C2007/2230, Transcript of Proceedings [2007] AIRCTrans 64 (20 February 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 16477-1

COMMISSIONER CRIBB

C2007/2230

CPSU, THE COMMUNITY AND PUBLIC SECTOR UNION
AND
STATE LIBRARY OF VICTORIA
s.170LW -prereform Act - Appl’n for settlement of dispute (certified agreement)
(C2007/2230)

MELBOURNE

1.31PM, WEDNESDAY, 07 FEBRUARY 2007

Hearing continuing

PN1

MR C COOK: I seek leave to appear on behalf of the State Library of Victoria in this matter and with me today are MS S KELLMAN, MR J JOHNSON and
MS S TAYLOR.

PN2

MR G BECKMAN: I appear for the CPSU, with me MS S SINDICI.

PN3

THE COMMISSIONER: Thank you. Mr Beckman, is there any objection to the appearance of Mr Cook this afternoon?

PN4

MR BECKMAN: No, Commissioner.

PN5

THE COMMISSIONER: Thank you, Mr Beckham. Mr Cook, leave is granted.

PN6

MR COOK: Thank you, Commissioner.

PN7

THE COMMISSIONER: Mr Cook?

PN8

MR COOK: I also thank my friend for consenting to the library filing some further submissions earlier today in relation to the effect of clause 8. We weren't aware of this submission after reading the application initially and I thank my friend for agreeing to that course. Now, firstly, Commissioner, I don't propose to give lengthy submissions today given that the relevant issues have been traversed in some detail in our written submissions. But simply, the Commission's task in the present matter is a relatively simple one and I firstly characterise the dispute and then determine whether that dispute is over the application of the agreement.

PN9

Now, in our submission there can be no doubt that the dispute properly characterised is about the State Library's decision to terminate Ms Sindici's employment because of her inability to perform the inherent requirements of her position. This is reflected in the CPSUs notice as outlined in our outline of submissions and also in the CPSUs submission, particularly at paragraphs 8 to 12 and 28 to 33 of those submissions, and also paragraph 38 of those submissions.

PN10

Now, secondly, it is a dispute over the application of the agreement. Again, this is a dispute over the library's decision to terminate Ms Sindici's employment and whether she can fulfil the inherent requirements of her position. This is referred to again in paragraphs 8 to 12 of the CPSUs submissions and at paragraphs 28 to 33 of the CPSUs submissions the issue of whether the decision of the State Library is in fact discriminatory is put up in lights in terms of this being a dispute about that issue as well.

PN11

This is not a dispute over the application of the agreement as there is no nexus between the dispute and the terms of the agreement. Now, the CPSU argue that there is a nexus with clauses 7, 8 and 28 of the agreement. Now, I propose to go through each of those provisions now. Firstly, clause 7 requires that every endeavour be made to ensure that other provisions of the agreement are not given effect in a discriminatory manner. That is, provisions other than clause 8. Now, this is an interactive provision and not a stand alone provision. It aims to ensure that other clauses not implemented in a discriminatory manner.

PN12

For example, ensuring that rostering provisions, which are dealt with under clause 20.2 of the agreement, are not used to discriminate against employees with, say, family responsibilities. Now, the CPSU argues that clause 28 has been implemented in a discriminatory manner thereby attracting clause 7. Now, in our submission it hasn't. There can be no dispute that clause 28 has been implemented in full and fairly by the State Library, as clause 28 only describes notice of termination.

PN13

THE COMMISSIONER: Mr Cook, can I stop you there?

PN14

MR COOK: Sure.

PN15

THE COMMISSIONER: I just want to go back a bit to something that you said a few seconds ago and all I have to hand is the same documentation that you have in terms of the CPSUs contentions in this matter, but I think you characterised part of the union's position as that clause 28 is being implemented in a discriminatory fashion and you've said that essentially 7 is a static clause in the sense that it is the vehicle whereby, you know, a prism through which the rest of the agreement is implemented in terms of ensuring non discrimination. But you said that I - I think you said that your understanding is that the CPSU is saying that clause 28 is being - the nexus between 7 and 28 means that clause 28 is being applied or implemented in a discriminatory manner. Is that correct?

PN16

MR COOK: Yes, that's the first limb, as I understand it, of their argument.

PN17

THE COMMISSIONER: Yes.

PN18

MR COOK: The second limb of their argument, as I understand it and obviously my friend can correct me if I haven't understood it correctly, is that the final parts of clause 7, the three bullet points, are stand alone provisions. Now, I address that in - I will address that in a minute, but I just want - - -

PN19

THE COMMISSIONER: Yes, I hadn't got to that. What I want to just talk to you about is, I didn't read the CPSUs submissions regarding the first limb as you have. I didn't understand that they were actually contending that clause 28 was being mal-applied, if I can put it that way, when one looks through the prism of clause 7, but Mr Beckman might tell me that I've got it all wrong. If so, I withdraw the question unreservedly.

PN20

MR BECKMAN: Will you hear from me, Commissioner?

PN21

MR COOK: If I can just address - - -

PN22

THE COMMISSIONER: Hang on a second. Sorry?

PN23

MR COOK: If I could just address that question. Our initial outline of submissions was came out of nowhere in that it was based solely on the notice of the dispute, so we obviously had received the CPSUs submissions at that point and I gleaned that, firstly, as I've characterised it, from the notice itself and if I take the Commissioner to, after the contact details are given, midway through the page, Jim Johnson, the Human Resources Manager of the State Library, the third paragraph, the second sentence says:

PN24

We allege that Ms Sindici's proposed termination pursuant to clause 28 of the agreement is based on her mental disability and consequently is a breach of clause 8 of the agreement -

PN25

and that's where we got our understanding of that argument between the interaction between clauses 7 and 28 and obviously I'll allow my friend to address you on that point.

PN26

THE COMMISSIONER: Thank you, Mr Cook. Mr Beckman?

