C2007/2892, Transcript of Proceedings [2007] AIRCTrans 423 (27 August 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 17310-1

VICE PRESIDENT WATSON
SENIOR DEPUTY PRESIDENT O’CALLAGHAN
COMMISSIONER GAY

C2007/2892 C2007/2926

s.120 - Appeal to Full Bench
Appeal by Layton, Shane
(C2007/2892)

s.120 - Appeal to Full Bench
Appeal by North Goonyella Coal Mines Pty Ltd
(C2007/2926)

BRISBANE

10.06AM, TUESDAY, 14 AUGUST 2007

Reserved for Decision

PN1

MR P COPELAND: I seek leave to appear for the appellant, Mr Layton. My client’s not with me today. He’s in a remote mining location in Indonesia, your Honour, and is contactable by phone if I need instructions.

PN2

VICE PRESIDENT WATSON: Yes, thank you.

PN3

MR H DOWNES: I have with me MR S DEWBERRY. I am instructed by Gillespie Consulting Services Pty Ltd and I seek leave to appear for North Goonyella in relation to the appeal by Mr Layton and the cross appeal by North Goonyella.

PN4

VICE PRESIDENT WATSON: Thank you, Mr Downes. Leave is granted in both cases. Mr Copeland.

PN5

MR COPELAND: Your Honour, you have, I hope, my written submissions before you. I just want to elaborate on paragraphs 8 and 9 of them briefly please.

PN6

VICE PRESIDENT WATSON: Are they the submissions headed Appellant Submissions and 22 numbered paragraphs? I don’t think they’re dated.

PN7

MR COPELAND: Yes, your Honour. Undated, yes.

PN8

VICE PRESIDENT WATSON: Yes. We might mark those submissions,
Mr Copeland.

EXHIBIT #C1 SUBMISSIONS OF APPELLANT

PN9

MR COPELAND: I rely on those submissions, your Honour, and just elaborate on, as I say, paragraphs 7 and 8 of those submissions.

PN10

VICE PRESIDENT WATSON: Yes.

PN11

MR COPELAND: My submission is that the Commissioner acted on a wrong principle in deciding that the applicant could not rely on his representative’s error as an acceptable explanation for his delay in circumstances where he could have obtained a second legal opinion and lodged the application within time or two or three days out of time. The central consideration is the conduct of the applicant. In the present case the applicant relied on legal advice that it was pointless proceeding with an application because he was not eligible. The Commission found that the applicant’s conduct in delaying obtaining a second legal opinion and lodging the application - sorry - in delaying obtaining a second legal opinion and lodging the application within time or two or three days out of time completely denied him of the otherwise acceptable explanation of representative error.

PN12

There would be many instances of representative error before the Commission where the applicant hypothetically could have engaged a representative to obtain correct legal advice, or correct advice, and lodged within time. However, this test unfairly removes blameworthiness from the initial representative and imposes it entirely on the applicant if the applicant failed to lodge within time. It is an incorrect principle that delay in obtaining a second legal opinion is such blameworthy conduct to completely remove representative error as an acceptable reason for the delay. For these reasons and the reasons in my other submissions I submit that leave to appeal should be granted and the appeal upheld.

PN13

VICE PRESIDENT WATSON: So it’s at what you say is an incorrect principle that you’ve just identified is a House v King kind of error that warrants leave to appeal being granted and the appeal upheld. And what do you say is the consequence if we find that that is a House v King error? What should our task be?

PN14

MR COPELAND: I’d submit to substitute your own decision on the basis of the facts before you.

PN15

VICE PRESIDENT WATSON: To re-exercise the discretion based on the appropriate test and all of the relevant circumstances?

PN16

MR COPELAND: Yes, your Honour.

PN17

VICE PRESIDENT WATSON: Yes, thank you. Mr Copeland. Mr Downes

PN18

MR DOWNES: Thank you, your Honour. Your Honour, am I correct in assuming that we will deal first just with the appeal by Mr Layton and then in reverse order deal with the North Goonyella appeal? Or does your Honour wish to hear me on both matters now?

PN19

VICE PRESIDENT WATSON: I think we’re in the parties’ hands. Whatever is the most convenient way. But Mr Copeland was very concise in relation to his appeal. It may be just as easy to deal with that appeal first and then here in reverse order the cross appeal.

PN20

MR DOWNES: Certainly, your Honour. Might I assume, your Honour, that the Bench has received North Goonyella’s submissions in reply in relation to the appeal by Mr Layton?

PN21

VICE PRESIDENT WATSON: Yes.

PN22

MR DOWNES: They are submissions comprising five main numbered paragraphs and dated 7 August.

PN23

VICE PRESIDENT WATSON: Yes. We’ve received those submissions.

EXHIBIT #D1 SUBMISSIONS OF RESPONDENT DATED 07/08/2007

PN24

MR DOWNES: Thank you, your Honour. Your Honour, there is a timeline attached to those submissions to try and make the task of working through the chronology a little easier, it having been sent by fax, your Honour. I have one which just marks it up slightly in colour and contains one correction. There is a date next to the narration:

PN25

First solicitor requires there’s no jurisdiction.

PN26

Which incorrectly says Tuesday 13 March. It should be 6 March. Might I hand up three copies of the coloured timeline which contains that correction, just in hand.

PN27

VICE PRESIDENT WATSON: Yes, thank you. We’ll simply receive that as an amended timeline attachment A to the submissions.

PN28

MR DOWNES: Thank you, your Honour. Your Honour, the respondent in this appeal relies on its submissions and I just wished to make the following few points. I think it is now common cause that the decision of Commissioner Bacon in relation to the extension of time was a discretionary decision. The guiding principles which the Full Bench needs to take into account are dealt with in the written submissions. And a House v King type error needs to be identified in order for the appellant to succeed at the first hurdle, which is to be granted leave for this appeal to be further considered.

PN29

Your Honour, we say there is no such error and my learned friend has correctly and appropriate honed in on those paragraphs in his submissions which attempt to identify a House v King type error. Your Honour, we simply say that there is in fact no such an error. In our submission Commissioner Bacon did not establish or incorrectly apply a principle. If regard is properly had to those paragraphs of Commissioner Bacon’s decision, your Honour, he does not rely on or establish any principle as is contended for by my learned friend. He decides the matter in a purely discretionary way and he says, your Honour, that had the delay been two or three days, his decision might have been different.

PN30

He does not decide that it would not be unfair not to grant the extension, he simply says that taking all of the facts into account and the level of inaction, in fact more correctly, your Honour, what he says is the complete absence of an explanation for the periods of inactivity is what persuades him not to grant the extension in this matter. He does not, in my submission, your Honour, say that the principle that the appellant contends is one which is decisive in his decision on the extension of time matter.

PN31

Your Honour, further and to turn to the question which your Honour put to my learned friend, what were to happen if the Full Bench were to find that there is a House v King type error? It is quite correct that the Full Bench would then arrive at its own decision and substitute that decision for the decision of Commissioner Bacon. And as to the merits of the matter, your Honour, we say that Commissioner Bacon arrived at a wholly appropriate - he arrived at the right decision and we would urge the Full Bench agree to progress to the merits of the matter to arrive at the same decision.

PN32

If regard is had to that timeline, your Honour, there are lengthy periods of complete inactivity and all of the cases make it quite clear that when all of the circumstances are taken into account whether to grant the extension of time or not a key consideration is the degree of activity or the involvement of the applicant, him or herself, in pursuing a remedy through the Commission. And that timeline, your Honour, makes it quite clear that there is a total of 19 days of complete inactivity on the part of the applicant. There is an initial period of six days which an explanation is tendered that Mr Layton was waiting for reasons from North Goonyella. In my submission, your Honour, still no justification or reasonable explanation for a complete inactivity.

PN33

He then contacts his first solicitor and needs to wait for an appointment and eventually on 6 March is told, in our submission quite correctly, that he has no access to the unfair termination jurisdiction of this Commission. Your Honour, then there follows a period of six days of complete inactivity again and then what appears to be a coincidental meeting with a colleague on 13 March which is day 22 and the colleague suggests that he should contact somebody else and take further advice. Then there is a further period of five days of complete inactivity. In my submission, your Honour, it would have been this that appears to have been on Commissioner Bacon’s mind when he decided the extension of time matter.

PN34

There is, if one has regard to the transcript, absolutely no explanation whatsoever for this five day delay and then probably most damaging for the appellant, your Honour, I the subsequent two days of inactivity. On Monday, 19 March
Mr Layton telephones John Lenny to ask for his assistance. Mr Lenny then tells him I’m sorry, I have a conflict, I can not assist you, but here is the telephone number of a friend, give him a call, he may be able to assist you. It’s reasonable then to assume that Mr Layton would have been at or near a telephone. He was speaking to Mr Lenny.

