOD: I don’t think so, your Honour.

PN6739

THE SENIOR DEPUTY PRESIDENT: Thank you for that.

PN6740

MR FORBES: Your Honour, we should do the same thing.

PN6741

THE SENIOR DEPUTY PRESIDENT: Yes.

PN6742

MR FORBES: I suspect there’s going to be some doubling up of cases in all of this, but your Honour, we’ve got a bundle of cases and also a list of the authorities.

PN6743

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN6744

MR FORBES: Which is inside the binder.

PN6745

THE SENIOR DEPUTY PRESIDENT: There’s nothing else? I’ve got some spare room up here. Yes, Mr Forbes.

PN6746

MR FORBES: Thank you, your Honour. Your Honour, sorry, just before I speak, there are two other cases that are not in that bundle. We might just hand them up to your Honour, too. It’s Dyno Nobel case and the Spedley case.

PN6747

THE SENIOR DEPUTY PRESIDENT: Thank you. Sorry, which ones did you say? I’ve got Dyno Nobel.

PN6748

MR FORBES: Dyno Nobel and the GPI Leisure Corporation Limited liquidation is part of the Spedley group, so I’ve called it the Spedley case.

PN6749

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Yes, Mr Forbes.

PN6750

MR FORBES: Your Honour, I think most of the hard work has been done.

PN6751

THE SENIOR DEPUTY PRESIDENT: Yes, I have read the submissions.

PN6752

MR FORBES: Yes. So you have very extensive submissions before you. We rely on our submissions, including those that were filed at the original outline.

PN6753

THE SENIOR DEPUTY PRESIDENT: Yes.

PN6754

MR FORBES: There are a number of matters though, your Honour, that I do wish to take you to. I would anticipate I would be no more than an hour. Your Honour, the overall context of this case, we submit, shouldn’t be lost on the Commission that the application which has been made is an application made within the context of the context of the schedule, the relevant schedule of the legislation, and the schedule of the legislation is aimed at ensuring a cohesive scheme for the registration and regulation of registered organisations. There is a very strong underpinning in the submissions on the part of the applicant in this case that there ought be universal freedom of choice and that the objectors are somehow engaged in turf protection.

PN6755

That theme comes through very strongly from day one, right through to the end of the applicant’s submissions. The objectors in this particular case do not have, as is asserted, a monopoly over this particular field. There are other organisations, such as VECCI and the AIG, who are respondents to the RSNR Award, there are other organisations that have rules which move onto the relevant territory, but the objectors do not have a monopoly and are not seeking to protect a monopoly and we would seek to disabuse the Commission of that submission. There is a very strong etiological stance that’s been taken by the applicant in this matter, your Honour, which we say has caused it to misunderstand the nature of the objections that are being raised and to misunderstand the task that the Commission itself has to undertake.

PN6756

Much of the evidence, and I'll go to it briefly in a moment, but much of the evidence that has come before the Commission from the applicant’s side is essentially irrelevant to the task that you have before you and that the end result of that, your Honour, is that the substance of the objections simply hasn’t been dealt with. Now, I just for the sake of convenience want to briefly summarise what we say the major points of the objection. The first one, your Honour, is that we say that the wording of the eligibility rule is so unintelligible that as a matter of discretion it is open to you to refuse consent without further inquiry.

PN6757

The wording is so ambiguous and uncertain that it is not possible for you to ascertain the relevant class and therefore not possible for the Commission to undertake the comparative analysis that you have to perform under section 158(4) of the schedule. The reason why it’s not possible to identify the relevant class at the requisite level of certainty is that the key concept underpinning the application is the notion of a convenience retailing industry and that sits at the core of the proposed rule.

PN6758

THE SENIOR DEPUTY PRESIDENT: Sorry, when you say that you accept, do you, that the construction is distributive then?

PN6759

MR FORBES: We do. We say that the disjunctive construction which is being urged upon you is a nonsense and that the words “convenience retailing industry” - well, no intelligent meaning can be attributed to those words.

PN6760

THE SENIOR DEPUTY PRESIDENT: But in your submissions you said it’s a composite. In other words it’s the petroleum, distribution, marketing and convenience retailing industry.

PN6761

MR FORBES: It’s expressed as a singular, that's right.

PN6762

THE SENIOR DEPUTY PRESIDENT: Yes.

PN6763

MR FORBES: Yes and what is seemed to be urged upon you by the applicant is that there should be some disjunctive reading so that there are, in effect, three industries embodied in there. I think distribution, petroleum, marketing and convenience retailing.

PN6764

THE SENIOR DEPUTY PRESIDENT: Well, in one part of their submissions they say that, but when I read the submissions as a whole I got the impression that they’re saying that the convenience retailing in some way vilifies petroleum distribution and petroleum marketing, so that there must be a substantive aspect of convenience retailing.

PN6765

MR FORBES: Insofar as that might apply to sites which involve fuel I think that is what they say, but of course they also say that the application is directed at engaging or enrolling convenience stores which stand alone as convenience stores, the 7/11s that sit in the middle of the city.

PN6766

THE SENIOR DEPUTY PRESIDENT: Yes, but that follows from the alibility rule rather than the industry rule. I mean, the eligibility rule might be one in which you could just take a convenience store that has no petroleum relationship whatsoever under the eligibility rule, but not necessarily under the industry rule because the word “petroleum” seems to - although it’s not said in your submissions, I'll need to hear Mr Wood on this - but it seems to quality all the rules that follow as far as the industry is concerned.

PN6767

MR FORBES: That’s one reading of it. One of the difficulties we have, your Honour, is that we’re not quite sure, and we’re still not sure, what they say. But the one thing that the applicant has never said to you, your Honour, is that these words have a plain meaning. From day one the applicant has, in effect, been begging the Commission to intervene and to get the blue pencil out and to rework this application. The application itself, it’s staggering, your Honour, that the applicant actually got to where it is because it has no plain meaning either in the industry rule or the eligibility rule. That is for sure because no plain meaning has been put to you.

PN6768

What the applicant seems to be seeking to do is to find meaning in a set of words which have none. Your Honour, that indeed is - I think we referred to this certainly in our reply - is that there are forms of words which simply do have no meaning and it’s not a case for the Commission to twist and turn and rewrite to cure the application in order to give it some life. In the same way that contracts can be so uncertain as to be void, so too can an application simply be so beyond repair that nothing can be done with it.

PN6769

THE SENIOR DEPUTY PRESIDENT: I mean, do you mean the words have no meaning, or do you mean as an industry it has no meaning? Because the words have meaning, obviously.

PN6770

MR FORBES: Yes, the words do and one can select phrases within the body and attribute meaning to that. But meaning, real practical meaning in the context of industrial relations in Australia, the real commercial world has to be found. And what we say, your Honour, is that convenience retailing industry is not an industry one will find in Australia in a practical sense. So there are two submissions embodied in the unintelligibility, your Honour. The first one is that it is open to you to reject the application without any further inquiry on the basis that the applicant itself makes no sense.

PN6771

The second is that your Honour can reject the application on the basis that the ambiguity places you in a position where you can’t undertake the comparative analysis. So that’s a second discretionary point at which you can reject the application. We say as you would be well aware, your Honour, that you can and should exercise your discretion in relation to what we say was an agreement reached in 1986 between the parties regarding representational capacity over what would appear to be the relevant field. I do want to touch upon that a little more in a moment.

PN6772

We have also addressed in the outline a number of broader discretionary grounds upon which you can say, or upon which it can be said, that consent should be refused. Coming back, I should take a step back, coming back to the comparative analysis, if your Honour finds that there is a relevant class and you are able to identify that relevant class, then we say that relevant class overwhelmingly can more conveniently belong to the objectors and can be better represented by them. Now, as far as the construction points are concerned, we’ve endeavoured to deal with that as best we can.

PN6773

THE SENIOR DEPUTY PRESIDENT: Sorry, just before you go on. You say, and you might be going to develop this later on and the question will be more convenient, you’re going to come back to more - - -

PN6774

MR FORBES: I’m coming back to relevant class shortly, yes.

PN6775

THE SENIOR DEPUTY PRESIDENT: Yes and more conveniently belonged?

PN6776

MR FORBES: And more conveniently belonged, yes.

PN6777

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN6778

MR FORBES: Now, as far as the construction issues are concerned, your Honour, we say that the applicant really has been all at sea in endeavouring to find meaning in the words used in the application. There is no plain meaning. And even before this case started in their original outline of submissions concessions have been made, alternatives have been suggested, certain construction points have been taken and the applicant really has been all at sea from day one and continues to be all at sea and continues to offer up ways in which meaning can be given to the words.

PN6779

In our submission it’s not for the Commission respectfully to intervene at the outset with the blue pencil, and you’ll hear plenty about blue pencilling, but it’s not for the Commission to intervene at the outset. The blue pencil is kept in the back pocket to refine the outcome where that is necessary, but not to rewrite the application itself. Now, as far as the relevant class is concerned, your Honour, that is the next important step if it is possible to find objective meaning in the words used in the application. The cases say, and you will no doubt be familiar with them, that the first step in a comparative analysis is to identify that relevant class to a level of specificity.

PN6780

So what’s the relevant class? Now, the relevant class must turn on this concept of convenience retailing. That’s the relevant extension to the rules that is being sought. And you’ve heard argument - - -

PN6781

THE SENIOR DEPUTY PRESIDENT: That’s where you say the intersection arises, is it?

PN6782

MR FORBES: That’s the extension. Certainly that’s - the relevant extension to the rules go to convenience retailing industry and therefore if meaning can be given to that in some way, then that will define the relevant class. So the first point in defining the relevant class, if there be one, has to be, in our respectful submission, to determine whether in fact there is a convenience retailing industry. The answer to that is no, there’s not. The only evidence that you have before you in relation to convenience retailing industry are three fairly limp bits of evidence. There was a Herald Sun article where it’s said that there’s a guy at BP that has “convenience retailing” in his title, there is evidence of the National Association of Convenience Stores from America, it’s some website print outs, and little else.

PN6783

And you are being asked to find that there is a convenience retailing industry. Against that, against that evidence, you have the evidence of the various objector’s witnesses, and I won’t go into the detail of them, but you can recall that. Mr Redfern in particular saying look, we don’t deny the existence of convenience stores. And your Honour, this is an important point. Our case has never denied convenience stores. That would be silly. Each of my clients has specific divisions within their ranks to enrol service station convenience store operations. So we’ve never denied that. But it’s the notion of whether in fact there is a separate and distinct industry.

PN6784

THE SENIOR DEPUTY PRESIDENT: You would agree, wouldn’t you, that retailing is an industry?

PN6785

MR FORBES: Retailing is an industry.

PN6786

THE SENIOR DEPUTY PRESIDENT: But you don’t see convenience stores as a separate industry, or convenience stores providing retail services as a separate issue?

PN6787

MR FORBES: No, we certainly challenge that notion, sir, and particularly so in relation to those operations where there is a combined fuel retailing offering.

PN6788

THE SENIOR DEPUTY PRESIDENT: Just forget the fuel bit at the moment.

PN6789

MR FORBES: Yes.

PN6790

THE SENIOR DEPUTY PRESIDENT: I mean, 7/11 is without any fuel or anything like that. I mean, they’re a convenience store.

PN6791

MR FORBES: Yes.

PN6792

THE SENIOR DEPUTY PRESIDENT: And they operate throughout Australia.

PN6793

MR FORBES: Yes.

PN6794

THE SENIOR DEPUTY PRESIDENT: Why wouldn’t that be a convenience retailing industry?