PN27

MR BECKMAN: Yes, Commissioner, firstly I'd like to apologise for not having a tie on. I simply forgot it. It means no disrespect.

PN28

THE COMMISSIONER: No disrespect is taken, Mr Beckman, thank you.

PN29

MR BECKMAN: I wrote in my notes exactly as you said, that is not the correct description of our argument. Our argument is that the actual dispute has three sections. The first being clauses 7 and 8 which import a legal obligation on the library. The first clause is a general one, but limited by the list of discriminatory attributes. The second clause is the one that the respondent is referring to. That is a clause which goes to - and I'll have to read it out.

PN30

THE COMMISSIONER: Is this clause 8, Mr Beckman?

PN31

MR BECKMAN: No, clause 7, State Library. So the first paragraph of clause 7 we say is a general obligation not to discriminate on the basis of the attributes listed. We say that the second paragraph is an obligation and the respondent has said that they admit that the words have sufficient strength to employ an obligation, but the obligation is their operation of the agreement:

PN32

The agreement's provisions nor operation are directly and indirectly discriminatory in their effects.

PN33

There are two parts to that. There's the agreement provisions themselves and then there's the operation of the agreement's provisions. The effect is, to give an example, if the response of the SLV was to transfer Ms Sindici to a lower position, then we would still be here arguing about the transfer to a lower position based on discrimination. It could be about sick leave, any other issue. It is the effect that is discriminatory. The actual dispute regards the discrimination itself as the nexus between the discrimination and the clauses 7 and 8.

PN34

The dispute, the proposed termination is an effect, it's an effect of the discrimination. So it is incorrect to characterise or describe our position as the nexus between clauses 7, 8 and 28. The nexus is between 7 and 8. 28 is simply the effect of the discrimination. Is that clear?

PN35

THE COMMISSIONER: Yes. But isn't clause 28 the notice provisions?

PN36

MR BECKMAN: Yes. Clause 28 simply says, "Discrimination shall be" -
sorry -

PN37

Termination shall be notice provisions.

PN38

That's all it says and we have no argument that the library is complying with that provision.

PN39

THE COMMISSIONER: That's what I thought.

PN40

MR BECKMAN: But the effect of it is to discriminate.

PN41

THE COMMISSIONER: The effect of the notice?

PN42

MR BECKMAN: The effect of the termination and of the notice.

PN43

THE COMMISSIONER: Because the clause is simply about the notice of termination, if I recall.

PN44

MR BECKMAN: Yes, it is. The wording of the clause in the agreement clause 7:

PN45

Accordingly we'll make every endeavour to ensure that neither the agreement provisions nor their operation are directly or indirectly discriminatory.

PN46

THE COMMISSIONER: Okay, so your argument is that the method in which the State Library has implemented the notice provisions is discriminatory? Because that's all the clause goes to.

PN47

MR BECKMAN: It actually says, "in their effects", on saying that the effect of the termination pursuant to that clause - - -

PN48

THE COMMISSIONER: But it's not termination pursuant to clause 28. The notice provisions that are paid, if there is a termination, are in accordance with clause 28. There's actually, on my reading of the agreement, there's no termination of employment which talks about, you know, the employer having a right to terminate somebody. There is not such a clause in the agreement.

PN49

MR BECKMAN: Yes. The same, and that's my reasoning as well, I'm saying that the reading of that paragraph of clause 7, the agreement provisions, nor their operation, the provisions themselves, so they can't have discriminatory, can't be discriminatory in what they say, or their operation - the intent of that paragraph there is to say that the agreement shall not be discriminatory, shall not be used in a discriminatory - in a way that has a discriminatory effect.

PN50

THE COMMISSIONER: From reading all the material I thought that the union's primary argument was that the State Library is being - you've having an argument about whether the termination of Ms Sindici offends the anti discrimination clause in clause 7 or whether it doesn't. Is that - I mean, that's what I distilled from the essence of your submissions, but I'm not 100 per cent clear.

PN51

MR BECKMAN: Right. What we say is that there are now three specific obligations on the library contained in clauses 7 and 8. We are here referring to the second one, which is in the second paragraph, which is a specific provision to do with the operation and - with the provisions nor the operations of the agreement. The other clauses are a general, you shall not discriminate - sorry. The other paragraphs are a general application or a general obligation not to discriminate. This is a specific paragraph and I only make the distinction, we only put the argument because of the submission by the respondent and say, well, look, paragraph 1, it's not worded strongly enough to invoke legal obligation and they're saying - and they have concerns about the code of conduct argument as well. So we have three legs and we're arguing that there is three separate obligations not to discriminate and what has been addressed by the respondent is the argument that relates to the second paragraph of clause 7.

PN52

THE COMMISSIONER: Thank you. I appreciate that. Is that of assistance, Mr Cook, to both of us?

PN53

MR COOK: Just in relation to that argument, I might just address that for one minute. My friend refers to there being a general obligation conferred in clause 7. Now, there is some general statements, some aspirational statements, to use the words of the Full Bench in the ATO case, in the first paragraph of clause 7 of the agreement. However, the only binding commitment in clause 7 is in the second paragraph which reads:

PN54

Accordingly we will make every endeavour to ensure that neither the agreement provisions nor their operation are directly or indirectly discriminatory in their effect.

PN55

So the only part of that clause which is relevant for present purposes is every endeavour to ensure that the agreement - well, sorry, the operation of the clauses of the agreement are not directly or indirectly discriminatory in their effects.

PN56

So that's the point I was making in relation to the fact that there has to be some sort of interaction between clause 7 and another part of the agreement to attract the Commission's jurisdiction under this clause so that the respondent's obligations are actually triggered under another clause.

PN57

THE COMMISSIONER: Hence you are characterising clause 7 as interactive earlier?

PN58

MR COOK: Yes. It has to feed off another clause. The obligation necessarily has to feed off another clause.