PN35

It is quite reasonable to assume that it would have been possible for him to make the call there and then, but he does not. He waits another two days, your Honour. And this is just indicative of the absence of follow through or commitment on the part of the applicant to bring his application. And your Honour, we make one final submission in relation to this, in relation to the appeal. All of this assumes that the appellant did not already know that there was a 21 day time period in place that he had to meet. His witness statement is silent on this issue and the transcript, his evidence is completely silent on this issue.

PN36

It would have been very easy for the appellant to say at some point during the proceedings that he did not know. So to genuinely plead ignorance. And it borders on the - if not is a Jones v Dunkel type inference that can be drawn that his absence be tendered as evidence can only suggest that the evidence would have been against him. Because had he known, then he has no excuse whatsoever. Not, your Honour, that I am suggesting that ignorance, as I have dealt with in my written submissions, that ignorance should be an excuse. Your Honour, unless there are any questions those are my submissions in relation to the appeal.

PN37

VICE PRESIDENT WATSON: Do you accept, Mr Downes, that the way that you put the periods of inactivity, that the importance of the periods increases as one goes down the page on the chronology, as it were. How significant do you say is the first period of inactivity from the date of the termination to day seven?

PN38

MR DOWNES: Your Honour, I can probably best answer that in this fashion, and that is to come back to how Commissioner Bacon dealt with this. And he said had it been two or three days out of time, I think was the words that he used, his decision might have been different. And it is without question a discretionary decision and had that been all, had the first six days only caused him to be out of time, I would understand a Commission exercising its discretion under those circumstances. There might have been some question about him waiting for reasons from North Goonyella.

PN39

I don’t concede, your Honour, that that is an absolute excuse, but in the exercise of a discretion one might understand that a Commission might say if it was only that six day period I might understand if the Commission exercises its discretion to say that might qualify as a reasonable explanation. But as one moves down the timeline, your Honour, it is my submission that those time periods become even more critical, particularly in the context of the question did he know or didn’t he know. If he knew, and we don’t know, your Honour, whether in fact he knew about the 21 day time frame, our submission is that he should have known.

PN40

He was talking to lawyers through the process, talking about the very issue of getting access to the Commission. It’s not unreasonable that Commissioner Bacon inferred that he knew or ought to have known about the 21 day time period. It’s one of the very basic key elements that one considers when briefed on an unfair termination matter. Do you have standing and let’s get the application in in time. So I think those time periods become even more critical as one moves down the time frame. That, your Honour, not to say that the first time periods should be excused.

PN41

VICE PRESIDENT WATSON: Well, it could be said, could it not, that an applicant’s entitled to be inactive for 20 days after termination as long as they file the application within the 21 days? So the actual number of days of inactivity might not be that critical factor and in the notion of a period to file an application contemplates a facility of the applicants to consider whether to file an application, how to do so and to get advice on relevant issues and the like. I guess I’m suggesting that that first period might not be terribly significant in the scheme of things. The others may be more significant.

PN42

MR DOWNES: I take your Honour’s point and as I’ve submitted one might understand a Commissioner exercising a discretion. And I think Commissioner Bacon foreshadowed this. He said had it been two or three days his decision might have been different. But what is completely inexcusable is once you’re already out of time, to then continue with the delays towards the bottom end of the timeline, your Honour, for which there is just absolutely no explanation, the appellant does not even attempt to explain why he didn’t act promptly in those circumstances.

PN43

And your Honour, this against the backdrop of us not knowing whether in fact he knew or didn’t know. It would be incorrect to assume that he didn’t know about the 21 day time frame. In my submission it would be open as I think Commissioner Bacon found, that he knew our ought to have known of the 21 day time frame. And as I’ve referred to in my submission, in my written submissions, your Honour, excuse or ignorance of that 21 day time frame is not a reasonable explanation. So as we got, as one moves down that timeline his culpability or the level of blameworthiness that one might attribute to him certainly does escalate.

PN44

VICE PRESIDENT WATSON: Do you accept that in relation to the advice received on 6 March having regard to what your position is on the cross appeal, what you’ve said as to the nature of that advice, but do you accept that for the purposes of this appeal and the extension of time that that is a case of representative error?

PN45

MR DOWNES: A very interesting question, your Honour. It’s an error if it’s found to be incorrect.

PN46

VICE PRESIDENT WATSON: The Commissioner found the advice to be incorrect.

PN47

MR DOWNES: We obviously disagree with that. But if it is incorrect advice, that matter may be resolved quite shortly. But if it is incorrect advice then it is representative error.

PN48

VICE PRESIDENT WATSON: And if that is the case and if one were to have assumed that for the purposes of this matter, at this stage at least, that that’s the case then is in part the subsequent delay in inactivity in part the result of representative error? When someone’s told there’s no jurisdiction to file an application, then following that advice means inactivity, not activity.

PN49

MR DOWNES: And that’s how we’ve coloured the timeline, your Honour. I beg your pardon, your Honour. There is a six day period if inactivity there. Representative error is one of the factors to be taken into account. Had the appellant sat on his heels and done nothing for a very long period of time and if it is found to be true that that was all correct, that the advice was incorrect, taking into account all of the factors it might be correct to say that that delay should not be attributed or the blame for that delay should not be attributed to the appellant. But when one has regard to the subsequent periods of delay towards the bottom end of that timeline, your Honour, we say that if there is a question and a reasonable discretion to be exercised in relation to the initial periods of delay, the exercise of that discretion in favour of the appellant diminishes significantly when one has regard to the time periods towards the bottom end of that timeline.

PN50

VICE PRESIDENT WATSON: Thank you, Mr Downes.

PN51

MR DOWNES: Thank you.

PN52

VICE PRESIDENT WATSON: Mr Copeland.

PN53

MR DOWNES: Thank you, your Honour. My learned friend points out or submits that it’s a discretionary matter for the Commission to find that there was no acceptable explanation for my client’s complete inaction in not obtaining a second opinion. But that’s the very principle I point out. I submit that the principle flowing from that finding is that representative error is not an acceptable explanation for delay in circumstances where the applicant could have obtained a second legal opinion and lodged the application within time, or two or three days out of time. So I submit that that’s the principle to be taken from that part of the decision.

PN54

VICE PRESIDENT WATSON: So you don’t say that there was openly, on its face, the application of a stated principle, but you say that the way in which the decision was reasoned proceeds on a premise which amounts to a particular approach or principle which you say is in error?

PN55

MR COPELAND: Yes, your Honour. It’s tantamount to saying that representative error is not an acceptable explanation for delay. It’s the whole concept of representative error is that that’s what the delay is caused from. The applicant does delay because he’s acting under an error. Sorry?

PN56

COMMISSIONER GAY: Mr Copeland, which portion of the decision do you say bears out your tantamount point that you’ve just made?

PN57

MR COPELAND: I think it says it in two places where the Commissioner says that he could have obtained a second opinion within time. Paragraphs 33 and 36 of the decision.

PN58

VICE PRESIDENT WATSON: He says he attaches to weight to that point.

PN59

COMMISSIONER GAY: Mr Copeland, I would have thought that paragraphs 33 and 34 were most particularly directed to the Commissioner examining, as he says in paragraph 34, on the applicant’s version whether there’s an acceptable explanation for the delay after, and he gets himself to about day 22 and he’s not, it seems to me, overly forensic about this and that’s where there’s two or three days elasticity. It’s not the declaration that two or three days above the prima facie position, which of course is that the prescription must apply. That’s beyond any doubt, one expects. But the approach adopted by the Commission is to say that on the applicant’s version what is the explanation, is there an acceptable explanation, bearing in mind that under the principle the helpful note appears in the Act taking the Commission back to Brodie-Hanns, there must be positive satisfaction.

PN60

And it’s on that basis that the Commissioner says then on the respondent’s submission there’s no acceptable explanation for any delay beyond the 21 days. So whether he’s at day 22 or day 23 to allow for the mail or some delivery. But how does one explain these other when the applicant is alert to the problem as to the advice he has received. The Commissioner says what he says about whether he’s alert to the 21 days, or should have been, but it’s really not I would have thought a commentary of the Commissioner about what an applicant might or might not do in discovering that going to different solicitors, getting different advice until you get some advice that you think is right or sounds satisfactory.

PN61

But rather, going back to the firm ground of the principle and that is the need to be - together with the others, of course, they’ve got to give appropriate weight - but the need for there to be positive satisfaction that the time might be extended and on the applicant’s account there are these regrettably again day 22 or day 23, there are still substantial chunks of time for which there is no explanation.

PN62

MR COPELAND: I’m sorry. Which Commissioner or Vice President - you’re Commissioner Gay?

PN63

COMMISSIONER GAY: I am.