PN6795

MR FORBES: Your Honour, in the same way that Spotlight stores selling fabric and buttons are also operating throughout Australia and we would say that there’s not a fabric and button retailing industry. They’re part and parcel.

PN6796

THE SENIOR DEPUTY PRESIDENT: They might be actually.

PN6797

MR FORBES: Well then, that’s for another day. Your Honour, what we say is that there isn’t. I mean, your Honour will have, and I’m not sure whether you’ve had an opportunity to read, but the proceedings before Commissioner Palmer back in the mid ‘90s, the decision of Commissioner Palmer, this was squarely the issue. This was the very point. Almost indistinguishable. The very point that Commissioner Palmer had to look at. And he said there’s nothing in it. You’ve got a retailing industry and you’ve got a motor garage or a motor service station industry. They’re your industries. And he saw no commonality between the 7/11 store saying well look, that’s part of the broader retail industry and whether there is a convenience offering in service stations, that that sits within the motor service industry.

PN6798

THE SENIOR DEPUTY PRESIDENT: But one of the authorities that Mr Wood relies on seems to rely on that finding in some way, that it suggests that motor retailing and convenience store operations are something separate from just motor retailing and separate from convenience.

PN6799

MR FORBES: I think that was one of the town planning type authorities that he was referring to.

PN6800

THE SENIOR DEPUTY PRESIDENT: Yes.

PN6801

MR FORBES: Your Honour, they’re simply matters that turn on the words in particular statutes. Those cases incidentally that were referred to predate Commissioner Palmer.

PN6802

THE SENIOR DEPUTY PRESIDENT: Yes.

PN6803

MR FORBES: They were Food Plus cases that go back to the early ‘80s.

PN6804

THE SENIOR DEPUTY PRESIDENT: Do you know if they were referred to in the matter before Commissioner Palmer?

PN6805

MR FORBES: I don’t believe they were.

PN6806

THE SENIOR DEPUTY PRESIDENT: No.

PN6807

MR FORBES: I don’t believe they were. But the matter, the task that you have, your Honour, is to determine the notion of industry in the context of the Australian Industrial Relations landscape and that’s an important distinguishing feature. We’re not here seeking to interpret statutes which might have a meaning of convenience store. It’s whether in terms of the industrial landscape there is a separate and distinct industry of convenience retailing. And we say that Commissioner Palmer dealt with that, not in some superficial way. He went around and looked at them, he heard evidence and indeed the very arguments that were put to support the existence of that industry were very much as they are now.

PN6808

The SDA on that occasion came along and said well, we’ll tell you why there’s an industry, is because there is an association and there’s also evidence from America and overseas which says that such an industry exists. And Commissioner Palmer had nothing of that and nothing has changed. Before I leave that point the employers represented in that case, your Honour. Caltex Shop Stops, Shell, Mobile Quix, BP Express, BP Food Plus, Horizon, Ampol Road Pantry, 7/11. They were all there and they all said there’s no industry. Now, I know what my learned friend and his side of the table say is well, we put that position because it suited us at the time.

PN6809

THE SENIOR DEPUTY PRESIDENT: That it was an interest that they had.

PN6810

MR FORBES: Yes, that’s the way we wanted the Commission to believe it to be. Well, Mr Lamb told us that you say and do what it takes to get your position forward and maybe that’s the approach, but it’s disingenuous, your Honour. The entire community of so-called convenience retailing came along and argued a contrary position only 10 years ago and there’s no evidence that the world has moved on since then. If there was evidence that there had been a significant change in that past 10 years such that the industry today is something radically different from what it was then, we would have heard it. But there’s nothing.

PN6811

Indeed all of the witnesses, the applicant’s witnesses, all effectively conceded that convenience stores and petroleum convenience stores have been part and parcel of the landscape for at least two decades. Mr Killeen, Mr Symington, oil company men both said we were involved in that stuff and the development of that stuff a long time ago and the world has not changed. In our submission the applicant has sought to sweep Commissioner Palmer’s decision, the logic of Commissioner Palmer’s decision, under the carpet. It’s hardly mentioned in the reply because there’s not much they can say about it. But in my submission it is hugely persuasive and it goes to a number of matters.

PN6812

It goes not just to the issue of whether or not a convenience retailing industry exists, but it also goes to the interpretation and the practical operation of the objector’s rules. You see, each of the objectors has been lined up and targeted for having enrolled businesses outside their membership rule, the argument being that the objectors can’t enrol convenience stores because they’re not in the motor trade. Commissioner Palmer specifically found that those sorts of businesses sit within the motor trade. Now, that informs the Commission, that informs the employer community, as to what the motor trade and the relevant parameters of the motor trade are.

PN6813

Now, it all comes at no surprise that the objectors enrol and take on board businesses which fall within, as the Commission itself found, are part of the motor trade. So there’s criticism of the objectors and their membership, in my submission, is totally unwarranted. Now, as far as the relevant class is concerned I just want to make these few points. The relevant class as you know, your Honour, is that group of persons who will become eligible by reason of the alteration. That’s the relevant class. Now, fuel distributors who have a retail outlet, the sorts of businesses owned by Mr Clarke and Mr Gough and formerly by Mr Lamb, Mr Blaney, those businesses are already within the eligibility rule of APADA because they are distributors who have an ancillary business.

PN6814

They’re not in a relevant class. The relevant class are the group of employers out there who will become eligible by reason of the change that is being sought.

PN6815

THE SENIOR DEPUTY PRESIDENT: Who were not members by reason of being a distributor or a marketing operation.

PN6816

MR FORBES: That's right, because they’re already in the tent, if you like. So the relevant class, we submit, using the applicant’s submissions would seem to be non-fuel convenience stores, so the 7/11s, and service stations in as much as it is said that they have a substantial character of a retail store. That’s what we perceive to be the relevant class as the applicant would have it. Now your Honour, there was no evidence at all from anyone who might fit within the relevant class other than the objector’s witnesses, Mr La Rosa and Mr Halstead, are the sorts of businesses which fall within the relevant class.

PN6817

The other witnesses of the objectors, Mr Redfern, Mr Hatton, Mr Boldock,
Mr Marsland, Mr Bowden, Mr Kowalski, all sit in employer organisations which currently represent members of the relevant class. So an important evidentiary point, your Honour, is that the only evidence you have of the relevant class, their industrial interests, their industrial representation, what they might want, who they might want to belong to, the sort of assistance they need, the industry they’re in, the only evidence you have is from the objectors. Not a scintilla of evidence from the applicant.

PN6818

One would normally find in a case or one might have expected that you bring 7/11 along or some other potential member of the relevant class who would sit in the witness box and say I really want to be a member of APADA, I think APADA can serve me well, I’m not happy with my current industrial representation, there’s nothing of that kind. So there’s no evidence from members of a relevant class as to where they might conveniently belong or who might better represent them. The only evidence comes from the objectors. Now, just coming back for a moment, your Honour, before I get too far ahead of myself, we say that identifying the relevant class is not something that you can do in any event because of this inability to identify a separate and distinct convenience retailing industry.

PN6819

The evidence, in my submission, is overwhelming almost to the point of not being contradicted, that service stations/convenience stores are an indivisible whole. They vary in size, shape, colour, the way they look, the number of coke machines they have, the sorts of offerings they have, the number of fuel pumps they have out the front, but - - -

PN6820

THE SENIOR DEPUTY PRESIDENT: There was some evidence, wasn’t there, that there is a distinction between some of them, like some of them might just have an ice-cream stand and a coke machine or something like that? That they’d operate more like a canteen than a convenience store.

PN6821

MR FORBES: To the extent that there is a distinction, your Honour, yes there is a distinction between each and every one of them. That’s the only distinction that can be made. No two are the same.

PN6822

THE SENIOR DEPUTY PRESIDENT: You would say they are convenience stores nonetheless? If they have a coke dispensing machine and a ice-cream machine or a fridge with some ice-creams in it and perhaps a hot pie, then you would say that was a convenience store?

PN6823

MR FORBES: Yes, we do. We say that it’s part of the indivisible whole. It’s a thing that Mr Symington referred to consciously or subconsciously as service statement convenience store. All the witness kept talking about service station convenience stores. They’re one and the same. The argument that seems to be put by the applicant, your Honour, is that one can draw and meet distinctions somewhere in amongst all of this fog. Mr Wood told us in his opening that there’s the point, you know, there’s that point where it moved from one industry to another. Well, there’s no point, your Honour.

PN6824

Nothing has been said in submissions or in the evidence to enlighten any of us as to where that point is and in my submission the failure to make good that proposition reinforces the very point that we seek to make. Is that they come in all shapes and sizes and it’s because, as Commissioner Palmer found, it’s part of the motor trade, it’s part of an indivisible whole. A number of arguments have been put in the applicant’s submissions, your Honour, to try to assist you to identify where that point or where that jumping off point comes.

PN6825

It was said, for example, that there’s a distinction between old style and modern. That was one way of putting it. Well, that went nowhere because the evidence is that there’s virtually nobody in old style. They exist other than, you know, you might try one or two. And all the witnesses again were really at one about that point. The old style’s gone. So that doesn’t work. The other way of putting it was well, some of these businesses focus on the car and some focus on the occupant of the car. Well, with respect that’s one of the most ridiculous submissions I’ve ever read. They’re an indivisible whole.

PN6826

The very business model that you heard the applicant’s witnesses talk about and my witnesses talk about, the business model is that people come in to buy fuel, they come in cars. Fuel gets them in the door. We heard it more than once. And when fuel gets them in the door you’d be silly not to sell them a Mars Bar if you can. But this idea that some businesses focus on the occupants of the vehicles and some businesses focus on the vehicles themselves is frankly a nonsense. And your Honour, we’re talking here about prescribing the parameters of an eligibility rule. How on earth can one possibly do that by just looking at a business and say well, they’re interested in cars and they’re only interested in people?

PN6827

THE SENIOR DEPUTY PRESIDENT: Just on the issue of focus. I mean, a 7/11 store with one petrol pump at the front of the store, for example, would hardly be described as a petrol station, would it, or a service station?

PN6828

MR FORBES: I think that’s probably right. I think the person in the street would more likely call that a convenience store. Although mind you, your Honour, I think a number of these things will turn, for example, on layout. A lot of 7/11s sit in old petrol stations. Even though they might only have a couple of pumps out the front they still look like a petrol station. There are others that have a different look because they’re new. But your Honour, the difficulty that, with respect, the Commission faces here, and we say is an incurable issue, is that at no point can one say one moves from the fuel retailing industry into the convenience store industry because no such point exists.

PN6829

So old style and new style doesn’t work. Vehicle focus on the person doesn’t work. What we say, your Honour, is that the small service station that has two coke fridges rather than six and one shelf of Mars Bars rather than the four is simply a different, but equally valid - - -

PN6830

THE SENIOR DEPUTY PRESIDENT: Sorry, there are others I mean that have big fridges with milk and all sorts of ice-cream, cakes and things of that nature which are quite different to a little stand alone fridge that’s got a number of different ice-cream blocks or packaged little things that are very small.

PN6831

MR FORBES: Yes, they are different.

PN6832

THE SENIOR DEPUTY PRESIDENT: Yes.

PN6833

MR FORBES: They are different, but they’re not - what our submission is, your Honour, is that each one is a different but equally valid response to consumer and market forces that in the country one is not likely to find 12 coke fridges and 250 square metres of grocery items if that’s not what the local community wants. You can be sure that if the petrol man’s not making any money out of fuel and he thinks he can make money out of grocery items, that’s what he’ll do. So that the large and the small, the colourful and the dull, are all different but equally valid responses to the service station convenience store market.