PN59

THE COMMISSIONER: With respect to the first paragraph of clause 7, what is your view about the binding nature of that on the State Library?

PN60

MR COOK: That clause refers simply to aims and aim to achieve the principle object and then refers to the relevant statutory provisions and we've given submissions on the nature of that clause and the issue has been addressed by the Full Bench in the ASU and ATO decision and that first paragraph of clause 7 doesn't enshrine any sort of commitment or obligation on either the State Library or the union. It's important, obviously, but it doesn't attract the Commission's jurisdiction in the sense of it providing a commitment or an obligation on the library itself.

PN61

THE COMMISSIONER: Thank you, Mr Cook. I do apologise. I've interrupted your train of thought hugely.

PN62

MR COOK: That's fine. Now, I was just talking about the interaction between clauses 7 and 28 and there being no dispute between the parties as to whether clause 28 has been implemented in full and my friend has just conceded that on his feet about five minutes ago as well. Now, the CPSUs argument might have some foundations if the library decided to give Ms Sindici, say, a week's notice because of her injury. Then there could be a dispute over the application of clause 7 and its interaction with clause 28, but as the Commission quite rightly pointed out, clause 28 only refers to the provision of notice and once that obligation has been extinguished, there's no dispute as to whether clause 28 has been applied fairly, unfairly, discriminatory or otherwise.

PN63

Now, in its submissions the CPSU argues that the bullet points at the end of clause 7 attract the Commission's jurisdiction. Now, this is the second limb of what I understand to be the CPSUs argument in their outline of submissions and the submission is basically that clause 7 has some sort of stand alone effect, aside from that interactive provision outlined in the second paragraph of clause 7. Now, this is not the case as the bullet points don't provide any obligations or commitments of the type envisaged in cases such as the ASU v ATO Full Bench decision. These bullet points simply point out the obvious, that is, the provisions of anti discrimination legislation and the Workplace Relations Act continue to apply alongside clause 7.

PN64

In any event there's no connection between the dispute and the last three bullet points. This is because none of these bullet points have been applied by the library. These points don't provide the library with a right to terminate because of inherent requirements. They merely refer to the relevant statutory provisions and say they apply as statutory provisions. Now, this would be different if, say, the agreement said that the library must take certain steps and make certain assessments before terminating on the basis of inherent requirements, but it doesn't. It just refers to the provisions, indeed, this dispute should be handled under these provisions as not a dispute under the agreement.

PN65

Now, I'll get back to this issue and the relevance of there being some sort of prescriptive obligation when I address the CPSUs arguments in relation to the RMIT case. So I'll cross-reference that at a later stage. Now, this is similar to the facts in the case of AMWU v Toyota. Now, I'll just hand up a copy of the case to my friend and to the Commission.

PN66

THE COMMISSIONER: Thank you.

PN67

MR COOK: Now, this is a decision of Commissioner Gay on 16 November 2006, print PR974676. Now, I'll just take the Commission through the relevant part of this decision. The agreement, the Toyota agreement, the WPA referred to the Equal Opportunity Act. Now, if I take the Commission to the relevant part of the decision which is paragraph 24 of Commissioner Gay's decision, and the Commissioner gives an extract of the agreement which is clause 85 of the agreement and in sub clause (2) of that clause there is a reference to the Equal Opportunity Act of Victoria and in finding the dispute was not over its clause of the agreement, the Commissioner, at paragraph 59 of the decision, it's the second bullet point, the end of the second bullet point of paragraph 59 of that decision, stated that:

PN68

The meaning of sub clause (2)(a) is not to create an obligation on Toyota to not harass or discriminate on the basis of the grounds given, including impairment, but to bring to notice the fact that Toyota has a no tolerance policy as to employee acts on those grounds, which policy is in conformity with the Victorian Equal Opportunity Act 1995.

PN69

Now, if I can address the Commission in relation to the CPSUs arguments on clause 8 of the agreement. The CPSU says that clause 8 also attracts the Commission's jurisdiction. Now, we've dealt with this issue in some detail in our further submissions filed early this morning, but put simply, clause 8 has nothing to do with this dispute. It simply says that employees are expected to behave in accordance with the Code of Conduct, and there's no dispute as to whether Ms Sindici has complied with the Code or hasn't complied with the Code, and in any event, the Code does not confer any rights or obligations which have been breached and I refer in particular to paragraphs 10 and 11 of our submissions filed earlier today in relation to that issue.

PN70

Now, clause 28, aside from its interaction with clause 7, which I've referred to before and we discussed before, there's obviously no dispute over the application of clause 28. It's been complied with in full and that's been conceded by the CPSU both today and on previous occasions. Look, this would be different if the clause spelled out a termination procedure for employees who can't perform the inherent requirements of their position and there was an argument that this procedure had not been complied with, and that was the case in the RMIT case to which my friend referred to in his written submissions.

PN71

This isn't the case in the present matter. Clause 28 only prescribes notice periods as pointed out by the Commissioner and the Library has complied with this clause and the issue is not in dispute. In fact, as I understand it, the Library has gone beyond it's obligations in clause 28, has complied with the obligations of clause 28.

PN72

Now, I just wanted to briefly address finally three specific issues raised by my friend in his outline of submissions filed yesterday afternoon. Now, at paragraph 23 of those submissions, in relation to the submission that was given at paragraph 3, the respondent maintains that this is still the inappropriate forum for this dispute because it's not over the application of the agreement. If it was a dispute over the application of the agreement the union could properly pursue this course, even if it did have other avenues available to it, but the central issue in this case is that it's not an dispute over the application of the agreement and therefore the Commission's jurisdiction isn't attractive.

PN73

This is basically the point that the Full Bench is making in the extract at paragraph 23 of the CPSUs submissions. Now, if I take the Commission to paragraph 37 of the CPSUs submissions, it states that the parties agreed that the dispute would be settled by arbitration, but the jurisdictional issues would first be settled. The SLV gave a commitment that Ms Sindici's employment would not be terminated before the completion of the arbitration proceedings. Now, my instructions are that this is not correct. The State Library agreed to put the process on hold during conciliation proceedings and, indeed, during the course of this jurisdictional proceeding, but that the termination would take effect on 9 February 2007.