PN64

MR COPELAND: Thank you, Commissioner. Sorry. Commissioner, paragraph 36 of the decision over the page at the top of page 8.

PN65

COMMISSIONER GAY: Yes.

PN66

MR COPELAND: The Commissioner says:

PN67

However, a proper analysis of what occurred after about 13 March reveals that from that date there are delays for which the applicant has no acceptable explanation.

PN68

Well, the applicant - that 13 March was the date that he coincidentally, as my friend put it, met with an industry colleague who said well, you should get a second opinion. The explanation up to that point was representative error. He had been told that he was not eligible to make an application in the jurisdiction. My argument is that that meeting with the colleague about getting a second opinion is a turning point in the Commissioner’s decision. It was out of time at that stage, 13 March. It was I think one day out of time. That’s the 22nd day. So the Commission seems to - the decision is that up to that point there is an acceptable explanation for the delay which was, in our submissions, representative error, but from that point when he decides to get a second opinion or is suggested to him that he should get a second opinion, all the entire blameworthiness shifts onto the applicant.

PN69

The representative error is then void as an acceptable explanation in the Commission’s decision. No longer able to rely on the fact that he’d been told by his legal advisor that he’s wasting his time and he should go and run off and get a second opinion very quickly and he’s already out of time. So he’s still labouring under the representative error at that point. He’s still being told by his legal representative that he’s paid for and taken some trouble to go and get some legal advice from that he hasn’t got a chance. So the principle from the Commission’s decision is that representative error is not an acceptable explanation in circumstances where you can go and get a second opinion and lodge in time or two or three days out of time. And that’s what I argue is the wrong principles.

PN70

VICE PRESIDENT WATSON: But if he had have taken immediate steps to contact a solicitor and file an application he would be a couple of days out of time. Wouldn’t the representative error be the adequate explanation for the late filing at that point in time? But that’s not what happened. What happened was there was a further 10 days, 11 days went by and that’s where there does not appear to be an explanation for that period. At least to that extent.

PN71

MR COPELAND: The explanation all the way through was that he’d been told he’d had no chance. Now, the fact that he’s got a suggestion from a mate to get a second opinion is hardly weighty enough. It didn’t appear to persuade him that it was worth his while to do that. Now, that’s all open on the evidence.

PN72

VICE PRESIDENT WATSON: So you say that it’s not as if there was a second opinion received on the 22nd day, it was a suggestion that he do get a second opinion?

PN73

MR COPELAND: Yes.

PN74

VICE PRESIDENT WATSON: And any subsequent delays have slightly with a different character to the previous period, but is still coloured by the representative error that you alleged occurred?

PN75

MR COPELAND: Yes, your Honour.

PN76

COMMISSIONER GAY: But he’s guard, isn’t he Mr Copeland, from the time of the coincidental meeting with his mate? That’s the turning point, isn’t it?

PN77

MR COPELAND: Well, in the Commission’s decision, not in terms of my client, my client’s decision making obviously. But from the Commission’s decision that is the critical point. Up to that point representative error was an acceptable explanation from that point. It wasn’t. It couldn’t be relied on. He was under a positive obligation to move quickly from that chance meeting with an industry colleague in circumstances where he had professional legal advice to say he was wasting his time. That is the explanation.

PN78

VICE PRESIDENT WATSON: And you say it was not until second legal advice was given that really the effect of the representative error that you allege occurred was remedied and therefore the onus is on the applicant to do something very quickly. Is that the way you put it?

PN79

MR COPELAND: Yes, your Honour.

PN80

VICE PRESIDENT WATSON: So that the third period if inactivity was coloured by the representative error and so was the fourth as well, you say?

PN81

MR COPELAND: Indeed, your Honour.

PN82

SENIOR DEPUTY PRESIDENT O'CALLAGHAN: Mr Copeland, what do you say to us about Mr Downes’ assertion that there is silence from the applicant on the question of what knowledge he had about the 21 day time limit?

PN83

MR COPELAND: Mr Downes seems to suggest an adverse inference should be drawn from that. It’s true it wasn’t elicited in evidence-in-chief, but it was fairly there to be elicited in cross-examination. And the inference drawn by the Commissioner that the applicant knew or should have known was based entirely on his visit to a firm of solicitors that gave him incorrect advice. Now, in circumstances where you’ve contacted a firm of solicitors and obtained correct advice you might infer you also got incorrect advice in relation to the time frame, but the fact is that he got incorrect advice that he wasn’t eligible for the jurisdiction. So even if he did know about the 21 days he still was under the error of the representative in advising him that he had no prospects, he was excluded from the jurisdiction.

PN84

VICE PRESIDENT WATSON: So do you say that that finding by the Commissioner that the applicant knew or should have known that the statutory 21 day time limit was not a finding that should have been made? Do you challenge that?

PN85

MR COPELAND: Unless the Commissioner wanted to draw the adverse inference that it wasn’t led in evidence-in-chief, but inferring it from the mere fact that he’d gone to a solicitor that gave him incorrect advice is in my submission inaccurate, not open, not an inference open on the evidence unless he made the finding that an adverse inference could be drawn by the fact that it wasn’t elicited in evidence.

PN86

VICE PRESIDENT WATSON: Shouldn’t one assume that people know about the legislative positions unless they allege some ignorance or incorrect advice?

PN87

MR COPELAND: Yes, your Honour.

PN88

VICE PRESIDENT WATSON: And that wasn’t alleged, I take it? It wasn’t alleged that he was unaware.

PN89

MR COPELAND: No.

PN90

VICE PRESIDENT WATSON: And it wasn’t alleged that he was given incorrect advice in relation to the time period.

PN91

MR COPELAND: All that was alleged was that he was given legal advice he was excluded from the jurisdiction.

PN92

VICE PRESIDENT WATSON: And the legal advice was received during the time period.

PN93

MR COPELAND: That's right.

PN94

VICE PRESIDENT WATSON: So one assumes it was not for that reason, not for the reason of being out of time.

PN95

MR COPELAND: Which wasn’t the reason?

PN96

VICE PRESIDENT WATSON: Well, the reason why the advice - there’s a fair inference there that the advice would not have been that he was excluded from the jurisdiction because he was time - - -

PN97

MR COPELAND: No, not award covered it was the evidence, your Honour.

PN98

VICE PRESIDENT WATSON: Yes.

PN99

COMMISSIONER GAY: Mr Copeland, this is not a case where a person is approaching the Commission in relation to discretion claiming that they didn’t know or where the person is, as is sometimes the case and I put this as gently as I might, not a person who is unable. There are many applicants who are perhaps aren’t as well skilled in these things. But this is a person who wanted to act on their rights, seeks professional assistance. And I’ve no doubt looked at
Mr Downes’ authorities. There’s phrases there about the 1958 decision, 2007, there’s internet, there’s a great deal of material available in the registry, a lot of outreach activities.

PN100

I don’t say that necessarily supports an inference that he should have known, but this is an able person wanting to challenge, to act on their rights, goes to seek legal advice and in the presentation of an otherwise detailed case is silent on the point as to whether they were advised in relation to this basic, this most fundamental of points. You say there’s no negative inference capable of being drawn about that?

PN101

MR COPELAND: Of course there is, Commissioner, yes. But that none was drawn by the Commissioner. He seemed to base the reason on his decision that the applicant knew or should have known on the fact that he’d gone to a firm of solicitors, that he consulted a firm of solicitors. But the logical inference is that they gave incorrect advice. So it’s difficult to draw the inference that he was correctly advised in relation to (1) that he was advised at all and (2) it was correct, when the only evidence is he received incorrect advice from the legal representatives. But putting that 21 day, putting his knowledge or otherwise of the 21 day aside for one minute, even if he did know it was not relevant in circumstances where he was told by his legal advisor that he was excluded from the jurisdiction.

PN102

He was labouring under that advice. And in fact, you know, it’s fairly controversial whether he is award covered or not. That’s the cross appeal point. So there was a lot of doubt in his mind about whether - well, he was advised that he was unable to proceed with his application.

PN103

SENIOR DEPUTY PRESIDENT O'CALLAGHAN: If you apply the approach that’s been commonly applied since Clark v Ringwood Private Hospital, I think it was, do you say that there’s any of the time between termination of employment and filing of the application that should be fairly attributed to as lost time on the part of the applicant?

PN104

MR COPELAND: Your Honour, might I read a paragraph from Clark v Ringwood please?

PN105

SENIOR DEPUTY PRESIDENT O'CALLAGHAN: With the Vice President’s acquiescence, we’re in your hands.

PN106

MR COPELAND: I don’t have the paragraph number in my copy of the decision, your Honour.

PN107

VICE PRESIDENT WATSON: The copy of the decision is the report from the Industrial Reports, volume 74?