PN6834

But one can’t say that some are in and some are out. They’re all in, we submit, the service station or motor retail sector because in all cases, and I don’t think there was any evidence at all where fuel was involved, in all cases where fuel was involved fuel dominates the till. Not only does it dominate the till in terms of turnover, it is the very reason for being.

PN6835

THE SENIOR DEPUTY PRESIDENT: Doesn’t dominate the profit.

PN6836

MR FORBES: It doesn’t dominate the profit. It doesn’t dominate the profit, we can’t argue against that and we don’t try to. It doesn’t dominate the profit, but its wider business is there. That’s why the sign is out the front, that’s why it has a big brand called BP or Mobile or Shell or Horizon. They’re about fuel. It’s why they’re on street corners and main roads. It’s why when they get up in the morning the first thing the operators do is drive around the block and see what the competitors are selling their fuel for. Your Honour, fuel defines the industry. Now, I should perhaps make it clear, if it’s not already clear, that there is one concession that we make in this application and that is my clients aren’t interested in the non-fuel sites.

PN6837

THE SENIOR DEPUTY PRESIDENT: Well, you have no coverage.

PN6838

MR FORBES: That’s right. We’re not here - - -

PN6839

THE SENIOR DEPUTY PRESIDENT: I’m not saying at this stage whether you have coverage if they do have a convenience store with fuel, but you certainly wouldn’t have coverage if they were a convenience store without any fuel.

PN6840

MR FORBES: That's right. We don’t come along and say we try to derail the applicant insofar as they want 7/11s under apartment buildings or in shopping strips. We’ve got no submissions to make about that. If the Commission wants to deal with that, well it can. Now, I do want to say something, your Honour, about these concepts of intersection and the membership list analysis where a lot of the case seems to have focused on that process. In my submission all that evidence misses the point and it is plain from the applicant’s submissions that they’ve missed the point entirely.

PN6841

Your task is relatively simple in the sense of explaining what it is. Identify the relevant class and if you can identify the relevant class one then looks to the eligibility rules of the objectors. Not their membership, the eligibility rule of the objectors and then to determine whether the relevant class can more conveniently belong and be better represented by objectors who have rules which cover that area. That’s the task. The relevant class is not informed by or in any way defined by the membership of the objectors. And I’ve tried to explain, you might have read my redhead/blond/brunette analysis in the reply. If you haven’t I’d ask you to have another look at that, your Honour.

PN6842

But it’s entirely feasible that an objecting organisation may have no members in the relevant class, yet still be an organisation to which the relevant class can more conveniently belong or be better represented. So the membership of the objectors is irrelevant to section 158(4). Its only relevance, if there be any, is not to identify the relevant class, but it may - - -

PN6843

THE SENIOR DEPUTY PRESIDENT: Is there some authority for that proposition you just made? Membership of the objectors is not relevant to the question of more conveniently belong?

PN6844

MR FORBES: Well, it’s the principle, it’s the NTEU, ASU.

PN6845

THE SENIOR DEPUTY PRESIDENT: Yes.

PN6846

MR FORBES: All the cases, I think, which go back to Williams SDP in NTIEU. The simple proposition being, your Honour, that the role for the Commission - I'll just have a look at that, I'll find it in a moment - but it’s repeated in virtually every rules case, your Honour. That the role for the Commission is to identify whether members of the relevant class can more conveniently belong or be better represented by an objector. And it is the objector’s rules which are relevant to that question. Your Honour may well be informed in the actual assessment itself, that is the convenience of belonging and the better represented, your Honour may well be informed by the objector’s current membership because that may give you some indication as to whether they’re actually operating in that field or providing services in that field.

PN6847

But the important point, in my submission, is that the relevant class is not in any way informed by or defined by the membership of the objectors. Therefore the process of ticking boxes or asking witnesses to try and remember whether certain stores are convenience stores or not or whether they visited them or not really had virtually no prohibitive value at all. And your Honour, it all did seem to disappear. When one reads the applicant’s final submissions it’s really not taken anywhere other than being used as a vehicle to slight some of the witnesses who gave evidence.

PN6848

That’s the only way in which it seems to be given life, is to criticise the various witnesses for having imperfect memories or not knowing where all their members are or what all their members look like. But it is material which in my submission is irrelevant. What the applicant seems to have done, your Honour, is to talk of this intersection and the intersection they seem to be looking for is an intersection between the relevant class and the actual membership of the objectors. That’s not the relevant intersection. The relevant intersection is between the membership of the relevant class and the rules of the objectors and that seems to have been lost entirely on the applicant.

PN6849

THE SENIOR DEPUTY PRESIDENT: But there’s nothing in the rules of any of the objectors that gives them coverage of the convenience stores, is there?

PN6850

MR FORBES: Not in those words, no.

PN6851

THE SENIOR DEPUTY PRESIDENT: No. But you say if a convenience store operates in a petrol outlet then it’s a service station, part and parcel of a service station.

PN6852

MR FORBES: Well that’s right, your Honour. I’m careful not to use that language of there being a convenience store operating in a service station. They’re one and the same.

PN6853

THE SENIOR DEPUTY PRESIDENT: Yes, I understand.

PN6854

MR FORBES: And my submission it is entirely spurious for the applicant to attack the objectors and their rules and to suggest that the objectors have been enrolling members outside their rules. All of the witnesses from the applicant’s side who could be a member of one of the objecting organisations have at some stage been a member. Each one of them has sought to avail themselves of the Award that covers that field that the objectors have created and maintained.
Ms Taylor for 20 years has been advising her members about that Award and to come along and to say over pages and pages and pages that the objectors don’t have coverage over service station convenience store operations in my submission is total nonsense.

PN6855

The objectors have traditionally for decades enrolled service stations. Service stations change. They have evolved. They have moved from the rag in the pocket mechanic to a different type of operation. The evidence about that is unquestionable. The industry has changed. It has not become a different industry, it is still part and parcel of the motor trade industry. It is the very thing that Commissioner Palmer adjudicated upon and it is, in my submission, an area of nonsense to suggest that the fact that businesses of that kind are enrolled by the objectors discloses that they’ve been operating outside their rules.

PN6856

If the applicant’s members and witnesses have been unlawfully members of our organisations and applying the wrong Award, and Ms Taylor’s been advising them for 20 years about that, well then they should stand up and say that to the Commission. But the majority of APADA’s members have at some stage applied that Award or one of the mirror state Awards and/or been a member of an objector organisation. The only change which has occurred in this entire case, the only change which has occurred is that a greater number of distributors are now involved in retail, in service stations and APADA therefore has a greater interest in that field. That’s all that this case is really about.

PN6857

In terms of the comparative analysis, your Honour, that you have to undertake in our submission the focus must be on the industrial interests of the persons within the relevant class. The authorities are clear on that point. We have referred to those, but re ANF a Full Bench decision. These are at page 10 of our original submissions. You don’t need to go to those now. But re ANF and re NTIEU make it abundantly clear that the proper approach in addressing the relative ability of two organisations is in connection with the system created by the Act. This is industrial relations legislation.

PN6858

We are dealing here with organisations which seek representative capacity in relation to the Act and representative capacity in relation to the industrial interests of persons who operate within the system and it is the industrial relations focus, in our submission, that your Honour ought maintain. And what that means is that they might have a better magazine than we’ve got, or they might have more interest in Mars Bars than we do, they might have closer relationships with Coca Cola than our organisations do. Well, that’s what trade organisations do. And AACS, the organisation with whom APADA is merging, is a trade organisation. That was the evidence. No industrial organisation at all.

PN6859

The so-called better servicing of members that we hear about is about better servicing of members’ commercial and business interests. Nothing to do with industrial relations at all. And there is a very strong flavour of that in this case, in my submission. There is gratuitous, vitriolic criticism of the RSNR Award, something apparently my clients ought not be proud of. It’s said to be confusing and complex. There’s no evidence about that. That’s the author of the submissions saying that. Insofar as the relevant class are concerned, your Honour, the only evidence you have is that a lot of them belong to objectors.

PN6860

We don’t have any evidence from members of that class saying they don’t like the objectors, the objectors aren’t doing their job properly or that they’re dissatisfied or that they want to belong to APADA. No evidence.

PN6861

THE SENIOR DEPUTY PRESIDENT: There is some evidence of people saying that they were unhappy with the service that they got from the objectors in relation to their advice or guidance on matters concerning convenience stores.

PN6862

MR FORBES: That evidence came from persons not members of the relevant class. It came from current APADA members who are already within that tent. They’re not in the relevant class. They’re not part of the group that will become eligible by reason of the rule change. And if one places weight on that, well former office bearers of APADA, office bearers of AACS and persons who aren’t in the relevant class who have a direct interest in the outcome of this case, well of course - - -

PN6863

THE SENIOR DEPUTY PRESIDENT: Self interest you’re saying?

PN6864

MR FORBES: Totally. The point which - I won’t keep repeating it other than once more - is that what appears to have been lost on the applicant is that they haven’t brought before you relevant evidence about the relevant class. And the only evidence about the relevant class is from the objector’s side. Now, there’s just - - -

PN6865

THE SENIOR DEPUTY PRESIDENT: They can rely on that, can’t they?

PN6866

MR FORBES: They can rely on?

PN6867

THE SENIOR DEPUTY PRESIDENT: The evidence of the objectors about the relevant class and these are the relevant class.

PN6868

MR FORBES: They can rely on the evidence of the objectors if there’s something in there that assists them. Now, there’s two other matters. The 1986 agreement, that’s the section 158(6) point. We’ve dealt with that in quite a bit of detail in our submissions and our reply. The applicant’s position in relation to what occurred in 1986 is that something occurred which resulted in a set of words going into the APADA rule, but it’s not an agreement.

PN6869

THE SENIOR DEPUTY PRESIDENT: Isn’t their position that the rule as it appeared after the 1986 alteration was the entirety of the compromise that was made at the time?

PN6870

MR FORBES: They say, as I understanding it and Mr Wood will correct me if I’m wrong, they say yes and that’s the end of it. Done. Done and dusted. Now, you heard Ms Taylor say we did it to get rid of the objectors.

PN6871

THE SENIOR DEPUTY PRESIDENT: Yes, but there was no separate undertaking as such, was there, or written undertaking as such?

PN6872

MR FORBES: No separate written undertaking. But your Honour, this is about inferring about common sense about things that happened 20 years ago.
Mr Rothville:

PN6873

There has been an agreement reached as to appropriate words to be inserted by way of amendment to the application which will satisfy the objections which have been lodged.

PN6874

That’s Mr Rothville enshrined in the Commission transcript. Your Honour, you know as I’m sure my learned friend does, that the ritual in this place is that if you want to put something in for history sake you come along and read it into transcript. That’s what Mr Rothville did. Then he went on to read the words of exclusions. Mr Russell - - -

PN6875

THE SENIOR DEPUTY PRESIDENT: Yes, but that doesn’t - I mean, I’m sorry to interrupt you - but if you reach a compromise in relation a rule alteration which entails a change or an alteration of the application to alter the rules, then that doesn’t bar you from altering that forever, does it? I mean, it’s different to cases where you have a compromise reached by way of an actual written undertaking or some sort of a deed between the parties. Let say that they won’t at some later stage take action to change that distribution of membership.