PN74

Now, finally, Commissioner, just in relation to the applicant's submissions in relation to the Austin v RMIT case. Now, this decision, in my submission, highlights why the CPSUs current application is fatally flawed. The Commissioner found that he had jurisdiction because the relevant agreement provided a range of conditions precedent to termination and there was a dispute as to whether those conditions had in fact been complied with by RMIT.

PN75

Now, I refer in particular to paragraphs 48 to 57 of that decision which outlines the conditions precedent to termination and in that case it was termination during the course of the employee's probationary period and in paragraphs 48 to 57 of the decision the Commissioner outlines what those conditions and precedent were and their importance in relation to attracting the Commission's jurisdiction and you can really see the difference between the provisions of the State Library agreement in the present matter and the RMIT agreement, the subject of the Commissioner's decision.

PN76

Now, at paragraph 61 of the decision, the Commission makes it clear that in some circumstances employer discretion to terminate may not be characterised as a dispute over the application of the agreement. But in the case of the RMIT agreement that discretion was fettered by various procedural and other conditions. There's no such fettering of the Library's discretion in this matter or in the State Library agreement. Therefore the dispute cannot be said to be over the application of the State Library.

PN77

THE COMMISSIONER: Thank you, Mr Cook. Mr Cook, sorry, just before you finish, may I mark both your outline of submissions?

PN78

MR COOK: Sure.

PN79

THE COMMISSIONER: Would there be any objection, Mr Beckman, if I
mark - and I would be seeking to do the same with your material as well.

PN80

MR BECKMAN: Excuse me, Commissioner, I was under the impression that our agreement with the Library was that all the cases that would be relied upon would be given prior or at least indicated prior to the hearing. I didn't see this in the submissions. It's just I haven't had a chance to study it.

PN81

THE COMMISSIONER: All right. This is the Toyota one?

PN82

MR BECKMAN: The Toyota Corporation, I haven't had a chance to study that. That was the - - -

PN83

MR COOK: And I apologise to my friend for that. It was a case that arose out of the submissions filed by my friend yesterday afternoon and only took on relevance in my submission after I received those submissions. Now, I would be agreeable to a short adjournment of 10, 15 minutes, subject to what my friend says, to allow my friend to read the relevant parts of that decision.

PN84

THE COMMISSIONER: Thank you, Mr Cook. Mr Beckman, would that be of assistance?

PN85

MR BECKMAN: Yes. The relevant clauses are 24 and - - -

PN86

MR COOK: The relevant parts of that decision are paragraph - yes, paragraph 24 of the decision, in that paragraph the extracts of the relevant clause of the agreement is inserted, and secondly, the second bullet point of paragraph 59 of the decision and more particularly the last half of that bullet point.

PN87

MR BECKMAN: 24 and 59?

PN88

THE COMMISSIONER: Yes.

PN89

MR BECKMAN: Okay.

PN90

THE COMMISSIONER: Mr Beckman, would you like to have an adjournment in order to - - -

PN91

MR BECKMAN: Yes, a short adjournment just to have a look at those.

PN92

THE COMMISSIONER: Certainly. How long did you think you would need?

PN93

MR BECKMAN: Just five or so minutes would be all right.

PN94

THE COMMISSIONER: Would you like 10 minutes, Mr Beckman?

PN95

MR BECKMAN: 10 minutes.

PN96

THE COMMISSIONER: Fine. Just before we adjourn for 10 minutes, do you have any objection, Mr Beckman, to the Commission marking both of the written submissions filed on behalf of the State Library?

PN97

MR BECKMAN: No, Commissioner.

PN98

THE COMMISSIONER: Thank you.

EXHIBIT #A1 OUTLINE OF SUBMISSIONS REGARDING JURISDICTION DATED 1/02/2007
EXHIBIT #A2 SUBSEQUENT SUBMISSIONS REGARDING POINT 8 RECEIVED 7/02/2007

PN99

THE COMMISSIONER: We shall adjourn for 10 minutes, thank you.

<SHORT ADJOURNMENT [2.08PM]
<RESUMED [2.19PM]

PN100

THE COMMISSIONER: Mr Beckman?

PN101

MR BECKMAN: Thank you for that break, Commissioner. I'll start my submissions - I intend to go through the written submission and then at certain points stop and discuss. The respondent in submission, while referring to the inherent requirements in the position states that:

PN102

Rather, this matter is about the lawfulness and/or fairness of SLVs decision to terminate Ms Sindici's employment based on her ability to perform inherent requirements of the position, an issue which is not addressed in clause 28 or elsewhere in the agreement. This is factually wrong. It's of a primary premise underwriting her argument.

PN103

It then goes on:

PN104

The anti discrimination -

PN105

clause 7, anti discrimination of the agreement states:

PN106

We aim to achieve the principle object of (3)(j) of the Workplace Relations Act 1996 through respecting the value and the diversity of the workforce by helping to prevent and eliminate discrimination and on the various grounds.

PN107

The key word there is "by helping to prevent and eliminate". Helping is actually to do something. Helping is an adjective that purports an obligation to do something.

PN108

It then goes on and lists the various attributes and then in paragraph 2, which we say is a separate obligation:

PN109

Accordingly we'll make every endeavour to ensure that neither the agreement provisions or their operation are directly or indirectly discriminatory in their effects....(reads)... including application to Human Rights and Equal Opportunity Commission.

PN110

And (3), the exemption in section 170CK(3) and (4) of the Workplace Relations Act. The third dot point in clause 7 of the agreement preserves the rights of SLV to discriminate based on section 170CK(3) of the Workplace Relations Act, which I've got here, and it says, 170CK(3):

PN111

Inherent requirements of position -

PN112

subsection (2):

PN113

Does not prevent a matter referred to in paragraph (2)(f) which lists the attributes of the agreement from being a reason to terminate employment if the reason is based on the inherent requirements of the particular position concerned.