PN108

MR COPELAND: Unfortunately not the one I have, but I understand my learned friend ..... Your Honour, at page 419 of the Industrial Reports report. At the bottom of that page marked (3):

PN109

The conduct of the applicant is the central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example, it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of his or her representative and took no steps to inquire as to the status of his/her claim. A different situation exists where an applicant gives clear instructions to his/her representative to lodge an application and the representative fails to carry out those instructions through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged.

PN110

So what the Full Bench is saying there, your Honour, is that some months might be acceptable where there is no blameworthiness to be placed on the applicant. In my submission there’s no blameworthiness to be sheeted home to the applicant in the current situation. All he did was go to a solicitor, get advice that he was excluded from the jurisdiction, had a chance meeting with a colleague that suggest he get a second opinion, which he did but out of time 11 days and filed 11 days out of time. Now, there’s no glaring blameworthiness to be sheeted home to the applicant in those circumstances, in my submission, your Honour.

PN111

SENIOR DEPUTY PRESIDENT O'CALLAGHAN: So can I just be specific about that. If we look at the various periods of time from the termination of employment to the filing of the application where the applicant may not have been actively doing anything, are any of those periods of time not capable of being described by the proposition it was representative error?

PN112

MR COPELAND: Well, obviously prior to receiving the legal advice when the error occurred. But the Commissioner found it was the evidence that the applicant was waiting for written - the applicant received no written termination letter and no reasons for his termination that he could take to the solicitor to get the advice on. So he waited for that written termination, it wasn’t forthcoming, he made efforts to meet with his solicitors and they took several days to organise an initial meeting, he provided the information, they had a subsequent meeting to inform him of the advice which was on .....

PN113

SENIOR DEPUTY PRESIDENT O'CALLAGHAN: It was 6 March.

PN114

MR COPELAND: 6 March. So from that point on, your Honour, I submit that it’s open that representative error is an acceptable explanation for the delay in filing 11 days late.

PN115

SENIOR DEPUTY PRESIDENT O'CALLAGHAN: Thank you.

PN116

VICE PRESIDENT WATSON: And your primary point appears to be that the Commissioner was in error in failing to acknowledge that representative error was at least in part responsible for the delay not only prior to the 21 days but subsequently and that that amounts to House v King error.

PN117

MR COPELAND: Yes, your Honour. In fact he found that there was no explanation given by the applicant for those delays.

PN118

VICE PRESIDENT WATSON: And is that merely an assessment as part of the discretion? Why do you say that it’s an error?

PN119

MR COPELAND: I maintain my principle, error of principle. That would be more in the nature of not taking into account relevant material.

PN120

VICE PRESIDENT WATSON: Yes. Or a mistake as to the facts.

PN121

MR COPELAND: Yes.

PN122

VICE PRESIDENT WATSON: It could be alleged to be that.

PN123

MR COPELAND: Yes, your Honour.

PN124

COMMISSIONER GAY: Mr Copeland, you take us to that portion of Clark v Ringwood Private Hospital. It's a consequence perhaps of the dialogue with the Senior Deputy President. Those examples tease out different scenarios where instructions have been given and in this case there’s one element I must say troubles me, and that is an applicant seeks to have addressed on appeal the exercise of discretion in circumstances where even now the Commission hasn’t been advised as to a fundamental element, and that is whether the applicant knew of the 21 days. It’s likely, but one can’t know without going back to these cases and the examples that you point to, where reliance had to representative error and some principles have sought to be elucidated that in those cases instructions were given to lodge by someone who may or may not have known of the 21 days.

PN125

But in this case in rendering a fair decision to the applicant, there’s one element which is troubling, as I’ve already said, and that is for some reason, I don’t know what it is and it’s very dangerous of course for there to be any surmise, but one element is undisclosed and that is what is the truth of the matter? Did he know or did he not know? And one is meant to gloss over that and in applying the discretion one has regard in some sort of equilibrium, one expect, with fairness in relation to the respondent. If there was a key element of the respondent’s case which was simply not going to be disclosed, one would be on inquiry to, one expects, to see what it is.

PN126

And I must say I am in this case because I just don’t know why it is if it’s the case that the question wasn’t addressed or for some reason he just turned his mind away from it or didn’t examine it in the way that you’d normally expect in respect of adherence to time schedules requirements set by the parliament, you’d expect to hear about it if someone looking for beneficial legislation to be applied in their favour.

PN127

MR COPELAND: I’m at a loss to be able to satisfy you with anything there, Commissioner. The fact is it wasn’t raised. I was the representative at first instance but, you know, I’m not here to give further evidence I assume. I could, if you would prefer, I could get my client on the phone and put the question to him if you want to admit that further evidence.

PN128

COMMISSIONER GAY: It’s really a puzzling commentary on the case as it stands.

PN129

MR COPELAND: Indeed. And I appreciate that that would give you some concern, Commissioner. I can only repeat my previous submission that the evidence was that he was told by his legal advisors that he couldn’t go near the jurisdiction and the time limit may or may not have been known to him, but the evidence is that he was under the impression that he couldn’t make the application.

PN130

COMMISSIONER GAY: Thank you.

PN131

VICE PRESIDENT WATSON: But didn’t he also take issue with the finding of the Commissioner that the applicant knew or should have known of the 21 day period if that finding was made solely on the basis of an assumption of correct legal advice on the existence of the 21 day period? But the way you put it I think you said that if that was the basis for the inference it was not sufficient, that there could be an inference drawn from the general circumstances and knowledge of the law and other matters in any event. I took you not to be taking strong objection to that finding in circumstances where the applicant didn’t allege that he was unaware.

PN132

MR COPELAND: It’s not my strongest point, your Honour.

PN133

VICE PRESIDENT WATSON: Yes. Yes, thank you. Mr Copeland, can I ask you this further question. The Commissioner dealt with two questions in the decision. One the coverage by an award, award related provisions, award deriving provisions and secondly the extension of time. And it appears that there is a relationship between the two in the sense of the categorising the advice that was received by the first solicitor. Do you accept that in order to consider this appeal it is necessary and appropriate to consider the other issue that arises from the cross appeal?

PN134

MR COPELAND: Your Honour, I heard your exchange with my learned friend in relation to whether or not at law there has been an error is yet to be determined or is subject to an appeal. But in my submission it’s the understanding of what motivated the applicant, the subjective knowledge of the applicant that is relevant to the out of time portion of the appeal rather than the objective nature of whether or not the initial legal advice was in error or not. But of course if it was correct and he was not within the jurisdiction, then well that’s a separate, this matter then doesn’t have to be heard, or visa versa.

PN135

VICE PRESIDENT WATSON: Yes, it doesn’t need to be heard and even if it was considered any questions which bear on jurisdictional merit would have some bearing in terms of the Brodie-Hanns test, the rule of the factors. It may not be able to be a conclusive or strong view, but it is some regard to merit or jurisdiction issues in general in terms of the overall discretion of an extension of time.

PN136

MR COPELAND: I am struggling to see in my mind the relevance between whether the respondent did or didn’t know he was award covered and therefore eligible to make an unfair dismissal and whether the termination was harsh, unjust or unreasonable. I may be missing the point, but - - -

PN137

VICE PRESIDENT WATSON: I’m more thinking that if there was a full discretion exercise in relation to the extension of time issue and all factors are looked at, not simply the representative error and the explanation of delay.

PN138

MR COPELAND: Yes, yes.

PN139

VICE PRESIDENT WATSON: The other factors. And those other factors might bring in, at least in part, some consideration in jurisdiction.

PN140

MR COPELAND: Well indeed, your Honour. And while you’ve got me going on that I'll just reinforce my final ground for appeal in exhibit C1, appeal ground 3. We put forward a case at first instance whereby representative error was found not even to exist by Richards SDP and nevertheless in that case the discretion was exercised to grant the 11 day extension. Now, it is example only, but as far as the Brodie-Hanns principles of the last one on fairness between others, we put up an apparent unfairness between how other people have been treated in the Commission and the Commissioner at first instance didn’t address the submission at all - sorry - addressed the ground by merely repeating his finding that there was no acceptable explanation for the delay. And that’s at paragraph 40 of the decision.

PN141

So indeed, your Honour, there are other considerations, aspects of the appeal which may influence the Bench to exercise discretion and uphold the appeal, or grant leave anyway.

PN142

VICE PRESIDENT WATSON: Yes. Thank you, Mr Copeland.

PN143

MR COPELAND: Thank you.

PN144

VICE PRESIDENT WATSON: We’ll proceed to hear the other appeal.
Mr Downes.

PN145

MR DOWNES: Thank you, your Honour.

PN146

VICE PRESIDENT WATSON: And there are submissions I think headed Respondent’s Submissions on Cross Appeal, appear to be 11 paragraphs dated
27 July?