PN6876

MR FORBES: Well, in my submission, your Honour, there is no material difference between those arrangements because the important point is this. When agreements are reached between organisations regarding representative capacity, they must by definition be agreements that have future effect. It’s about how you and I will deal with each other into the future. I won’t poach your members or you won’t poach my members. It is meaningless if it is something that the parties walk away from that day. The vehicle through which a party can represent to the Commission that an eligibility rule change by another organisation is inappropriate is by objecting.

PN6877

That objection allows that party to prosecute with respect to a particular area that it wants to protect. It can compromise that by agreement with the applicant. And the Commission encourages that. That’s why parties conciliate and try and reach accommodation so that we don’t find ourselves in a situation like this. And your Honour, it is by definition about the future and it has future effect. On any view, in my submission, the conclusion, the inference you must draw is that what occurred in 1986 is that the parties reached an agreement as to future effect between the two parties.

PN6878

THE SENIOR DEPUTY PRESIDENT: Which they incorporated into the rule.

PN6879

MR FORBES: Which they incorporated into the rule by specific rules. And then going one step further is to say all right, well what does the future mean? Well, for 20 years these two organisations have happily co-existed and operated in their respective fields and not undermined those particular words in that agreement. And your Honour has to take, in my submission, take that into account. Then there’s the 2004 rules change. And Ms Taylor said in her evidence we knew it wouldn’t honour the words. We knew it wouldn’t honour the words. And she and Mr Symington spoke about what they were going to do and they knew that there might be objections.

PN6880

Ms Taylor said we didn’t want to bother with the VACCs of this world. We know how they’d react and that’s why we didn’t tell them because we knew there’d be a hostile - - -

PN6881

THE SENIOR DEPUTY PRESIDENT: But see, there’s notice in the Gazette to tell everybody about the rule.

PN6882

MR FORBES: A notice in the Gazette, your Honour, which says nothing of any substance at all. And your Honour, I’d urge you to have a look at - I’ve forgotten what exhibit it is - but the material is in. The notice in the Gazette did not say that these words were put in 1986, they are to be removed.

PN6883

THE SENIOR DEPUTY PRESIDENT: Why does it need to say that? I mean, the Gazette is - - -

PN6884

MR FORBES: To alert objectors.

PN6885

THE SENIOR DEPUTY PRESIDENT: But the Gazette says what the nature of the rule alteration is and what the purpose of it is.

PN6886

MR FORBES: Indeed and the purpose - - -

PN6887

THE SENIOR DEPUTY PRESIDENT: Why should it go any further?

PN6888

MR FORBES: Well, because the regulations say, regulation 121 say that, and this deals with what has to go in as part of the application, 121(2)(b)(ii) is that what has to be set out if it involves an application for consent to alter the eligibility rules, is the reason for the proposal and the effect of the proposal in sufficient particularity to allow the proposal to be properly considered. Now, what in my submission was done in 2004, and the application is more notable for what it doesn’t say rather than what it does, the effect of the application was to dispense with the objectors’ field of coverage in service stations, it was to dispense with words of agreement between parties, it was the resolution occurred in September 2004, the application was signed on 22 December 2004, the application was filed on 23 December 2004 and was gazetted in the middle of the holidays.

PN6889

Mr Symington and Ms Taylor were given adequate opportunity to explain why they did, they didn’t. The applicant does not address this issue in their submissions. The applicant, in my submission, knew full well having regard to the fact that Mr Symington and Ms Taylor spoke about the potential for objections, knew full well that was an agreement in place and they sought to alter the rules in violation of that agreement.

PN6890

THE SENIOR DEPUTY PRESIDENT: When you say agreement in place, that was the agreement that was made - - -

PN6891

MR FORBES: In 1986.

PN6892

THE SENIOR DEPUTY PRESIDENT: To alter the application of the rules?

PN6893

MR FORBES: Yes. The only purpose, your Honour, of the 2004 rule change was to dispense with those words. It had no other purpose or effect. It was to get rid of those words. Now, in my submission we’ve dealt with it in a lot of detail, but in my submission the effect of the current application is contrary to that agreement that was reached. I know my learned friend will say well, bad luck, 2004 happened. Well, if an agreement was reached the unilateral act of one party to walk away from that does not get rid of the agreement. You can cheat on your wife, but you’re still married.

PN6894

Until this was detected, until the applicant’s conduct had been detected by reason of this application by the objectors, it had been concealed. The applicant is silent about this. We asked them to produce the internal documents about what had occurred in 2004 and we didn’t get those because Mr Wood said we couldn’t have them.

PN6895

THE SENIOR DEPUTY PRESIDENT: Well, one reason you didn’t get them was because I didn’t order them.

PN6896

MR FORBES: You didn’t rule in my favour.

PN6897

THE SENIOR DEPUTY PRESIDENT: But I still have some difficulty in understanding the relevance of it because there was an agreement, as you say, reached in 1986 that the organisation would amend or vary its application to alter the rules to make a concession, if you like, to the objections of your client. But rules can always be altered.

PN6898

MR FORBES: Yes.

PN6899

THE SENIOR DEPUTY PRESIDENT: And parties who have an interest in those alterations have an opportunity to object.

PN6900

MR FORBES: If they’re put on notice.

PN6901

THE SENIOR DEPUTY PRESIDENT: Well, I don’t see anything in the agreement that you’ve referred to that required them to be put on notice other than by the normal processes.

PN6902

MR FORBES: Your Honour, it goes to the question of whether there is an agreement with future effect. The objectors, you heard from Mr Redfern in particular, were pretty unhappy about what was done and that was because there was an honest and reasonable belief on their part that APADA was sticking to its knitting. And the fact that APADA did something in 2004 and, in our submission, the way it did it is evidence that you can take into account in assessing whether in fact there was an agreement made then with future effect.

PN6903

THE SENIOR DEPUTY PRESIDENT: But I mean, there are many cases where parties compromise objections in the way in which you’ve referred to, but they’re also in most cases accompanied by some written agreement that says in the event that the parties proposing to alter that rule that they will notify us. Well, there’s no such agreement of that nature in this case.

PN6904

MR FORBES: Well, there’s no evidence of that.

PN6905

THE SENIOR DEPUTY PRESIDENT: No.

PN6906

MR FORBES: No. But in my submission, your Honour, you have to make of the evidence you have before you as to what occurred. And Mr Russell confirmed that an agreement’s been reached. Mr Privit you will recall said we’d better put something on transcript because not that we don’t trust them but people change. I can’t take it any further, your Honour.

PN6907

THE SENIOR DEPUTY PRESIDENT: No, I follow. But I’m just saying the normal process in rule alterations is that there will be an accompanying written agreement of the nature which you speak that says that the other party will put the other party on notice, but there’s no such - - -

PN6908

MR FORBES: There’s no evidence of that.

PN6909

THE SENIOR DEPUTY PRESIDENT: No.

PN6910

MR FORBES: We’d simply say, your Honour, from the balance of the evidence, what there is of evidence, it all points one way. And your Honour, you have the discretion under 158(6) to withhold consent on the basis of that. Now, the only other matter I wish to go to is you will see that we have proffered an alternative outcome at the end of our reply.

PN6911

THE SENIOR DEPUTY PRESIDENT: Yes.

PN6912

MR FORBES: Now, we do that, your Honour, not on the basis that we make any concession about anything, but we are alive to the fact that the applicant is asking you to intervene in the process and to get the blue pencil out to rework the application and outcome in a particular way. Well, what we say, your Honour, is that if you are minded to grant consent to this application then some additional words, the ones that we propose right at the end of our reply, would be appropriate and that is that words of clarification following on from the so-called petroleum distribution, marketing and convenience retailing, would not include businesses operating within the industry usually carried out in establishments concerned with the retailing of petroleum products unless those businesses are operated by an employer whose principle activity is transportation, storage and sale in bulk of petroleum and related products.

PN6913

Now, the import of those words is this, your Honour. That what we say is that if you are minded to grant this particular application, those words would allow the applicant to enrol as members non-fuel convenience stores, so the 7/11s and others of this world, and it would allow them to continue to represent service stations, service station convenience store operations, which emerge from the traditional APADA membership. Now, if one goes back, your Honour, to the application itself, that in effect is what they say they wanted. What the applicant said in their application is that we want to be able to follow our members and accommodate our members insofar as they’re involved in convenience retailing.

PN6914

Your Honour, if that’s what they want to do that’s fine. We won’t seek to prevent them moving, if you like, into the service station field if it involves following their traditional membership. We acknowledge the reality of that, that the majority of APADA members are now involved in fuel retailing.

PN6915

THE SENIOR DEPUTY PRESIDENT: But the implementation of the principle activity, is there any reason why you couldn’t perhaps have operated by the employer who is also engaged in business of transportation, storage and sale involving petroleum related products? I mean, this is hypothetical. I’m not saying that - - -

PN6916

MR FORBES: Yes, it’s always a bit hard to drafting on one’s feet. But your Honour, no, we say the principle activity is still critical because that’s the nexus to APADA, that’s the traditional APADA rule. So where the business is ancillary to their core traditional business of distribution, then we acknowledge the reality that distributors are now in the retail fuel and they’re operating service stations and convenience stores and if that’s what they want to do, well that’s fine.

PN6917

THE SENIOR DEPUTY PRESIDENT: But their operation of retail stores might have become their principle activity rather than the transportation and storage and sale in bulk. That’s all I’m getting at. They may have now a whole range of service stations.

PN6918

MR FORBES: Yes, I understand that. And when it becomes their principle activity we’re happy to look after them.

PN6919

THE SENIOR DEPUTY PRESIDENT: I follow.

PN6920

MR FORBES: As we do.

PN6921

THE SENIOR DEPUTY PRESIDENT: Yes.

PN6922

MR FORBES: I have nothing further unless there are any further questions, your Honour?

PN6923

THE SENIOR DEPUTY PRESIDENT: No. Thanks very much, Mr Forbes. Yes, Mr Wood.

PN6924

MR WOOD: Thank you, your Honour. Your Honour, may I start first with the construction point and I simply make two points. The first is that if the conjunctive construction that my learned friend says is a nonsense is a nonsense and there isn’t a petroleum distribution, marketing, convenience retailing industry, then the ordinary rules of construction suggests that one should adopt a disjunctive or distributive construction. That is applying common sense approach to the words used, should one give it a conjunctive construction which would leave it odious, or should one give it a disjunctive construction which would give it some work to do?

PN6925

The answer to that on all the proper rules of construction is one gives it the disjunctive construction. That’s simple so that the industry is read as a combination of the petroleum distribution industry, the petroleum marketing industry and the convenience retailing industry.

PN6926

THE SENIOR DEPUTY PRESIDENT: Why wouldn’t in the form of the words petroleum qualify convenience retailer as well?

PN6927

MR WOOD: It could, your Honour. That would be one construction that would be open. It’s not the construction that we say should be adopted by your Honour, that the better disjunctive construction is to regard the convenience retailing industry as another industry alongside the petroleum distribution industry and the petroleum marketing industry. The difficulty with the petroleum and convenience retailing industry, if that is the way your Honour construes it, is that it’s a quite narrow industry if indeed it is such an industry and having regard to the persons who are coming together to form this association, it would exclude almost all of the members of AACS if one was to construe the words “convenience retailing industry”.

PN6928

THE SENIOR DEPUTY PRESIDENT: I understand that. I was looking at more in terms of the structural syntax. I mean, I suppose if it was to be petroleum convenience retailing then it doesn’t ..... or as you say, it wouldn’t allow other convenience retailing apart from those that are involved in petroleum industry of some sort.