PN114

So the respondent, in their outline of submissions, states that the inherent requirements of the position are not mentioned anywhere in the agreement. In fact, they are a fair - the phrase is fair square in the clause 7. The third dot point in clause 7 of the agreement preserves the rights of the SLV to discriminate both on section 3 of the Workplace Relations Act 1996, section 170CK of the Act effectively exempts the employer from liability under clause 7 if there is a breach of the clause or, to put it another way, if the discrimination question is due to inherent requirements of the position concerned.

PN115

The first dot point of clause 7 of the agreement preserves the rights of SLV to discriminate, if the discrimination is specifically exempted under Commonwealth or State anti discrimination legislation. Section 15(4) of the Federal Discrimination Act 1992, the DDA, states:

PN116

Neither paragraph (1)(b) nor(2)(c) of section 15 renders unlawful discrimination by an employer against an employee on the grounds of a person's disability ...(reads)... the person because of his or her disability.

PN117

(a)

PN118

Would be unable to carry out the inherent requirements of particular employment.

PN119

(b)

PN120

In order to carry out those requirements require services or facilities that are not required by persons without the disability and the provision of which would impose an unjustifiable hardship on the employer.

PN121

Clearly the first dot point in comparison, matters that relate to the inherent requirements of employment, a discussion of this meaning is of the phrases that's contained in X v The Commonwealth, 1999, and point 7:

PN122

The respondent is free to argue that the dispute is about the inherent requirements of the position, but this is inconsistent with the fact that this is a defence open to the SLV under the first and third dot points of clause 7.

PN123

So what it comes down to at this point is to define what are the inherent requirements of the position and that definition is gone to in the High Court, X v The Commonwealth. If I might take the Commission - - -

PN124

THE COMMISSIONER: Just before you do, Mr Beckman, sorry, can I just go back over what you've just submitted. Do I understand you to be saying that in the first paragraph of clause - okay, that firstly the termination that is proposed of Ms Sindici for her inability to perform the inherent requirements of the job offend clause 7 of the agreement, which means that therefore it can be a dispute over the application of the agreement, specifically within clause 7 what attracts the Commission's jurisdiction is in the first paragraph, I think you're saying that the parties in saying that they aim to achieve the principle object in section (3)(j) of the Act, the active word is:

PN125

after that by helping to prevent and eliminate discrimination - - -

PN126

MR BECKMAN: Yes.

PN127

THE COMMISSIONER: And because they're active doing words, that that gives a jurisdictional foothold?

PN128

MR BECKMAN: Yes.

PN129

THE COMMISSIONER: And then secondly in terms of the first and the third dot point, that the State Library has submitted that there is - the agreement does not contain any reference to termination due to an inability to perform the inherent requirements of the job, but if you look at the first dot point and the third dot point, you're saying that - and we do the last one first - 170CK(3) of the Act specifically refers to inherent requirements of the particular job?

PN130

MR BECKMAN: The position.

PN131

THE COMMISSIONER: The position, and then the first dot point imports the Commonwealth Disability Discrimination legislation which specifically talks about unlawful discrimination where a person, because of their disability, is unable to carry out the inherent requirements of the particular employment.

PN132

MR BECKMAN: Of the employment.

PN133

THE COMMISSIONER: Okay. So you're saying that there are three jurisdictional bedrocks within 7 which would found the Commission's jurisdiction.

PN134

MR BECKMAN: Two within 7 and one within 8.

PN135

THE COMMISSIONER: So it's not the first - are the two in 7 in the second paragraph or are they in the first paragraph or - - -

PN136

MR BECKMAN: The first is in the first paragraph, active by the words "by helping".

PN137

THE COMMISSIONER: Yes.

PN138

MR BECKMAN: So that is the active word it the first paragraph, and the active word in the second paragraph is "make every endeavour to ensure". So that is the second limb upon which we can argue an obligation of the library not to discriminate.

PN139

THE COMMISSIONER: Yes, but the bit that I'm - well, if I've misunderstood you and you're not saying, as I thought you were, what I think you just said to me is that accordingly we will make every endeavour to ensure that those are the active words. There then becomes an issue about where the agreement provisions or their operation are directly or indirectly discriminatory, doesn't it?

PN140

MR BECKMAN: In their effects. Yes, that second paragraph is directed at the agreement itself.

PN141

THE COMMISSIONER: Okay. So where do you put then, or where do you want me to put the first dot point and the third dot point, bullet point?

PN142

MR BECKMAN: Well, they relate to, in the first instance, to the submission of the respondent and the Commission’s response said look, this is really a dispute about the inherent requirements of the job and that that phrase is nowhere in the agreement. I’m saying that that is factually incorrect. That phrase in fact is in the anti-discrimination clause.

PN143

THE DEPUTY PRESIDENT: Okay.

PN144

MR BECKMAN: So that argument, that premise, it was a fundamental premise on which the deductions flowed. It’s just wrong.

PN145

THE COMMISSIONER: Okay. And your argument is that both of those bullet points actually import into the agreement specific reference to inability to perform the inherent requirements of the job?

PN146

MR BECKMAN: Yes. So the third bullet point which refers to the Workplace Relations Act specifically goes to inherent requirements of the position. If the library was to choose in defending against a charge of discrimination then they could rely on the first dot point as well, that that is enough why the defence because that says Commonwealth or State anti-discrimination legislation. And I’ve used just one example which would be relevant to this case, the DDA, and under the DDA they are given a defence which would be unable to carry out the inherent requirements of the particular employment. And I was about to go to the High Court to try and define the meaning of inherent requirements of the position and it actually defines the inherent requirements of the position that the High Court also discusses briefly the meaning of inherent requirements - excuse me. The High Court concentrates on the inherent requirements of the employment, but it also discusses briefly the inherent requirements of the position.