PN147

MR DOWNES: Thank you, your Honour.

EXHIBIT #32 SUBMISSIONS ON CROSS APPEAL OF RESPONDENT DATED 27/07/2007

PN148

MR DOWNES: Thank you, your Honour. I would ask that those submissions be adopted and I'll make just a few additional comments and I'll commence with this one, one that my friend pointed out. This is an interesting, these are two interesting appeals being heard consecutively because the outcome, I think your Honour, is that if the Full Bench is inclined not to grant leave in relation to the extension of time or grants leave but does not grant the extension, then the issues which are agitated in this appeal arguably become academic. There is then no application before the unfair dismissal application before the Commission.

PN149

But this matter, your Honour, I submit is not a matter which turns on a discretionary decision. It’s a matter which goes directly to the jurisdiction of the Commission and it is a matter in which it would be appropriate to grant leave. Your Honour, the thrust of the appellant’s appeal in this matter is that what Commissioner Bacon did in this matter was precisely the opposite of what in fact is required under what would be the appropriate test, and that is in essence to consider the definition of the term clerk in the context of the award as a whole. And I go so far, your Honour, as to say that that is trite. There are a number of authorities referred to which illustrate that.

PN150

What Commissioner Bacon did was he narrowed the award down and then he narrowed the definition down. For example, your Honour, it would appear if one has regard to the transcript and to page 11 of the appeal book paragraphs 10 to 12. Mr Copeland - the Commissioner says:

PN151

I don’t have a copy of the entire award.

PN152

This is in response to a question from my learned friend in which he inquires whether the Commission has a copy of the award before him. He says:

PN153

I don’t have a copy of the entire award. I certainly have extracts from that award.

PN154

And Mr Copeland says:

PN155

Might I hand up extracts that we say are relevant?

PN156

Your Honour, those extracts have been added to the appeal book and they should be tucked away at the back of the appeal book and they comprise pages marked 41 to 45 of the appeal book. Might I just inquire whether the appeal book has been supplemented with those four pages?

PN157

VICE PRESIDENT WATSON: These were forwarded, I think, from your firm Mr Downes subsequent to filing the appeal book, is that correct?

PN158

MR DOWNES: That is correct, your Honour. When the drafting the submissions commenced, I had a look of the appeal book and found that this particular exhibit was not included. So it was added a few days later.

PN159

VICE PRESIDENT WATSON: Yes. We did receive - - -

PN160

SENIOR DEPUTY PRESIDENT O'CALLAGHAN: I haven’t received that one, Mr Downes. In the event that it became significant I do have a copy of the award in its entirety.

PN161

MR DOWNES: Thank you, your Honour. I do have copies that I can hand up. But the relevance - - -

PN162

COMMISSIONER GAY: Of the whole award or just some extracts?

PN163

MR DOWNES: Just of the exhibit which was handed up.

PN164

COMMISSIONER GAY: Yes. I’m not prepare to say, Mr Downes, that I haven’t received what it is you’re referring to, but I'll be certainly assisted by what you hand up.

PN165

MR DOWNES: Yes, certainly. I will hand up, your Honour, just three copies of what was exhibit A. It is the extracts that were handed up and marked exhibit A in the proceedings below.

PN166

COMMISSIONER GAY: As long as you don’t lead me astray with extracts,
Mr Downes. That’s to be avoided.

PN167

MR DOWNES: Commissioner. I'll do my very best not to lead you astray at all.

PN168

COMMISSIONER GAY: Thank you.

PN169

MR DOWNES: Your Honour, the point I wish to make in relation to this particular exhibit is to illustrate what we say is the error that Commissioner Bacon made. And that is that he narrowed down the scope of the information that he was having regard to in order to make this decision as to whether or not Mr Layton was captured by or covered by these award conditions and that, we say, is contrary to the basic principles of the interpretation of industrial instruments and that is that they must be interpreted in their context having regard to all the relevant material.

PN170

There is by way of illustration one particularly relevant clause, your Honour, and that is the opening, the introductory paragraph to paragraph 5 and I raise this by way of illustration. Commissioner Bacon makes, and I will deal with this a little later, makes no finding in relation to whether or not Mr Layton fell within the classification level 5 of the award and he says it was not necessary to do so. But for example, your Honour, he would not have had regard on the materials before him to the opening sentence of clause 5.2 of the Award which says:

PN171

Four adult employees shall be classified in one of the following levels.

PN172

VICE PRESIDENT WATSON: Clause 5.2 in the extracts you’ve handed us?

PN173

MR DOWNES: No it’s not and that is my point, your Honour.

PN174

VICE PRESIDENT WATSON: I see.

PN175

MR DOWNES: That potentially key paragraph was not before Commissioner Bacon. Your Honour, I make that point just to illustrate that the exercise conducted by Commissioner Bacon by narrowing down what he was having regard to is diametrically opposed to the approach that he should have adopted, which was to have regard to the award in its entirety, not just certain clauses within the award and then furthermore to extract only certain words out of the clause and then have regard to those and say that the rest are irrelevant. The crux of the appellant’s case in this matter, your Honour, is to say that the determination of award coverage in this instance can not be said to be a matter of arithmetical precision or scientific certainty.

PN176

It would not be unfair, your Honour, I submit to say that the content of the award in its entirety might flavour the interpretation which is adopted in relation to the definition of a clerk. And by excluding a number of provisions from the award and tasks or duties or descriptors from the definition of clerk, that is where Commissioner Bacon fell into the first error, we say, exists.

PN177

VICE PRESIDENT WATSON: While you’re on the terms of the award, was there any reliance placed by your client on clause 1.4.1?

PN178

MR DOWNES: Your Honour I don’t recall it being an issue which was canvassed in the proceedings below. It was referred to your Honour, there were written submissions filed which I am also concerned might not have been contained in the appeal book. Both parties filed written submissions, they are referred to in the reasons and they are certainly referred to in the submissions before the appeal and it might be – I’m not sure what their status was in the proceedings below but it might be of assistance to the Full Bench if copies of those, of the parties written submissions were to be handed up as well.

PN179

I may be guided by my friend whether or not they were submissions in the ordinary course as one might have them prior to the hearing, whether they were admitted into evidence, I’m not sure what the status was.

PN180

COMMISSIONER GAY: Are these written submissions?

PN181

MR DOWNES: Before Commissioner Bacon.

PN182

COMMISSIONER GAY: Yes, I don’t know that I’ve got any.

PN183

VICE PRESIDENT WATSON: They are not in the appeal book and they weren’t filed and they might not be strictly in the nature of evidence, but they might be more in the nature of transcript where oral submissions are usually found and they’ve obviously supplemented the submissions of the part of the old submissions. They would be of assistance to supplement the appeal book by receiving them.

PN184

MR DOWNES: Thank you your Honour I have three copies of the respondent’s submissions. If I were granted a very short indulgence I could obtain additional copies of the appellant’s submissions, or the applicant’s submissions I beg your pardon that were filed before Commissioner Bacon. Yes, might I ask for a short indulgence, make the copies and hand them to your Honour’s associate and then reconvene once you’ve had the opportunity to cast your eye over them.

PN185

VICE PRESIDENT WATSON: Is it necessary to do that? We can simply receive the copies in due course when its available if you are able to proceed.

PN186

MR DOWNES: I am able to proceed your Honour.

PN187

VICE PRESIDENT WATSON: Yes, well do proceed.

PN188

MR DOWNES: I will make sure that these are provided to you.

PN189

VICE PRESIDENT WATSON: Thank you.

PN190

MR DOWNES: Your Honour in answer to the question - - -

PN191

COMMISSIONER GAY: Now can I interrupt you please, do these written submissions relate to the extension of time point or solely to the second point?

PN192

MR DOWNES: They relate to both Commissioner. In response to the question reference is certainly made to clause 1.4 of the award in those written submissions.

PN193

VICE PRESIDENT WATSON: Can I interrupt, I apologise Mr Downes. You’ve made the submission that the decision subject to the cross appeal is a decision as to jurisdiction which is not a discretionary decision and not subject to House and King principles. Does it not follow then that our task in determining that cross appeal is to consider whether we agree that a conclusion reached by the Commission is either a direct conclusion or it wasn’t, it needs to have relevant elements in the sense that there needs to be the proper test and there needs to be appropriate findings of fact and the application the proper test to the facts and to reach a conclusion, but it’s not a matter of identifying errors in the decision making process as would be the case in a discretionary decision.

PN194

I raise that question as to the way you’ve advanced the first argument, the first appeal ground and correct me if I’m wrong, but it appears to be a criticism of the decision making process rather than the criticism of the outcome. We can only agree or disagree with the decision based on a complete consideration on what were all the circumstances.