PN6929

MR WOOD: Well, if there was in fact, your Honour, it gets to the same point I made on the primary submission about the conjunctive versus the disjunctive. If your Honour was to read the disjunctive construction as including a petroleum convenience retailing industry, that would be susceptible to the same analysis as the larger conjunctive construction, that is there’s no such industry. I don't know of a petroleum convenience retailing industry. Your Honour might be able to find that there sis such a - - -

PN6930

THE SENIOR DEPUTY PRESIDENT: I’m not suggesting there is but I’m just – and I don’t know that the evidence suggests there is.

PN6931

MR WOOD: The evidence doesn’t suggest that your Honour, the evidence best suggests that there is in the US a petroleum and convenience retailing industry, but not a petroleum convenience industry. That’s the - - -

PN6932

THE SENIOR DEPUTY PRESIDENT: Why must there be an industry? Is there any other descriptive that would – I mean we know there are convenience stores, where there’s convenience retailing, why must it be described as an industry why couldn’t it be something else?

PN6933

MR WOOD: In what sense your Honour in terms of the rules, or in terms of what the person on the street might - - -

PN6934

THE SENIOR DEPUTY PRESIDENT: In terms of what the person on the street would understand.

PN6935

MR WOOD: It could be called something else. The convenience store could be called a convenience store it could be called part of the retail industry. It could be part of the convenience retailing industry, it could be a service station. There are a range of names that might apply to the same enterprise.

PN6936

THE SENIOR DEPUTY PRESIDENT: I mean it’s a phenomenon that seems to have – perhaps I’m getting away from the evidence – but it is a phenomenon that seems to have replaced the traditional corner shop, or corner store.

PN6937

MR WOOD: Yes, your Honour and if one looks at the construction point in that way, does one construe it as the petroleum distribution market in convenience retailing industry conjunctively, no because that would be meaningless. Does one construe it as the petroleum distribution industry and the petroleum marketing industry and the petroleum convenience retail industry, no, because the third limb of that would be meaningless. So one construes it on a proper commonsense approach disjunctively as the petroleum distribution industry the petroleum marketing industry and the convenience retailing industry.

PN6938

That is a standard application of the rules that govern eligibility rules, contracts, written instruments and statues that one approaches these things on a commonsense basis to try and give business effect to documents that govern business enterprises. There is nothing unusual about adopting that type of construction and when one adopts that type of construction one can see that the body – sorry the rules, will then cover bodies whose substantial character is in the petroleum distribution industry, the substantial character is in the petroleum marketing industry, and whose substantial character is in the convenience retailing industry. That is disjunctively and meaning more.

PN6939

The point my learned friend makes is that you can’t read it conjunctively, well of course you can’t read it conjunctively we accept that. That’s why you have to read it disjunctively and that’s what all the rules of construction say. Once one reads it disjunctively the next point my learned friend makes is there’s no convenience retailing industry. Well that with respect is nonsense. If there’s a retailing industry which is accepted if there are convenience stores which is accepted, what is the industry constituted by the retailing that goes on from convenience stores convenience retailing that’s what is.

PN6940

THE SENIOR DEPUTY PRESIDENT: How do you overcome the findings then of Commissioner Palmer?

PN6941

MR WOOD: Can I say a lot of what underlined what Commissioner Palmer said and what underlines what my learned friend says is a misunderstanding of the nature of characterisation. You, your Honour, are a man, a human, mammal, a judge, you are all four of those things. In terms of characterising you, we can characterise you in all four of those categories. What Commissioner Palmer failed to do and what underpins the failure in my learned friend’s case is the failure to recognise depending on which category is chosen, the substantial character test might mean that one is in one industry, or two industries, or three industries, or four or five, just depending on what the nature of those industries are.

PN6942

That is one could be in the consumer industry and the retailing industry and the convenience retailing industry because if one was to draw a diagram each would be a subset of the other. There are other industries where the overlapping isn’t complete, and this is an example where petroleum retailing might merge into convenience retailing and there’s an overlap between the two. Not that petroleum retailing is the test, the test are the rules, it is a much more remote test to do with the retail motor trade. But that really is the problem with Commissioner Palmer’s analysis that he failed to recognise that the substantial character test when applied is not an either or. In some situations it’s an and, and, and sometimes and, and, and, and depending on the categories.

PN6943

Your Honour one of the cases we’ve handed up to you is the Dyno Nobel case. Your Honour this refers to all the cases, or most of the cases we’ve referred to in our submissions. It extracts the very point that I’m making now your Honour, can I take you to paragraph 33:

PN6944

We note also that, the 'enterprise' in which the project engineers and their employees were engaged was in or in connection with the metalliferous mining industry notwithstanding that it could also be characterised as within the civil construction industry. The Uranium Mining Case is thus an example of how industries may overlap and the one enterprise of an employer may have a substantial character that places it in two industries simultaneously.

PN6945

It just depends on the industries that one is trying to place the enterprise within and then paragraph 37 in the Queen and Isaac the Argyle Diamond case which is one of the cases we referred you to, there’s a quote from that case:

PN6946

A decision of the question whether a particular description fits an industry or calling involves matters of degree, and the answer may depend on the substantial character of the activities carried on. That does not mean that if the enterprise has two purposes, it is necessary to decide which is predominant. It is quite possible that an industry or calling can accurately be described in a number of ways, and the fact that it comes within one description does not mean that it cannot also come within another.

Then referring to what Justice Aickin said in the Queen and Moore:

PN6947

It does not, in my opinion, follow from the fact that it may be said that an employer is engaged in construction work that he may not also properly be regarded as engaged in activities in or in connexion with metalliferous mining.

PN6948

Now your Honour to some extent this is sort of logic 101 but it is necessary to make the point because what Commissioner Palmer does is quite inconsistent with what the High Court says the proper way to characterise an enterprise is. He takes an either or approach, that’s quite inconsistent with the way the substantial character approach should be applied. And your Honour is obviously bound to follow what the High Court says where it conflicts with what Commissioner Palmer says. Your Honour further on down that quote just before page 38.

PN6949

Further, it is difficult to agree with the conclusion that the primary and predominant purpose of the activity was the mining of the pipe. It could with equal truth be said that the primary and predominant purpose of the project was the production of diamonds, by mining the ore and reducing and refining it. There was a very close relationship between the construction and working of the mine and the reducing and refining of the ore. The fact that some of the work in excavating the mine and building the access roads was done by contractors does not prevent the work done in carrying out those activities from being connected with the reducing and the refining of the ores.

And then it’s a paragraph 42 just above 42 there’s a quote from the CPSU and EDS case and paragraph 90 of that case says your Honour on the top of page 16:

PN6950

However, we consider that the application of established principles of construction to an eligibility rule must take into account the statutory and industrial milieu. In particular in this case, the observation that the activity of an employer may fit the description of more than one industry has not diminished in force in the years that have now passed since a specification of an industry, of employers or of employees, was a necessary condition of registration for an industrial organization. Since 1996, the statutory tolerance of overlapping coverage between organizations and for that matter between businesses, whether defined as those of employers or of employees, has increased.

PN6951

That’s a decision in 2003 your Honour and further at paragraph 48, there’s a quote on the next page, page 18 where Chief Justice Latham observed and he says:

PN6952

A single employer may carry on two or more industries. The same man may be a farmer, a miller, and a baker so there’s a distinction between the industry which produces which produces flour in the industry and which produces bread. The fact that two industries are carried on at the same place does not abolish the distinction between them. The single company might mine coal and then use coal to manufacture gas alongside a mine it would nevertheless still be the case that the two industries were carried on by that company. One of them mining coal and the other the manufacture of gas.

PN6953

Then there’s a reference to the Argyle Diamond Company underlined:

PN6954

That does not mean –

PN6955

The same quote that I read out to you before your Honour:

PN6956

That does not mean if the enterprise has two purposes, it is necessary to decide which is predominant. It is a question of degree whether a particular description fits an industry of calling the answer may depend on the substantial character of the activities carried on. It is quite possible that an industry or calling can be described in a number of ways and the fact that it comes within one description does not mean that it cannot also come within another.

PN6957

That’s really the answer to Commissioner Palmer, your Honour. The secondary point about Commissioner Palmer’s decision your Honour is that he talks about the motor service industry. The motor service industry is not the relevant criterion for the purposes of the rules for the objectors. The rules of the objectors refer to something more removed from service and more focused on the motor trade. The rules of the MTASA refer to the retail motor industry and I’ll come to the additions to this, but at the core. The MTA New South Wales refers to the motor trade or business. It doesn’t used industry it uses business and deletes retail and the VACC refers to the motor business.

PN6958

The MTASA and the VACC then talk about allied trades or businesses. The MTA New South Wales talks about an allied or associated trade or business and the MTA New South Wales then goes on to say:

PN6959

Including the provisioning thereof and the supply of operating and running requirements.

PN6960

The Queensland MTA is quite broad in coverage, because you will recall the first two registered callings of employees being shop assistants and garage attendants. The SSA is open to both employers and employees you will recall your Honour but it refers to service stations, which is of course broader than the retail motor industry, or at least more direct application in this case. Now none of those rules refer to the motor service industry. They refer to the retail motor industry or the motor trade. It might be said, or it might be argued that the motor service industry is the same thing as the retail motor industry.

PN6961

Our contention is that the retail motor industry is what it says, the motor trade or business is what it says and the motor business is what it says, that is to do with the retail sale and servicing of cars, motor vehicles and perhaps other vehicles. But my learned friend makes the point, and it’s one we agree, that the industry of servicing of cars not a trade obviously but the industry or business of servicing of cars has changed and we accept that and indeed the reason that we accept that service station has a broad definition, is because the servicing of cars, has overtime morphed into the servicing of motorists as my learned friend puts in his submissions. Or as we would say, passengers it is not simply limited to motorists but people in the cars and if one gets the OED definition of service station, one sees that it’s a definition is to provide services to the cars and to the passengers therein.

PN6962

But that’s not to say that the servicing of the passengers in the cars is part of the retail motor industry. It is not necessarily the case. What’s happened is that another business has grown up which is conducted at the same time or in the same place as the previous business of serving motorcars but it’s a business that involves either servicing motorcars and the passengers in the cars, or servicing the passengers. The simple point we make is that at some point the character of that enterprise when it becomes focused the substantial character of which is focused on the passengers rather than the cars, takes it out of the retail motor industry because it’s not the substantial character of the enterprise is not an employer in the retail motor industry any longer.

PN6963

THE SENIOR DEPUTY PRESIDENT: It is not a natural adjunct you say to the trade industry?

PN6964

MR WOOD: Well your Honour it might fall within the phrase, allied business, company and allied trade, there’s no trade of being a shop attendant as far as I know. So at best it’s got to be an allied business to the retail motor industry. Now what we say is the allied business to the retail motor industry or the retail motor trade or the motor business is the business of servicing cars. That’s the allied business. Now there’s a business that’s allied to the allied business and that’s the servicing of passengers. Now your Honour might say well that’s sufficiently allied to the retail motor industry to form part of the allied business to it.

PN6965

Our construction or the view that we ask your Honour to adopt is that it is at some point and at least when the substantial character of the enterprise is one of convenience retailing it ceases to be an allied business to the retail motor industry. Now we could be wrong on that, and we accept that there is a possibility that my learned friend is right. It might be that every service station with a pump including a 7/11 with a pump is an allied business to the retail motor industry. My learned friend didn’t want to claim the 7/11 with the pump out the front, that’s a possibility we have to accept that.