PN147

THE COMMISSIONER: Okay. Before you get to that I understand therefore that what you’re saying is jurisdictionally the Commission has jurisdiction to deal with your application pursuant to 170LW because firstly in terms of the employer’s submission that termination did do inability to perform the inherent requirements of the job. The State Library’s submission on that is that that doesn’t appear anywhere in the agreement and you are saying that under clause 7 the first bullet point, but particularly the third bullet point?

PN148

MR BECKMAN: Particularly the first and also the third.

PN149

THE COMMISSIONER: Okay, particularly the first and particularly the third. And so that, you’re saying, gives the Commission the jurisdictional basis in that termination due to inability to perform the inherent requirements of the job is actually in the agreement - it’s in clause 7 - so therefore this matter is a dispute between the parties over the application of the agreement and that’s based on the inherent requirements.

PN150

MR BECKMAN: No. Actually, Commissioner, what the argument is, is that there are three grounds within clauses - two grounds within clauses 7 and one ground within clause 8.

PN151

THE COMMISSIONER: Yes.

PN152

MR BECKMAN: The issue of the inherent requirements of the job was raised by the respondent and it is, if you mischaracterise the dispute, then you could characterise it as inherent requirements of the position.

PN153

THE COMMISSIONER: Okay.

PN154

MR BECKMAN: That is to mischaracterise the dispute.

PN155

THE COMMISSIONER: Okay. How would you characterise it?

PN156

MR BECKMAN: I characterise the dispute as being about discrimination. The dispute is about Ms Sindici’s inability or incapacity to carry out all the duties that the library is asking now to carry out. So that is the central issue. What attracts clause 7 is that the reason that Ms Sindici can not carry out those duties is because of her disability and if you were to accept the logic of the DDA then it is clearly a case of discrimination.

PN157

THE COMMISSIONER: Okay. You are characterising the dispute between the parties as one about the termination of Ms Sindici?

PN158

MR BECKMAN: No.

PN159

THE COMMISSIONER: No?

PN160

MR BECKMAN: No.

PN161

THE COMMISSIONER: Not about her termination?

PN162

MR BECKMAN: No.

PN163

THE COMMISSIONER: It’s about her incapacity to do all of the duties?

PN164

MR BECKMAN: Yes.

PN165

THE COMMISSIONER: And the reason that she can’t do all of her duties is because of her disability?

PN166

MR BECKMAN: Yes.

PN167

THE COMMISSIONER: And the discrimination is because what?

PN168

MR BECKMAN: It is discrimination to treat an employee detrimentally based on their impairment, their disability. That is discrimination, to treat someone to inflict a detriment on someone because based on their disability is what discrimination is. And this is a dispute about discrimination because the requirement of the library that Ms Sindici carry out all her duties is a requirement that is discrimination obviously. The library has open to it defences under the first and third dot points to the - for example, discrimination can be reasonable. Discrimination on the inherent which would be an inherent requirement of the job might be a model working under the model’s mannequin’s agreement who was too big to fit into the dresses of Coles Myer who they wanted them to wear. That would be an inherent requirement of their job and that would be discrimination, but it would not be unlawful discrimination because it was an inherent requirement of the job.

PN169

The inherent requirement, though, within terms of the dispute is only one extreme example of the defence. The real dispute is about the unreasonableness of the requirement to carry out all the duties. The library could quite well argue that this is an inherent requirement of the job. I can go to the High Court of Australia decision and define the inherent requirements of the job. I think quite clearly it’d show that it is not an inherent requirement of the job by a long shot. But under the second part of the clause, the section I quoted from the Act, it also talks about reasonableness.

PN170

So an inherent requirement of the job, we’ll go over this through the submission, but just briefly the inherent requirement of the job, I believe, is at one end of what is a defence for the employer which the Federal Court in the Catholic Education could say look, if you’re looking at what is reasonable, at one end you’ve got convenient, at the other end you’ve got necessity. And the requirement of the employer needs to be more than just convenience, but it should also on the other hand doesn’t have to be one of absolute necessity. The inherent requirements of the employment or of the position, is ..... of the job, is somewhere right at the very end of requirements.

PN171

It is an underlying necessity for them. So this is what - the first dot point is a defence for the employer. We say that this is clearly discrimination, but there is an argument there, if I can use the - it will be free to them to use any Commonwealth or State legislation, but they’re pretty much the same - but the duties that the employer requires Ms Sindici to carry out, they argue, are an inherent requirement. They could just as argue that it is an unreasonable, that this is an unreasonable discrimination. We say it is not. That is probably the proper characterisation of the dispute. The termination is an affect of that dispute. The underlying nexus between the dispute and the agreement is clauses 7 and 8 and we get back to what those clauses mean.

PN172

But if we just press the page for the sake of the argument that there is a legal obligation there in 7 and 8 then the nexus is between the dispute regarding the reasonableness or unreasonableness, we say, of the requirement that Ms Sindici carry out all the duties, all of her duties. That is the nub of the dispute and we believe there is a clear nexus with the agreement.

PN173

THE COMMISSIONER: And the agreement and that nexus is in clause 7 and clause 8?

PN174

MR BECKMAN: Yes.

PN175

THE COMMISSIONER: And it’s in clause 7 because?

PN176

MR BECKMAN: Of the word in the first paragraph:

PN177

By helping to prevent and eliminate discrimination.

PN178

So it’s the active wording “helping”. and we say in the second paragraph because provisions or their operation - and the respondent will see there’s a number of times in its submission, it’s about the operation of the clause. It’s not the operation of the clause that is the key issue there, it is the effect. The discriminatory detriment.

PN179

THE COMMISSIONER: Fine. It’s the affect of which provision?

PN180

MR BECKMAN: Of provision 28, the one going to termination. And as you’ve rightly pointed out it is a clause just as termination and notice. But that is the clause under which Ms Sindici suffered her detriment. That is a discriminatory effect. That is our argument.