PN195

MR DOWNES: Your Honour I’m in complete agreement with the proposition that your Honour puts to me and I can explain what might appear slightly anonymous in relation to the first appeal ground like this and that is just to say that the process adopted by Commissioner Bacon was wrong and it is – it’s to explain why he got to the wrong decision, I agree entirely with the summary that your Honour is providing in terms of how this appeal should be approached. In fact it has – there are two parts to it. Te first is to determine whether Commissioner Bacon’s decision was correct or not and that’s having moved past the lead point.

PN196

VICE PRESIDENT WATSON: Yes.

PN197

MR DOWNES: So no discretion decision was the decision correct or not and the first appeal ground explains by way of the process that he followed why he reached, in our respectful submission, why he fell into error, or how he fell into error. The more interesting, I think, or a very interesting issue is then the second part of this. If your Honour is inclined to the view that his decision and or his reasoning was inadequate or wrong, how the Full Bench then deals with reaching its own decision, in terms of what the answer to the question should be is Mr Layton, award covered or not and that’s the second part of the question.

PN198

VICE PRESIDENT WATSON: But is it relevant to us in an appeal of this nature to consider whether there were errors in the decision making process or ultimately do we need to consider only whether we agree with the conclusion or not in order to dispose of the appeal?

PN199

MR DOWNES: I think it’s just the second part your Honour. What I’ve done is just attempted to follow a logical train, or a thinking process to illustrate why the decision is wrong.

PN200

VICE PRESIDENT WATSON: Yes so it’s put on that basis that because of certain errors that you have sought to identify in the grounds, the decision was wrong and a different conclusion should have been reached and therefore a cross appeal should be granted.

PN201

MR DOWNES: That is correct your Honour.

PN202

VICE PRESIDENT WATSON: Yes, thank you.

PN203

MR DOWNES: Yes, this is quite central in House v King scenario it just doesn’t feature in this appeal instance. Your Honour we say that the decision is wrong in that – and that the Full Bench should arrive at its own conclusion if regard is had to a further – the way in which Commissioner Bacon approached this and this is to urge the Full Bench not to approach it in the same manner in arriving at its decision. What Commissioner Bacon did was that he conducted an exercise whereby he reviewed the 12 accountabilities and it would appear your Honour as if he considered them to be indicative of award coverage unless the contrary is proved.

PN204

If your Honour has regard to paragraphs 19 and 21 of the decision we site, Commissioner Bacon says:

PN205

There is no submission that the following accountabilities do not require the applicant to check or otherwise deal with the respondent’s accounts. I find that the accountabilities did require the applicant to so deal with the respondent’s accounts.

PN206

At 21 he says:

PN207

I’m satisfied that accountability 6 and 7 would require the applicant to calculate and or otherwise deal with the respondent’s records or accounts. I am not satisfied that weight ought to be attached to accountability 8. On the evidence it is not really obvious that the accountability falls within the definition in clause 1.6 the Clerks Award. I take the same view with accountabilities 10 or 12.

PN208

It would appear from that your Honour that if an accountability, or the impression one gains from reading that is that if an accountability did not appear to fall within the coverage of the award, then no weight was attached to it. The error we say that this illustrates, and that the Full Bench we submit should avoid in making it’s own decision, is that equal weight must be attached to those accountabilities that are indicative of non coverage, as accountabilities or evidence that is indicative of coverage because the correct test to adopt here your Honour is to try and establish what were his primary responsibilities or his primary functions and that is not just to have regard to those factors, tasks or vocations, that are illustrative of coverage.

PN209

But equally to have regard to those that are indicative or evidence of non coverage and in the final analysis to weigh those up and that’s the example that is illustrated so succinctly in Joyce and Christofferson, your Honour, where examples are given and there would be an endless array of these examples. The example given is of a Doctor who might perform some clerical tasks in the form of compiling medical notes regarding the status or treatment of a patient so that the Doctor on the next shift can continue the treatment. But that does not indicate that the Doctor might be covered by the Clerks Award.

PN210

It is indicative that some tasks might fit within that role but others might not.
The test which the Full Bench will need to conduct, is to determine or to attach equal weight to that evidence which is indicative of non coverage and in the final analysis weigh that up and determine what Mr Layton’s primary functions were.

PN211

VICE PRESIDENT WATSON: The primary functions or primary purpose? Is there a difference between the two? I know the latter terminology is the terminology used and applied many times by this Commission, Carpenter and Corona being one Full Bench example?

PN212

MR DOWNES: I will attempt to answer your Honour’s first question this way. Is there a difference, your Honour I’m not sure that there is. I don’t contend there to be, and also make the description I’m relying on the test that has been relied on by the Commission in many instances. Going back to Joyce and Christofferson, that is to determine what his primary functions or the primary purpose is.

PN213

VICE PRESIDENT WATSON: The primary function in the sense of the function of the role rather than the functions of activities performed in a more like a time, or a quantitative assessment of time on particular tasks, it’s not functions in that sense that you are referring to?

PN214

MR DOWNES: No, your Honour. It appears that what Commissioner Bacon has done is almost a kind of tick and flick exercise where there are the 12 accountabilities. He bases that on the conclusion, or his finding that the parties were at idem that that was a fair reflection of what Mr Layton performed, so that I concede that. But he’s then taken the 12 accountabilities, this one’s in, this one’s out, this one’s in, that one’s out, I’ll ignore those that are out, there are 9 of the 12 that are in, therefore he’s covered. That’s in a very crude nutshell, that appears to be the exercise that Commissioner Bacon has done and that the authorities are clear, is not the test that needs to be undertaken.

PN215

The test is not to arithmetically or precisely going to work out whether he spends two hours per day performing one particular task and at another specified period of time on his shift, performing some other task on his day at work. It is an overall assessment and that is where in our submission, the evidence of
Ms Woodam is the key and its weight was undervalued by the Commissioner Bacon. On an overall assessment of all of the functions and duties that he performed having regard to the award, and not just extracts of the award, but an overall flavour of the award did not for example, the telephonist type tasks, the very basic non supervisory clerical type functions that are clearly and succinctly defined in the award. If one has regard to that then an assessment is made, certainly not the process that Commissioner Bacon followed. We say that that was just culpably wrong.

PN216

VICE PRESIDENT WATSON: Do I follow you correctly there that there are two criticisms you are making. One is the notion that a quantitative assessment of time spent in particular tasks that are involved in the position, comparing those to tasks that might be covered by the award, you say that’s not the proper test, but you also in the course of that, say ignoring certain factors vis-a-vis is also an error, even if one is applying what you say is the wrong test, it should have consideration and everything. But the right test really is to look at what the primary purpose and function of the role is as against the coverage of the award. That’s an overall qualitative assessment.

PN217

MR DOWNES: I could not have summarised it better your Honour. That is precisely – those are the – that is the thrust of the appellant’s argument. Your Honour having on the basis of the oral submissions that I’ve made and the written submissions it then brings us to the very interesting question of what the Full Bench then does in terms of arriving at its own decision. Sorry your Honour, might I add just one – there is a third thrust to the appellant’s appeal and I wish to just emphasise this point.

PN218

We say that Commissioner Bacon fell into grave error when he decided that at paragraph 13 of his reasons on page 4 of the appeal book, he says:

PN219

Oversees the payroll function is in my view analogous to checks the payroll function.

PN220

The overseeing being analogous to checking is we say an error other than to say that they were analogous in his view, Commissioner Bacon advances no further explanation for considering them as analogous and we say that that is a significant error. It flavours a significant proportion of his decision. This is dealt with by my learned friend in his submissions in reply and particularly paragraph 1 of his submissions in reply he says that this issue applies only in relation to the – I beg your pardon at paragraph 3 of his submissions. He says:

PN221

In relation to paragraph 7 of the cross appeal submission, the Commission’s finding that oversees is analogous to checks is made only in the context of the payroll function not the entire context of the Clerks Award.

PN222

Your Honour, I don’t think that that is correct if regard is had to the remainder of the findings that Commissioner Bacon reaches. They rely also I think on that analogy being relied on and I think that is clear from paragraphs 15, 17 and 22 of the decision on pages 5 and 6 of the appeal book. In paragraph 15 in dealing with the second accountability which is no longer the payroll accountability, he says:

PN223

I am satisfied on the evidence and submissions that this accountability requires the applicant at the very least to check.

PN224

He does the same at paragraph 17, it is to downgrade I think your Honour, the overseeing role that the applicant had.

PN225

VICE PRESIDENT WATSON: Is there any evidence of other staff within the department that might report to – reported to the applicant in relation to these functions?

PN226

MR DOWNES: I beg your pardon your Honour, the first?

PN227

VICE PRESIDENT WATSON: Were there are other staff, in the nature of other staff in the department that reported to the applicant?