PN6966

That it might be that even if the substantial character of the enterprise is one of servicing the passengers in the car, rather than the car itself, it could be, it still falls within the descriptor of an allied business to the retail motor industry. But the evidence of my learned friend relies upon on that point is simply what the VACC and other objectors have done over time. He says, well look we’ve enrolled people, people have joined up, we’ve created a convenience, service station and convenience store division ipso facto, people must be entitled to – ipso facto is a question of law those persons must fall within the description of the rules, it just doesn’t follow.

PN6967

There may be many members within the objectors who don’t fall within the rules of the objectors and what the objectors have done over time, is instead of coming to the Commission to refresh their rules to make it clear they can cover these people, they’ve just created a division and my learned friend laughs at that, but that’s what they’ve done. Now it might be that that’s fine it might be that because the phrase, allied industry to the retail motor industry is so broad it might be it does cover service stations and convenience stores.

PN6968

The construction that we ask your Honour to adopt is that it doesn’t. There’s got to be a limit as the High Court have said in relation to the similar phrase, in or in connection with, that an allied business can’t mean anything that involves a motor car.

PN6969

THE SENIOR DEPUTY PRESIDENT: Would you accept that it might be the allied business, the motor trade allied business, or a denotation of that is that you get all sorts of things that are attaching themselves to services stations and allied convenience stores?

PN6970

MR WOOD: That’s a possibility your Honour.

PN6971

THE SENIOR DEPUTY PRESIDENT: Within the principle of the Waterside Workers case where they were – the Waterside Workers and CBH, the rules allowed them to enrol people who were engaged in loading grain, bulk grain at some distance away from the waterside because that was still part and parcel of the work that they did at the waterside. Would you say it would come within that sort of concept?

PN6972

MR WOOD: I would have to look at the case your Honour before whether saying that case applied. But is it possible that the phrase allied business could be read as including the types of enterprise that are identified, yes it is possible. We can’t deny that because they are very broad words. I mean this is the difficulty for us. My learned friend says we want a generous broad construction of our rules but we’ll deny it to you. We want allied business to the retail motor industry to involve, not just the sale of the cars, of used cars, not just the service, not just their service in motor garages, but the service of passengers who come to service stations in cars.

PN6973

That’s what he says, that’s how far it should go and that could be right, we accept that that’s what is good for the goose is good for the gander. He’s entitled - the objectors are entitled to a broad construction of the rules. They are entitled to for your Honour to find that allied business has the meaning that they contend for. But the consequence of that is that the same rules apply to the construction of convenience retailing industry and the convenience retailing industry has to be given its full meaning and the impact of that is that the overlap is profound.

PN6974

Our primary contention of course your Honour is that there is no overlap because we give allied business an narrow meaning and we say that once the substantial character of the enterprise becomes that of convenience retailing rather than the servicing of the car, approaching on the substantial character test, then it moves outside the rules of the objectors until such time as the objectors refresh their rules. In which case the interaction between convenience retailing and the rules of the objectors is very limited. But if we’re wrong about that and allied business is read broadly, then the interaction is very broad.

PN6975

That your Honour, then brings us to the point of well what is the interaction? There one has to first - my learned friend is quite right about this it’s not a question primarily, he didn’t say primarily he said it’s not a question I’ll just get his exact words – membership is not relevant to the question of intersection in any way. It’s not defined by the membership or inferred by it. That’s not correct your Honour. It is true to say that the primary proposition that he puts is true. It says you’ve got to look at the rules. That’s what you are testing. You are testing one set of rules against the other.

PN6976

Of course that’s quite right and it follows from that that your Honour has to give some meaning to what allied business under the objectors rules means and your Honour has to give some meaning as to what the convenience retailing industry is and once you do that, you will understand what the intersection is and so far so good. But there must be some meat to the bones and it’s not to the point that your Honour hasn’t identified every possible enterprise that might fall within the intersection of those two classes because courts don’t work on that basis. Courts work on the basis of the best evidence. They make whatever assumptions they can from the evidence that’s available.

PN6977

The best evidence for making that assessment is the membership list. Of course it’s not perfect. Of course it’s not complete, of course it’s not – one can’t be definitive about it but it is the best evidence available and for my learned friend to say it’s not in any way relevant to the question of intersection is quite wrong. It is just the best evidence it’s not complete, we accept that. There may be persons who could fall within the objector’s rules, who are not members of the objectors. We accept that, it’s quite possible a lot of allied businesses that could fall within their rules that are not members.

PN6978

There are a lot of persons who could fall within the descriptions of service stations who are not members. But one has to make the best of what one has got and one has to try to estimate what the nature of this intersection is and we’ve done that by reference to the rules of the relevant division and the membership of the relevant division of each of the objectors. My learned friend hasn’t sought to point to any other evidence, so that’s the evidence. You will recall your Honour, your Honour asked a question we were on this point about intersection. You said are there any authorities for the proposition that membership is not relevant to conveniently belong.

PN6979

You may remember my learned friend moved from saying membership is not relevant in any way to intersection to then saying, the follow up point is membership not relevant in any way to conveniently belong. Well that is of course wrong, it must be because once the membership is or whatever evidence is there to define the class, and your Honour can make your own observations about what you think the size of the class is. But the size, the membership lists will help in that regard. Once you make that assessment of the size of the class, it may be that your assessment will be that it’s three times bigger than the membership list, or four times, or five times, or whatever.

PN6980

Once you make that assessment as to the size of the class, then the facts of the number of persons within the class who are members of the objectors is relevant to reasonably belong, because they are voting with their feet. If the size of the class is 10,000 people and within that class there are 50 members of the class who are members of the objectors, then that’s a fact that shows that it is difficult for the objectors to meet their onus of showing that that class more conveniently belongs with them because they’ve been around forever and no one has joined them.

PN6981

Your Honour can I just say on that point that we ask questions of each of the witnesses in relation to the membership list. We asked the questions based on the construction that we are going to ask your Honour to adopt. That is, that the retail motor industry and allied business stops at the point that the substantial character of the enterprise becomes that of convenience retailing. We could be right about that, we could be wrong, but that’s the basis on which we ran the case, and that’s the basis on which we ask the questions of the witnesses.

PN6982

THE SENIOR DEPUTY PRESIDENT: Could you just say that again?

PN6983

MR WOOD: We say that once the substantial character of the enterprise and we can call it a service station, because a service station describes those bodies which serve both motor vehicles and the passengers therein. Once the service station, the substantial character of the service station becomes that of a convenience retailer, we say that it ceases to be an allied business to the retail motor industry. We could be right on that, we could be wrong, and it might be that your Honour finds that the businesses that are allied to the retail motor industry include all service stations. Even those which are almost overwhelmingly convenience stores.

PN6984

Your Honour is entitled to form that view but we are asking your Honour to find and our questions were based on the assumption that allied business has a meaning as something allied to the motor vehicle industry and that includes and goes only so far as businesses whose substantial character is the servicing of motor vehicles. That is the traditional motor garage, car wash, people like UltraTune, those sorts of businesses. We asked each of the witnesses – now you will recall your Honour how this occurred.

PN6985

We said please give us your membership lists, because we think within your membership there are a very small proportion of your membership who are convenience retailers and most of your membership is made up of people who we can call motor garages. That is people who are focussed on servicing the cars rather than servicing the passengers within the car. Now it was a range of names of that concept that old style, petroleum retail, modern petroleum retailer, but the question is what is the substantial character of the enterprise. Now the first response we got to that was that we don’t understand what substantial character was. So then we had a fight on day one and we got the list.

PN6986

Now in the meantime, we had evidence from each of the witnesses, Mr Boldock, Mr Hatton, Mr Bowden, Mr Redfern, all said before we got this list, they put their statements in, don’t worry about the lists, you don’t need the lists, 90 to 95 per cent of people within our lists, our modern retailers. They all said that, that’s what they all said – I’ll give your Honour the transcript references because we went through it this morning. Mr Bowden, Mr Hatten, Mr Boldock and
Mr Redfern said. Mr Redfern was cross-examined on it, and he said he hadn’t actually checked the list myself but that’s what I would expect.

PN6987

Each of the witnesses were then cross-examined on it and after denying what substantial character was, denying it’s the lists, saying that 90 to 95 per cent of the people on the list were modern petroleum retailers the evidence as it was, was on the basis of the VACC Mr Lamb identified 99 convenience stores out of 403 on the list and 10 additional ones he was asked about in cross-examination that were designated Ampol by Mr Forbes, which is around 25 per cent of the list were convenience stores. He identified eight that weren’t even service stations, they were used car dealers or truck dealers or those types of things.

PN6988

La Rosa’s evidence was of course that he himself wasn’t entitled to be a member of the division. He said that people self assessed, that he’d never knocked an application back and he identified 16 convenience stores. So the best evidence about the list is from our witnesses who say it’s about 25 per cent convenience stores. In relation to the MTASA there were 127 on the list. Mr Boldock wasn’t of much assistance but Mr Clarke said there were about 33 per cent were convenience stores. That is 41 of the 127 about 25 per cent were not convenience stores, about 33.

PN6989

Now we obviously ask your Honour to make the conclusion that there were about 33 per cent on the list which were shown to be modern petroleum retailers convenience stores. The facts for New South Wales were very similar Bowden and Hatton both started at 90 to 95 per cent. When pressed, Hatton called to identify 60 sites that he visited 22 that he knew about otherwise which amounts to 15 per cent were convenience stores and Bowden got to 68 plus 39 which is about 20 per cent. So roughly on the evidence as we have it throughout the south eastern states, there’s a figure of between 15 to 33 per cent of the lists, which again not a complete description of the class, we accept that, but they’re the best evidence one has are modern petroleum retailers, ie convenience stores.

PN6990

Now the point that we make about that is that that’s relevant to conveniently belong. As well as being relevant to the intersection of the class. If those lists are taken to be a rough approximation of the size of the class, which is the best approximation one could give, other than your Honour taking three months off and touring around Australia to survey every one or some other survey being done.

PN6991

THE SENIOR DEPUTY PRESIDENT: Sounds very attractive.

PN6992

MR WOOD: If your Honour is with us in terms of where the objectors rules end, then the intersection is of the two classes, is not particularly profound. More importantly in relation to conveniently belong because one can draw inferences from the fact that the membership list has such a small number of convenience stores, one can say that the members have voted – that is the convenience stores, the modern petroleum retailers – have voted with their feet. Of course, there’s other evidence to show that which I’ll come to in a moment your Honour.

PN6993

But can I just say on that point, on the intersection and what it shows about conveniently belong, it’s a long way from where the case was pitched initially before we had access to the membership lists, and it supports what the applicant says about the distinction between old style petroleum retailers, motor garages, rag and pocket type operations to use the language of my learned friend and modern petroleum retailers, whose substantial character is that of a convenience store. Now all that might mean – it might not come to anything your Honour because your Honour might find that allied business means that the various objectors cover everyone in service stations, all service stations even those with a substantial character of convenience stores.

PN6994

But if your Honour does find that then your Honour can be assisted on conveniently belong, by the fact that the number of convenience stores, the percentage of the convenience stores of the – who are members of the various objectors is relatively small. Can I then move on your Honour from the intersection of the class point to the next point that my learned friend made and that is that there must be – I’m a little bit unfair to him – I beg your pardon. Could I then move on to the point your Honour of the question of conveniently belong and more effectively represent in relation to the evidence that was led.