PN181

THE COMMISSIONER: But is it? Is that the clause that provides the basis for the detrimental effect to Ms Sandici which is her termination?

PN182

MR BECKMAN: The termination is just the effect.

PN183

THE COMMISSIONER: The effect?

PN184

MR BECKMAN: It is not the dispute. It’s not the dispute - - -

PN185

THE COMMISSIONER: Yes, I understand that, but the effect has to be somewhere in the agreement, doesn’t it? And you’re saying the effect is termination?

PN186

MR BECKMAN: No. The effect arises from the agreement.

PN187

Accordingly we make every endeavour to ensure that the agreement provisions, or of their operation, do not have discriminatory effect.

PN188

THE COMMISSIONER: Okay. So which provisions as applied to Ms Sandici are in their effect directly or indirectly discriminatory?

PN189

MR BECKMAN: Provision 28 is the effect, the termination clause. That’s the effect. It’s the effect. It is the provision that has the effect of the detriment. That the actual reason is the discrimination. It’s a discriminatory effect.

PN190

THE COMMISSIONER: Yes, but sorry, I sound like a broken record. I’m having trouble seeing how clause 28 can provide for the termination of
Ms Sandici and that equalling the detrimental discriminatory effect because it provides for notice, it doesn’t provide for termination of employment - unless I am misreading it? I was about to say would you mind having a look at it for me?

PN191

MR BECKMAN: Sorry?

PN192

THE COMMISSIONER: Have you got a copy of the agreement?

PN193

MR BECKMAN: Yes.

PN194

THE COMMISSIONER: I need you to have a look at it for me please.

PN195

MR BECKMAN: So it says:

PN196

In the event that the library terminates the employment of an employee.

PN197

THE COMMISSIONER: Yes it does, but what’s the clause about really?

PN198

MR BECKMAN: The clause is about notice.

PN199

THE COMMISSIONER: Yes.

PN200

MR BECKMAN: With terminations.

PN201

THE COMMISSIONER: Yes, that’s right, yes. So being the devil’s advocate here if clause 28 had a paragraph in there which said that the employer may terminate the employee for a range of reasons or whatever it talks about, the general right to terminate, and then it starts where it does start and says in the event that the library actually does do that this is the notice that shall apply, would that make any difference, do you think, in terms of the Commission’s jurisdiction or are you saying to me that a clause which to me - actually, the work that that clause does is provides notice when somebody’s terminated? It doesn’t provide for their termination per say I don’t think. I think that if the work that the clause does is provides for the notice that shall apply to a person when the library decides to terminate their employment.

PN202

MR BECKMAN: Right.

PN203

THE COMMISSIONER: Do you understand the difficulty I’m having?

PN204

MR BECKMAN: Yes I do, I understand the difficulty. And I can only go back to the wording of the paragraph in the clause. Neither the agreement provisions nor their operation are to have discriminatory effect. The operation of the agreement is not discriminatory in and of itself, but Ms Sindici has been terminated in accordance with the provisions of this clause and Ms Sindici’s termination is a discriminatory effect. That’s the argument. It could be another clause about moving Ms Sindici to another place, that would still be a discriminatory - if another position was in some way detriment then that would still be a discriminatory effect. It doesn’t matter what clause it is, we say it is just a matter that the agreement ahs a discriminatory effect.

PN205

THE COMMISSIONER: And that arises from the requirement for Ms Sindici to carry out all of her duties?

PN206

MR BECKMAN: Yes, which is discriminatory.

PN207

THE COMMISSIONER: Yes. And that requirement is discriminatory for two reasons, one because she has a disability and so therefore it’s unreasonable, it’s discriminatory, in requiring that she do all of her duties and secondly the effect of doing that, which is the termination, is discriminatory in terms of clause 28.

PN208

MR BECKMAN: It is discriminatory in terms of clause 7.

PN209

THE COMMISSIONER: 7?

PN210

MR BECKMAN: 28 is just, in my argument, is just the effect. We say that paragraph is that this agreement, the operation or the provisions themselves, will not have discriminatory effect. So it doesn’t say that they should not be discriminatory as such. The effect can not be discriminatory and the effect is discriminatory if it is based on a disability apart from a defence, which is in the documents, and it has a detriment.

PN211

THE COMMISSIONER: Thank you, Mr Beckman. I do apologise for interrupting you to such a degree.

PN212

MR BECKMAN: I’d just go to - I think that the High Court decision is instructive. I might take the Commissioner to paragraph 31.

PN213

THE COMMISSIONER: Thank you.

PN214

MR BECKMAN:

PN215

Whether something is an inherent requirement of a particular employment for the purposes of the Act depends on whether it was an essential element of the particular employment. However, the inherent requirements of the employment involves much more than the physical ability to carry out the physical task in the employment. Thus implied in every contract of employment are obligations to fidelity and good faith on the part of the employee.

PN216

So that’s one view, is the essential - the inherent requirements of the job must be an essential element. I should first explain that case X is about a soldier who was HIV positive and the Army discharged him when he was shown to be HIV positive on the basis that you had, among other things, had to bleed safely in war. And that went all the way to the High Court and in that part of their argument about the inherent requirements of the position of a soldier required not to be HIV positive. It goes - if I might take the Commissioner also to paragraph 150. This is Gummow and Hayne JJs. Read this out and 151 is of relevance too. Firstly, your Honour:

PN217

The ability to carry out the requirements mentioned must be shown to be caused of a person’s disability as a resulting fact. It is not because of some feature of a person’s disability ...(reads)... Whether the word “particular” addresses attention to specific employment or the employee in question the word “employment” is somewhat broader than “job” or even “position”.