PN228

MR DOWNES: No there aren’t I might take instructions on it quickly – I think there are three or four purely clerical type people who report directly to
Mr Layton.

PN229

VICE PRESIDENT WATSON: That’s dealt with in the evidence of Ms Woodam?

PN230

MR DOWNES: It is dealt with in the evidence your Honour.

PN231

VICE PRESIDENT WATSON: So are you saying that overseeing in the sense of accountability number 1 and number 2 is more in the nature of supervision, responsibility within the nature of the role, or the function that might well be performed by employees who may well be clerical employees, rather than clerical activities as such performed by Mr Layton?

PN232

MR DOWNES: Yes, your Honour, our submission is that he is overseeing the clerical functions, the correctly described clerical functions that are being performed by his subordinates. In the submissions which we have filed, exhibit D2 we deal quite extensively with what we think the proper interpretation is of a superintendent and that where there is supervisory – there is a supervisory role being performed by the – or where the role includes a supervisory function, it is indicative of it not being a clerical role.

PN233

The clerical role, and this is where we take issue with Commissioner Bacon, and bringing my submission, I hope your Honour, full circle, by extracting only limited words, he’s removed himself from the ability to have an overall flavour for this particular role. If he had had regard to the full definition of clerk, one is left with the impression that it is intended to cover people in a performing work generally of a non-discretionary and non-supervisory nature. That’s not an absolute bar your Honour, but that is how one approaches the interpretation of awards in my submission.

PN234

To have regard to all of the factors and there may be something which at first flush is not immediately relevant or directly relevant but it flavours the overall approach at some point and as was dealt with in the decision, one could take this award and suggest that it covers the general manager of the mine. I don’t think anybody would seriously contend your Honour that that was ever the intention, and the general manager is not intended to be covered by the award. But if one adopts the kind of approach that Commissioner Bacon has adopted, one can well arrive at that and he anticipates that that may well be an outcome of the approach that he has adopted, which is why we say that the correct approach, primary function test is the one that needs to be adopted.

PN235

Again in a very crass sense, one might suggest that there is almost a smell test, or a sniff test at the end of the day that needs to be performed. One cannot draw a quantitative analysis of each of the tasks in the position description and say because 7 out of the 12 are arguably within the definition and 5 are arguably not, one is covered. That is what the line of authorities, in Joyce v Christofferson, and made very clear at Corona and the like. Your Honour might I then just deal with very quickly I’ve dealt at paragraph 3 of the submissions by my learned friend in relation to this appeal.

PN236

He says your Honour that the Commission did in fact consider the issue of whether Mr Layton was within the classification of a level 5 person within the award. Your Honour I think it’s clear from a reading of the decision that he’d already decided the outcome of the matter and then accepts certain evidence. He certainly makes no finding that Mr Layton is or is not within level 5 and we say that that is incorrect, it is necessary and it will be necessary to determine whether Mr Layton falls within that category. He says at paragraph 26 of his decision:

PN237

The applicant’s evidence is that he met the classification characteristics test with the appointment to level 5 of the Clerks Award, even though it is not necessary in order to determine whether the Clerks Award is binding, I accept that evidence of the applicant that –

PN238

Then there are three bullet points relating to the evidence that he accepts. There is in our submission your Honour, no finding as there is required to be. Your Honour in relation the second point that is raised in reply we make this submission that the suggestion that the commercial manager – to try and extract a contradiction between the evidence of Ms Woodam in her witness statement and other cross-examination, I think is incorrect. It’s not a given that to suggest that the commercial manager is the manager responsible for the commercial and accounting function, on site, is necessarily inconsistent with a description:

PN239

That the role and this is a reference to the role performed by Mr Layton, was to manage the accounting function on site with the role of the commercial manager to review only.

PN240

The evidence is quite brief on this matter, but it is not an inconsistency in that evidence it is quite open to the Full Bench to find on the evidence that Mr Layton did in fact manage the accounting function on site and reported to the commercial manager to review. To review what Mr Layton is doing might indeed be to be responsible for the commercial and accounting function on site. In fact there is in my submission your Honour, quite a neat fit between the two.

PN241

The third paragraph I’ve dealt with and in relation to the fourth paragraph it is submitted that the express exemption in clause 1.4.1 of the Clerks Award of certain managers and accountants, leads to the necessary implications that positions at these responsibility and remuneration might otherwise be covered by the Clerks Award. Your Honour that is the point that is made there and illustrates the submission which we make, which your Honour has identified and that is that regard must be had to the award as a whole. Commissioner Bacon didn’t do so we submit that that is, what now needs to happen. Having regard to the award as a whole, the evidence presently before the Full Bench, the Full Bench must now arrive at what it considers to be the right decision.

PN242

COMMISSIONER GAY: Mr Downes when you referred to the requirement to have regard to the award as a whole, is it right to say that you particularly mean clause 1.4 and 1.6 in their totality?

PN243

MR DOWNES: Correct.

PN244

COMMISSIONER GAY: Yes, because it’s true isn’t that even though – that while it’s the case that paragraph 9 the Commissioner does speak of the length and he says that it is somewhat generic, the definition, he doesn’t when he’s dealing with the definition, he doesn’t refer to the refinement or the focus, however one might characterise what happens at paragraph 9 but he does refer to clause 1.6 and having set it out in full of course earlier. He does in paragraph 23 he in relation to his finding he goes one might think back to the principle, and he speaks of the coverage prescribed by 1.4 and 1.6, 27 he speaks of the language of clause 1.6.

PN245

MR DOWNES: That is correct there are two points I would factor. The first is that I think it is quite proper to interpret from that that the clause that he is referring to is what he considers to be the relevant words in the clause. So that when he says that having regard to the language in clause 1.6 or it is obvious that that accountability falls within the definition of clause 1.6, Commissioner Bacon having said what he considers to be relevant within the clause, one can only but assume that he is referring to that which he considers to be relevant and not to that which he does not consider to be relevant.

PN246

COMMISSIONER GAY: So you’d read down – look I follow that submission Mr Downes, but at 27 you’d read down when he’s speaking there he says:

PN247

Whilst I agree with the observation of the respondent that the generic nature of the level 5 characteristics which in my view is equally applicable to the language of clause 1.6 –

PN248

One is wrong to think that he is taking a broad view even though he is using those terms, you think he’s still taking a confined, impermissible view?

PN249

MR DOWNES: That is correct. My submission is that when he is referring to the award, wherever he is referring to the award, he is referring to the award as he has said what is relevant of – out of the award, he is not referring to the award in its totality. We know for example Commissioner, he didn’t even have the full award before him. He certainly had what would have been the most significant extracts of the award, no question about that.

PN250

COMMISSIONER GAY: Was there something else that he – is this right, is there something else in relation to these issues other than clause 1.4 and 1.6 that you say he should have had?

PN251

MR DOWNES: Well for example Commissioner, he didn’t have the opening sentence to clause 5. The submission I wish to make is that if regard is had to the award in its entirety one might say that you would have regard to levels 1, 2, 3 and 4 and you see this is where the award starts, that’s where it ends. That gives you some idea and again it’s that overall non-specifically quantitative assessment that is required to be had. What is the objective of this award? Who is it intended to cover? It’s intended to cover employees between this level and that. Now I don’t think it’s in contest that if Mr Layton is indeed covered here, at the very top end of that.

PN252

COMMISSIONER GAY: Yes.

PN253

MR DOWNES: That is just one of a suite of factors that need to be taken into account, is he just in or just out? There isn’t in my submission one sort of bullet, or one particular determining factor, that is why one takes an overall assessment and that is why the authorities are so clear that one has regard to the document in it’s entirety.

PN254

VICE PRESIDENT WATSON: Isn’t it possible that an employee might be covered by the scope of the award but not covered by any of the classifications? So therefore not entitled to a wage rate in accordance with any of the classifications in the wage rate clause but otherwise entitled to other benefits and therefore, isn’t a direct – if that proposition is right isn’t it correct to say, other than perhaps as a general guide as to the intended meaning of the provisions in the scope clause, it’s not strictly relevant to find whether a person falls within the classifications as such. It’s only in that very general nature to assist in interpreting the meaning of the scope clause that’s really the task involved?

PN255

MR DOWNES: Your Honour I’m unable to point to anything in the Act or in the authorities, sorry in the Act which would suggest that it must if you are covered by the award you must also must be covered by the classification structures. There are authorities and I refer to them in my written submissions, which suggest that you need in order to establish jurisdiction you need to show coverage and that you fit within a classification and I’ll take your Honour to that in a minute.