PN6995

Once one has assessed the size of the class which one can do using the membership list facsimile and once one can construes the rules and uses the membership lists and facsimile for the size of the class, then the question is what evidence is there as to the important test to be applied that is conveniently belong and more effectively represent. My learned friend said there’s no evidence from members of the relevant class. Now that strikes us as quite extraordinary that Gough, Lam and Clarke, don’t fall within the relevant class. They don’t have enterprises whose substantial character is convenience retail.

PN6996

THE SENIOR DEPUTY PRESIDENT: His point was that they have their membership as a result of the petroleum distribution market.

PN6997

MR WOOD: That is really the submission that is sort of un-enlightenable by what the High Court has said in a range of cases and what the Commission says in Dyno Nobel. That these enterprises have substantial characters that could be that make them petroleum distributors, and could be that they are in the convenience retail industry. That is when one looks at it, and there was evidence about the amount of money that was obtained from the distribution activity and from the convenience retailing activities one can be in two industries at once.

PN6998

THE SENIOR DEPUTY PRESIDENT: Yes, I understand that, but I understood from Mr Forbes’ submission that his point was that you can’t count them because they already have membership and they don’t form other new class that will be eligible for membership as a result of the alteration to the rule.

PN6999

MR WOOD: Well they would be your Honour. Because they would be eligible because they - - -

PN7000

THE SENIOR DEPUTY PRESIDENT: They’ll be eligible but they’re already eligible and once a member always a member.

PN7001

MR WOOD: That’s true your Honour, but if they would be eligible because of the fact of their convenience retailing operations first. Secondly, all their evidence was about their convenience retailing operation, that’s all it was directed towards. Thirdly, there is nothing, there is no rule of evidence that requires that evidence about what people in the convenience retail industry want must be given by persons who are exclusively within the convenience retailing industry. It is just nonsense. The evidence from the objectors was largely given by talking heads and from a couple of people who were not associated with the convenience retailing industry - --

PN7002

THE SENIOR DEPUTY PRESIDENT: Sorry, talking heads, it reminded me of a piece of art work I’d seen some time ago.

PN7003

MR WOOD: Yes, your Honour. The two witnesses that gave evidence from a membership perspective were not associated with the convenience retailing industry. They were then matched and bettered by persons who had high exposure to the convenience retailing industry Mr Killeen, who is behind me here in court today and Mr Gough, Mr Lamb and Mr Clarke. Now it’s not to the point to say well they were already eligible for membership of the organization because they are giving evidence about things they know about which are the things which are relevant to the persons who would be eligible for membership as a result of the operation.

PN7004

They are the best evidence available in this case. Certainly it’s better than any of the heads of the service station convenience store divisions of any objectors and certainly better than Mr Halstead and Mr La Rosa. It’s just nonsense to say that you have to be a member of the convenience retailing industry exclusively to give evidence about the needs of the convenience retailing industry when you’ve been in the convenience retailing industry and you’ve been in it for decades. That’s just not how fact finding and the production of evidence works.

PN7005

Your Honour, once that is accepted then the evidence is overwhelming. The objectors can’t meet the onus that has been cast upon them. They can’t show that these persons who would be eligible for membership could more conveniently belong and that the objectors would more effectively represent the members. The evidence is all the other way. Not that we need to show that, your Honour can find that you’re neutral on that issue and the applicant still wins. The objectors have to show, they have to meet the burden and they have to show that they can more conveniently belong to their organizations and that they would more effectively represent those members.

PN7006

Having regard to the way in which we say the intersection of the class should be determined, and what inferences you should find from the evidence about the membership lists and particularly the nature of the evidence of Gough, Lamb and Clarke and Killeen, it just is not possible we would say on a fair reading of the evidence for the applicant, for the objectors, to meet the onus. Your Honour if that is the case, one wonders what is this case about? My learned friend got up and said well we’re not about protecting our monopoly position it’s not about protection of turf. Well what is it about if it’s not about that?

PN7007

Well of course it’s about the protection of monopoly, of course it’s about the protection of turf. You heard Mr Redfern himself give his evidence about how he was upset about the fact that there was an invasion on to his turf in 2004. This is what it’s about. The evidence as it is as to the members of potential members is that they prefer to join APADA and AACS that they are behind the merger, not that we need to show that your Honour, that’s really the cherry on top of the cream. We just have – the objectors just have to show that these persons could more conveniently belong to their organization and that their organizations could more effectively represent them and they haven’t done that.

PN7008

Your Honour can I just point you to one other case too, that follows from the Manufacturing Grocers case, it’s the BHP case in 1982, it deals with the question of the evidence that your Honour is entitled to take into account in forming a view as to whether there is such a thing known as the convenience retailing industry. The case is reported at [1982] HCA 68; 153 CLR 402, I think it’s in the bundle that you – I think it’s in an earlier volume your Honour.

PN7009

THE SENIOR DEPUTY PRESIDENT: Sorry, it’s what?

PN7010

MR WOOD: I think it’s in an earlier volume that you should have. Sorry I called it the BHP case your Honour, I meant to call it the BLF case.

PN7011

THE SENIOR DEPUTY PRESIDENT: Well that will help.

PN7012

MR WOOD: This citation is correct. At page 408 your Honour and this is consistent with something I think your Honour observed when we started the case making reference to the Manufacturing Grocers case is at 408:

PN7013

The eligibility provisions of the rules in a registered organization of employees serve the function of finding the general area or areas of industry or industrial dispute from which members can legitimately be drawn.

PN7014

Your Honour you will recall that there were submissions made that there’s got to be some specificity that’s not supported:

PN7015

-from which members can legitimately be drawn and from which the organization can legitimately be concerned. Since such eligibility provisions constitute a reference - - -

PN7016

THE SENIOR DEPUTY PRESIDENT: Sorry, there’s a reference to that bulk handling case as well I think.

PN7017

MR WOOD: Yes, your Honour:

PN7018

Since such eligibility provisions constitute a reference point the courts, Commission, employers and employees and other organizations in determining and ascertaining an organizations proper coverage of field operation they must be construed objectively.

PN7019

That’s a point we’ve made throughout the case your Honour, that is a question for you having regard to the proper objective material that your Honour can have regard to and there’s a range of reference to evidence from the largely from the objectors saying that they don’t understand what the convenience retailing industry is. Well maybe they do and maybe they don’t maybe it was convenient evidence to give, but it doesn’t matter because your Honour has to have regard to the – you have to approach that task of construction on a objective basis:

PN7020

In so construing them it’s permissible to pay regard to any common understanding among people concerned with relevant industries and particularly with the industrial matters of the ordinary application of the words used and to take account of the evidence of that common understanding furnished by the previous use of the words and the relevant organizations rules and in statutory provisions –

PN7021

Decision which we’ve provided to your Honour in the submissions:

PN7022

-determinations, awards, reports - - -

PN7023

And we’ve put together two – we’ve produced two state of industry reports:

PN7024

-and other papers concerned with the relevant industry or industries.

PN7025

Now as to the question of objective fact if there’s an association here concerned with convenience retailing, if there are magazines devoted to convenience retailing, if there is an association in America that is also devoted to convenience retailing and if there are bodies that are substantial industrial enterprises within Australia, including BP which title people, head of convenience retailing, those are all matters that your Honour can take into account. They are the common understanding among people concerned with relevant industries. That’s what they constitute.

PN7026

Now your Honour even if you didn’t have any of that evidence, say we didn’t lead any evidence on that point, your Honour would still come back to the basic point that you made to my learned friend. You accept there’s a convenience store, yes. You accept that there’s a retail industry, yes. Now without any evidence one can show that there’s a convenience retailing industry that is, the retailing that takes place in convenience stores. But we’ve got the relevant objective material to assist your Honour in determining that there is a convenience retailing industry. The subjective evidence legitimate or disingenuous of the objectors is irrelevant to that question.

PN7027

It’s also irrelevant that Commissioner Palmer didn’t find that there was an existence of an association of convenience stores in Australia and that the history of convenience shopping overseas pointed to the existence of a discreet industry. The fact of convenience stores is admissible in this case. The fact of convenience shopping overseas and the fact that there is an association overseas and an association here are admissible objective facts to allow your Honour to form the conclusion that there is a convenience retailing industry. Despite the errors made by Commissioner Palmer, despite him misapplying the substantial character and thinking that it was either or, despite him referring to the motor trade industry as the motor service industry and despite the fact that it was in a different context.

PN7028

Even if this decision was properly made, even if it applied the test properly, there is nothing to prevent someone coming along 10 years afterwards and saying on the evidence before you, you should be satisfied that there is a convenience retailing industry. There is no difficulty with that. This doesn’t bind your Honour, it doesn’t constitute an issue estoppel there is no action estoppel, the AACS didn’t appear in the case, AAPADA certainly didn’t appear in the case and your Honour really if this is the best – if this is the high point of the case for the objectors, it says something about their case.

PN7029

Your Honour I don’t think you need to hear from me very much in relation to the 1986 and 2004 changes. I just make this one point about the Jones and Dunkel rule. It follows from what your Honour observed, if there was some oral or written agreement ancillary to the agreement which settled the case then that has to be proved. It gets proved in the normal method that is by the person who made the agreement on behalf of the objectors, that is Mr Russell. Mr Russell wasn’t called no excuse has been given for the reason that he wasn’t called apart from one that was given in final submissions in reply which is to this effect.

PN7030

Mr Russell has not been involved in the industrial area for over a decade and that’s why he is not called. That is not a reason not to call someone in your camp who was available who can give evidence about what he is said to have done on behalf of the organization at that time. If he had of been called, if some explanation had been given as to why he wasn’t called, then it may have been necessary for the applicants to call some evidence in response. But having regard to the normal operation of the inferences on the Jones and Dunkel basis there was nothing for us to meet.

PN7031

My learned friend I think admitted as much in relation to his questions from you, your Honour about whether or not there was any evidence of some undertaking or agreement to notify the objectors. He said there was none. Your Honour I don’t propose to address on the suggested modification made by my learned friend because it would just render this case a nullity. That modification would not take the situation – it wouldn’t expand the coverage of APADA any more broadly than it is now.

PN7032

THE SENIOR DEPUTY PRESIDENT: Even with the proposed variation that I suggested?

PN7033

MR WOOD: No your Honour because the whole of the AACS membership would be excluded from membership.

PN7034

THE SENIOR DEPUTY PRESIDENT: Yes I see.

PN7035

MR WOOD: Your Honour we would be prepared to give an undertaking to assist the applicants that we’re not interested in motor garages or old style petroleum retailers howsoever called. But it follows from our definition that is from the rules that we can’t cover petroleum retailing per se. We can’t cover petroleum. We can’t cover for example, a mechanics shop. We can’t cover petroleum retailing unless it is of the nature of part of convenience retailing. So to an extent that protection is already built in, in the rules but we could make that more exclusive if that was of some assistance to the applicant.

PN7036

Your Honour that’s really what we did from the beginning. My learned friend says they tried to change the meaning of the eligibility rule from the beginning. What we tried to do was explain what it meant to see whether the objectors were bona fide, it wasn’t really a turf war, because we could explain to them what we understood the provisions to mean and to see whether or not there could be any accommodation. Now there wasn’t any and the inference we can draw from that your Honour is this must be about turf.

PN7037

THE SENIOR DEPUTY PRESIDENT: I take it the parties did have some discussions with a view to try and resolve this.

PN7038

MR WOOD: Yes, your Honour. Your Honour is there anything else that you want to - - -

PN7039

THE SENIOR DEPUTY PRESIDENT: No.

PN7040

MR WOOD: Sorry your Honour, I think there’s something – yes sorry, I’ve just been asked to make some minor changes to our submissions. In two ways - - -

PN7041

THE SENIOR DEPUTY PRESIDENT: Is this the amended submissions?