PN256

But there is a third point that I wish to make, and that is that the award itself says, and this was, that’s that opening sentence to paragraph 5 which Commissioner Bacon would not have had in front of him and that is on my copy of the award the pages are not unsurprisingly numbered, but paragraph 5.2 says classification levels as a heading and then the opening sentence which precedes each of the five levels, has the following it says:

PN257

All adult employees shall be classified in one of the following levels.

PN258

Your Honour if I might answer it in this way and as a general proposition I think it is possible that you can be covered by the scope clause but not necessarily fit into a classification scale. I think in the case of this award, the award itself says that you must fit into one of the classification scales.

PN259

VICE PRESIDENT WATSON: Does it mean that or is it a separate obligation on the employer to classify someone who if they fall within the scope of the award, then to classify them as within one classification or the other so there is a basis for their entitlements to wages? There are scope clauses of awards that say employees of a certain nature falling within the classifications of clause x, so that clearly ties the classifications the definitions and the limits to those classifications to the scope of the award. This award doesn’t appear to be one such award, that adopts that technique and you draw attention to the opening words, but it might have a different purpose and a type of time together that one might find in the scope clause.

PN260

MR DOWNES: I take your Honour’s point. Yes and the point then follows that is if that is the case to the extent that the employer might not have classified him is not a tight coverage. If the coverage clause doesn’t tie it back to the classifications.

PN261

VICE PRESIDENT WATSON: Mr Downes, sorry to interrupt again, you referred to paragraph 4 of the respondent’s submissions in reply where they refer to clause 1.4.1 and as I understand it that is referred to in response to paragraph 10.2 of your submissions which are to the effect of looking at the primary purpose of function of the role and in answer to that there was recourse by the respondent to this appeal to paragraph 1.4.1. I’m not aware of any reliance in the appeal that you have in relation to the significance of paragraph 1.4.1 but what is your position? What is the significance of it do you say?

PN262

MR DOWNES: Your Honour I take my learned friend’s point that it’s indicative of the fact that there may be relatively senior people excluded, therefore, they can be included and that point is open to debate, the reliance I place on 1.4 is no more than this. That is to say it is one of those factors within the award that should be taken into account in determining coverage. It relates to coverage, it’s specifically deals with exemptions. I don’t think it’s indicative, I don’t think and it is my submission that it’s not decisive in any way shape or form of the question in Mr Layton’s case.

PN263

VICE PRESIDENT WATSON: So you say that he is not included within the earlier parts of the award, because he is not engaged in – not covered by the definition of a clerk but you don’t say that he’s excluded as a result of paragraph 1.4.1 in any event?

PN264

MR DOWNES: No, no we’ve been through the list and there is no proper submission that we can make that he would accurately be captured by any of those exemptions. Sorry your Honour may I just have a minute. Your Honour I might just refer your Honour to section 642 of the Act of the Workplace Relations Act and this deals with the reference to the jurisdictional question of whether an applicant is award covered and is the second limb by which one can gain access to the jurisdiction of this Commission. It says your Honour:

PN265

For the purpose of this division, employees taken to be employed under award derived conditions if the employer is bound in relation to the employees wages and conditions of employment by an award or workplace agreement.

PN266

So in relation to an employees wages and conditions of employment I think your Honour’s point is still good though. Your Honour I might like to consider that point and if I may provide a submission to the Commission in writing if that – I think your Honour’s point is still good my first impression is that your Honour’s point is still good I don’t think that that rescues my point.

PN267

VICE PRESIDENT WATSON: I think there are some authorities on the meaning of that phrase.

PN268

MR DOWNES: There are your Honour, might I have leave of the Commission to consider that and file something by the end of the week either to abandon that point or to provide the Full Bench with an answer to your Honour’s question.

PN269

VICE PRESIDENT WATSON: Perhaps we’ll simply flag that at this stage and return to that before we finish today to the extent that any further submissions may be necessary.

PN270

MR DOWNES: Thank you your Honour. Your Honour those are adopting what is in my written submissions unless there are any further questions those are the submissions that the appellant in this appeal wishes to put.

PN271

VICE PRESIDENT WATSON: Thank you Mr Downes, Mr Copeland?

PN272

MR COPELAND: Thank you your Honour. Do you have – can we mark the exhibits the respondents submissions and submissions in reply?

PN273

VICE PRESIDENT WATSON: Yes.

EXHIBIT #C2 RESPONDENTS SUBMISSIONS AS TO 23 PARAGRAPH FOUR PAGE DOCUMENT
EXHIBIT #C3 RESPONDENTS SUBMISSIONS IN REPLY

PN274

MR COPELAND: Thank you, your Honour could I just take you to pages 23 and 24 of the appeal book? Just in relation to the point about the exemptions in clauses 1.4.1 of the appeal just to demonstrate that they were in evidence before the Commission.

PN275

VICE PRESIDENT WATSON: Is that transcript?

PN276

MR COPELAND: Yes, transcript paragraph 160 to 164 and 167 to 169. Just while we are on that then the comment – sorry on the point that the Commission was in error in not determining or only determining that the applicant was within the definition of the award and then not determining whether he was covered by any of the classification levels of the award, the argument that paragraph 26 of the decision by accepting the evidence of the applicant that the applicant did fit the characteristics for appointment to level 5, is not a finding of the Commission.

PN277

In my submission it is not accurate, by accepting that evidence it is tantamount to finding that the evidence is good and therefore having found that the applicant was within the definition of a clerk, and also within the characteristics, also within the characteristics to level 5 of the award, the Commission has fulfilled it’s duty, notwithstanding that it may have it didn’t say in it’s decision that it wasn’t necessary to make that second finding. So if that is in error in my submission there is nothing to be gained by remitting it back to make the same finding again. The applicant met the characteristics for appointment to level 5.

PN278

In relation the complaint that the Commissioner didn’t consider the definition of clerk in the context of the whole award, I agree that the authorities are to consider awards in their entirety, but I would submit that a definition section has a different character than the rest of the body of the award. It’s the tail wagging the – it’s the dog wagging the tail, rather than the rest of the award implementing how the definition should be interpreted. The definition system, section in my submission is in a special category in that it can be interpreted in itself rather than looking to what those same words in the award mean in the definition. So I submit that there was no error of approach in not considering the entire award when determining the meaning of the words in the definition. Other than relying on my written submissions that’s all I have.

PN279

VICE PRESIDENT WATSON: Thank you Mr Copeland, anything in reply Mr Downes?

PN280

MR DOWNES: Nothing in reply your Honour.

PN281

VICE PRESIDENT WATSON: You wish to supplement the submissions by written submissions on the narrow point you’ve identified?

PN282

MR DOWNES: If I might have your indulgence your Honour I would like to discuss it before closing off on that point. I think yes, thank you your Honour.

PN283

VICE PRESIDENT WATSON: Yes and you seek to the end of the week?

PN284

MR DOWNES: Your Honour is it possible to have an indulgence until close of business on Monday I - - -

PN285

VICE PRESIDENT WATSON: It sounds like you’ve got a busy week
Mr Downes?

PN286

MR DOWNES: I have a small matter of a conference in Sydney Friday, Thursday, Friday, Saturday your Honour, that’s why otherwise and it’s a full program I don’t want to make a commitment that I’m not confident I can meet, so if it’s not too much of an indulgence, close of business on Monday would be appreciated, your Honour.

PN287

VICE PRESIDENT WATSON: What’s your attitude to this Mr Copeland, you would be given an opportunity to respond to written to material?

PN288

COMMISSIONER GAY: It’s an extension of time, it’s called.

PN289

MR COPELAND: Well my conduct is exemplary so I can’t refuse that, I have nothing against that.

PN290

VICE PRESIDENT WATSON: Yes, thank you. Well Mr Downes you have liberty to file further written submission by close of business Monday and what’s a reasonable time Mr Copeland for you to file any written response to those submissions?

PN291

MR COPELAND: Close of business Wednesday may it please your Honour.

PN292

VICE PRESIDENT WATSON: Yes, that’s acceptable.

PN293

MR DOWNES: Thank you your Honour and I’m indebted to my learned friend for his attitude.

PN294

VICE PRESIDENT WATSON: Thank you, well we will reserve our decision and thank counsel for their submissions in this matter and the Commission will now adjourn.

<ADJOURNED ACCORDINGLY [12.13PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #C1 SUBMISSIONS OF APPELLANT PN8
EXHIBIT #D1 SUBMISSIONS OF RESPONDENT DATED 07/08/2007 PN23
EXHIBIT #32 SUBMISSIONS ON CROSS APPEAL OF RESPONDENT DATED 27/07/2007 PN147
EXHIBIT #C2 RESPONDENTS SUBMISSIONS AS TO 23 PARAGRAPH FOUR PAGE DOCUMENT PN273
EXHIBIT #C3 RESPONDENTS SUBMISSIONS IN REPLY PN273