PN7042

MR WOOD: Yes, your Honour. One of the points my learned friend Mr Forbes made is correct. He has asked us to withdraw a submission we make and we’ll do that. Your Honour I think it’s paragraph 71 for memory – I’ m sorry it’s 79(c) in the objectors submissions in reply they take issue with our characterisation of Mr Redfern’s evidence. At 79(c) we say that - sorry 79(b):

PN7043

Mr Redfern a witness for the VACC conceded he’d heard of convenience and impulse retailing industry.

PN7044

My learned friend makes a point he didn’t say convenience and impulse retailing industry he heard of convenience and impulse retailing. That’s what the transcript says.

PN7045

THE SENIOR DEPUTY PRESIDENT: You leave the word, industry deleted?

PN7046

MR WOOD: Yes, your Honour. Your Honour can I say that just repeat what I’ve said before, that the subjective views of these types of witnesses are not relevant unless they form some common understanding, some objective background facts.

PN7047

THE SENIOR DEPUTY PRESIDENT: Yes.

PN7048

MR WOOD: Your Honour and the other change we wish to make is to paragraphs 68 – sorry your Honour page 35 at the bottom of that page, we’ve confused Mr Bowden and Mr Halstead. Mr Bowden was the former president of the SSA who is now the chief executive and Mr Halstead is now the current president. Where we say:

PN7049

Upon his first analysis Mr Bowden marked approximately 60 sites –

PN7050

That should read Mr Halstead.

PN7051

THE SENIOR DEPUTY PRESIDENT: Sorry which part is it? The last full paragraph is it?

PN7052

MR WOOD: The last paragraph, yes 35(c):

PN7053

Upon his first analysis - - -

PN7054

I’m sorry your Honour I’ve got that wrong:

PN7055

Upon his first analysis Mr Bowden marked approximately - - -

PN7056

It should say 66 sites.

PN7057

THE SENIOR DEPUTY PRESIDENT: I see, yes. That should be Mr Halstead is it?

PN7058

MR WOOD: No it should be Mr Bowden, but it should be 66 and then:

PN7059

Mr Bowden then asserted knowledge of other sites based on many discussions and this yielded another approximately 22 sites.

PN7060

Which should read 39. It was Mr Halstead who said 60 and 22 and Mr Bowden who said 66 and 39.

PN7061

THE SENIOR DEPUTY PRESIDENT: Yes, all right.

PN7062

MR WOOD: Your Honour before I finish can I just take your Honour’s quick attention to that second case we handed up. The Spedley case.

PN7063

THE SENIOR DEPUTY PRESIDENT: Yes.

PN7064

MR WOOD: Your Honour this is a case of a decision of Justice Young in the Equity Division of the New South Wales Supreme Court. On page 3 there’s a reference to an issue that has – that the devil’s construction – contractual and other forms of legal construction concerning the question of what does an mean. The word an according to Sir Richard Blackburn can never mean or – and this is what Justice Young finds, he acknowledges:

PN7065

There are a series of English cases indeed there are some also in Australia where that result was actually achieved. However Blackburn J says that when one looks at the cases they fall into two categories, where to give an it’s natural meaning the result was so extraordinary as to create virtual unintelligibility and (b) where there’s a list which can plainly be seen to be class alternatives.

PN7066

Well we fall into category (a) your Honour in our construction point. If the commas in the phrase petroleum, distribution, marketing, convenience retailing industry are read as and, then the phrase becomes virtually unintelligible it must be read as or to give a proper disjunctive meaning, to give a commonsense interpretation so that it’s sufficient that an enterprise falls within either the petroleum distribution or the petroleum marketing or the convenience retailing industry to become a member. I don’t think there is anything else your Honour.

PN7067

THE SENIOR DEPUTY PRESIDENT: Thank you Mr Wood, Mr Forbes did you want to say anything briefly?

PN7068

MR FORBES: Just very briefly a couple of points your Honour. I just want to go back to Commissioner Palmer. I think the analysis of Commissioner Palmer’s decision is a little askew my learned friend consistently to Commissioner Palmer taking an either or approach. Was Commissioner Palmer did was to find as a matter of objective fact that no convenience store industry existed. As a matter of allocating from one industry to another he found as a matter of objective fact that the contention of the existence of a convenience store industry could not be made out. No such industry exists.

PN7069

THE SENIOR DEPUTY PRESIDENT: A convenience store industry.

PN7070

MR FORBES: His proper words were:

PN7071

The assertion that there exists in Australia a clearly designated convenience store industry and further the concept of what construes a convenience store can be easily and properly identified for the purposes of defining the scope and application of a convenience stores award.

PN7072

So it was the convenience store industry.

PN7073

THE SENIOR DEPUTY PRESIDENT: Yes and you say there’d be no difference between a convenience store industry and convenience retail industry?

PN7074

MR FORBES: No. As to the issues my learned friend raises in relation to the lists exercise if I can refer to it that, your Honour, he is on the wrong tram entirely. Your Honour the lists just to clarify my submission is that the lists do not go to the defining of the relevant class. If there be any relevance in the lists it goes to the question of who are members of the objector organizations for the purposes of conveniently belong, who currently makes up the list insofar as that those lists are in any way probative they carry extraordinarily little weight because all it was, a memory test of the witnesses as to where they’d been.

PN7075

I make the point in my submission your Honour if the chief executive officer of one of the organizations had come along with the list under his arm and he’d not been to any of these sites what difference would that make? There must be a presumption of regularity.

PN7076

THE SENIOR DEPUTY PRESIDENT: What about Mr La Rosa’s evidence when he said he’d never rejected anybody and he himself was not eligible to be a member?

PN7077

MR FORBES: At that current time when he had conceded he’d made a mistake. He thought he was because he had an interest in a business, which had now taken over the whole business, but he conceded his mistake. The important point is this your Honour and I think this tends to be lost on the applicant. Nobody forces anybody to be a member of the objector or to be a member of one of the relevant divisions. Employers in effect self select they clearly must be – the only inference once can draw is that they must consider themselves to be in motor trade or allied industry and if they choose to participate in the division, they are a service station and or convenience store.

PN7078

They put themselves there as the applicants own witnesses have done. Your Honour just in terms of construction can I say that your Honour there’s a line of authorities food preservers, and others to which I think we’ve both referred regarding the construction of eligibility rules. Your Honour that is the approach to take to construction of eligibility rules, not apply to principles of contract law. My learned friend’s submissions go into some detail about contractual construction. Construction of contract, courts assume that a bargain has been struck between two parties and try to give life to that rather than strike it down.

PN7079

This is a very different exercise this is about construing the parameters of an electorate if you like. It’s not about wholly – it’s not about finding what the two parties to a contract actually meant between themselves. So we say that that’s not the appropriate thing to follow.

PN7080

THE SENIOR DEPUTY PRESIDENT: By the way have you provided me with any authority or precedence on the meaning of allied motor trades and allied?

PN7081

MR FORBES: No. We’ve not taken your Honour, we’ve not - - -

PN7082

THE SENIOR DEPUTY PRESIDENT: Are you aware of any by the way?

PN7083

MR FORBES: Not off the top of my head, there are bound to be some specifically in relation to this industry. Commissioner Palmer’s decision goes largely there and as a matter of objective fact your Honour the existence of the award and the membership of the relevant organizations clearly goes to the sorts of businesses which would consider themselves to be allied to the motor trade, not everyone’s car dealer and the replenishment of vehicles has been regarded as allied. Indeed, service stations have been members of the objector organizations since the twenties, since inception. I don’t think there’s any contest about that.

PN7084

Your Honour the concluding point is simply this that almost everything that my learned friend puts by way of argument turns on an acceptance that there is a convenience retailing industry. It goes to the way in which the rule is constructed. It goes to the way in which the membership is sought – our membership is sought to be split up into those that are substantially involved in one rather than the other. Everything turns on there being the proposition that there is a convenience retailing industry being accepted. In our submission the evidence simply doesn’t point to the existence of that industry.

PN7085

THE SENIOR DEPUTY PRESIDENT: But your client Evictus or for the most part have a convenience store division or convenience retailing store division?

PN7086

MR FORBES: Yes, in every service station and convenience store division, hence the expression used I think, universally.

PN7087

THE SENIOR DEPUTY PRESIDENT: There was no evidence was there why they established a division of that nature?

PN7088

MR FORBES: Look your Honour I don’t recall there was anything, nothing springs to mind specifically on that point other than I think the changes made in the mid nineties as far as VACC was concerned, but I don’t think there was any other evidence. Your Honour we say that a global assessment of the evidence points all in one direction and that is it is a single universal inseparable enterprise constituted by service stations and convenience stores. Different shapes and sizes. Different colours. Different lights and air conditioning, but essentially different versions of one and the same. There’s one other matter that I just wanted to raise before I sit down.

PN7089

THE SENIOR DEPUTY PRESIDENT: Sorry just before you go on then, you would say that convenience stores attached, or convenience stores that operate with service stations is a denotation of allied motor trades?

PN7090

MR FORBES: Yes. I think the point your Honour that Mr Wood made – and I’m trying to find my note – yes he said that what’s happened, his version I think of evolution is that what’s happened is that another business has grown up which happens to be at the same place. Your Honour that’s not the evidence, what has happened is that another business hasn’t grown up. The business has changed the service stations have evolved. They have moved from what they used to be to what they are today. The only change, the only change is changes in ownership. The final matter your Honour is simply a matter of housekeeping. You will recall there was a number of copies of membership lists and so forth provided, I’ve been asked whether those could be returned to the Commission on the completion of this case - - -

PN7091

THE SENIOR DEPUTY PRESIDENT: Sorry returned to? The ones held by the part issue?

PN7092

MR FORBES: The ones held by certainly the applicant be returned to the Commission there would appear to be no reason for them to need them beyond that.

PN7093

THE SENIOR DEPUTY PRESIDENT: Mr Wood what do you say about that?

PN7094

MR WOOD: That’s fine your Honour, two of them aren’t in truth confidential, the South Australian one is available on the web and the Queensland one - - -

PN7095

MR FORBES: No it’s not.

PN7096

MR WOOD: Yes, it is, do a comparison to the lists, we’ve done it. But we’ll return them, that’s fine.

PN7097

THE SENIOR DEPUTY PRESIDENT: If there is any dispute about that.

PN7098

MR FORBES: It doesn’t matter.

PN7099

THE SENIOR DEPUTY PRESIDENT: Okay anything else. I thank both counsel for their very helpful submissions, I will reserve my decisions and publish my reasons in due course. Is there any urgency about this? I’m taking a week’s leave.

PN7100

MR WOOD: Your Honour, I think Sir Owen Dixon said that it was better that a case be decided properly than decided quickly, but we’d like it to be decided properly and quickly. My client is obviously in the process of incorporating more closely with AACS and he can do that more fully if there’s a proper legal basis to do it, he has to do it on a not wholly satisfactory administrative basis, if there isn’t a legal basis to do it.

PN7101

THE SENIOR DEPUTY PRESIDENT: Yes, all right thank you the matter is adjourned.

<ADJOURNED ACCORDINGLY [12.37PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #EXHIBIT #ACC38 OBJECTOR’S OUTLINE OF FINAL SUBMISSIONS PN6735
EXHIBIT #ACC39 OBJECTOR’S FINAL SUBMISSION IN REPLY PN6735
EXHIBIT #APADA47 APPLICANT’S AMENDED OUTLINE OF FINAL SUBMISSIONS PN6735