PN218

So what they’re saying there is it’s very restricted. The concept put forward by the respondent went to particular inherent requirements of the position, the inherent requirements of the employment which would be open to the SLV. Under the first dot point is a slightly broader concept so it gives them more space to argue that exception. Then it goes on at 51:

PN219

The use of the phrase “inherent requirements” and the requirement of attention on a particular employment make it plain that in the context of the Act it would be impermissible for an employer to lay down a requirement applicable across the board for every employee in that employer’s employment which would have the effect of requiring the dismissal or non-engagement of an employee because of a disability.

PN220

They repeat that:

PN221

The use of the phrase “inherent requirements” and the requirement of attention on a particular employment make it plain that in the context of the Act it would be impermissible for an employer to lay down a requirement applicable across the board for every employee in that employment which would have the effect of requiring the dismissal or non-engagement of an employee because of a disability. Such conduct would defy the clear purpose of the Act as is expressed in its language.

PN222

That is exactly the requirement that’s been placed on Ms Sindici. So I gave those points to give the Commission a feel for what the actual meaning of the words “inherent requirement of the position” or if we take that phrase “employment”. But they’re very close. They’re very close conceptions. I might go back to the submission. We dispute that the requirement placed on Ms Sindici was an inherent requirement of the position, that this phrase properly understood refers to an essential element of the employment both in the business and legal senses. And that’s at excerpt 37. So 37 just puts another slant on it. It must be essential in the business sense. In the middle of paragraph 37 it says:

PN223

But are those requirements essential in a business sense including public administration or in a legal sense can be regarded as inherent in the particular employment.

PN224

It’s got to be extension. We submit that the concept of inherent requirements of the position properly understood is a special extreme case of the reasonable adjustment. I take the Commissioner to Catholic Education at 115. The Catholic Education was a case of a student who was profoundly deaf and was denied access to a system of interpreters called Oft Learn and it was particularly effectively apparently a different language in its own right. Either in deciding that case the Full Bench of the Federal Court outlined the principles under which a case of that kind would be able to be decided.

PN225

What essentially the school said was look, this is reasonable, what we’ve done for the child is reasonable, it’s not discriminatory and in their decision they outlined the principles. I'll take the Commission to (iii) and this is the test of reasonableness from the employer’s point of view:

PN226

The test of reasonableness is less demanding than one of necessity but more demanding than the test of convenience. It follows that the question is not whether the decision to impose the requirement or condition is correct, but whether it has been shown to be objectively reasonable having regard to the circumstances of the case.

PN227

So what I think the Full Bench of the Federal Court are saying there is look, judging from the employer’s actions you’ve got at one end what is purely convenience and if it’s just convenience that’s not reasonable. You’ve got the other extreme, you’ve got the word “necessity” and we’ve had the other words in the High Court decision of X “essential”, “requirement”. It seems at one extreme you’ve got “necessity”, around about that extreme level you’ve got the “inherent requirements of the position or the employment”. My own personal view is it is even more restrictive than the word “necessity”. And at the other end you’ve got “convenience”.

PN228

And the dispute with regards to whether the requirement on Ms Sindici - which we will say is definitely discriminatory - is a reasonable discriminatory action. How that would be decided is in this decision we would argue. If the Commission is to the conceptualisation of what reasonable adjustment is and what the dispute is about is reasonable adjustment from Ms Sindici. That is the nub of it. I'll go on then. Furthermore, at 10, furthermore requirements that apply across the board, such as might have been for Ms Sindici, can not be inherent requirements of the employment because it would defeat the purposes of DDA. We’ve already looked at that.

PN229

One test proposed by the High Court to determine if the requirement is an inherent requirement of employment, would the position be essentially the same if the requirement was dispensed with? We read that out as well. We submit that the work on the compactus is not an inherent requirement of Ms Sindici’s job under the above test. It should be common ground that Ms Sindici has worked at the library for periods of years where she was given duties, where she was not required to work the compactus or was provided with a buddy to operate the compactus for her. As a matter of historical fact the compactus are not an inherent requirement of Ms Sindici’s position.

PN230

And this was very - I could be wrong here - it’s no more than a year and a half, two years ago that Ms Sindici had the buddy system with that. She was not required to work the compactus. Now, I might go on. The issue of creating legal relations. These are the arguments that we put going to clauses 7 and 8 which we say amount to an obligation on the library not to discriminate. The Full Bench of the Commission in Shop, Distributive and Allied Employees’ Association v Big W stores at 23 states:

PN231

What comprises a dispute over the application of the agreement should not be narrowly construed; to do so would be contrary to the notion that certified agreements are intended to facilitate the harmonious working relationship of the parties during the operation of the agreement.

PN232

And I won’t go through the clause. It’s a well known case. The principle is that you shouldn’t be too particular about it. It should be not narrowly construed. So the wider - it should be read up, not down. Right, the object of the DDA and the aims of clause 8 of the agreement are very similar. The DDA with respect to discrimination uses the phrase:

PN233

To eliminate as is far as practicable in its aims.

PN234

I don’t think it’s necessary to go to the DDA and read that out, but it’s to eliminate as far as its practicable. The clause of the agreement uses the phrase:

PN235

To help to prevent and eliminate.

PN236

I might actually get the DDA and read that out. I'll read out under the objects, DDA section 3:

PN237

The objects of this Act are to eliminate as far as practicable discrimination against persons on the grounds of disability in the areas of work, accommodation, et cetera.

PN238

So it eliminates both practicably and the aim in the agreement, the wording in the agreement, is to help to prevent and eliminate. So that’s the aim. It’s not that the - I'll go on. We submit that the words “helping to prevent and eliminate discrimination” in the first paragraph of clause 7 should be read to mean that the SLV has agreed not to discriminate on the basis of any of the disabilities listed in the clause. But acting in a discriminatory manner is inconsistent with the words “helping to prevent and eliminate discrimination”. If you’re helping to prevent and eliminate discrimination you can’t be discriminating against people. That is not helping to prevent and eliminate.

PN239

Going to clause 8, Code of Conduct states:

PN240

The code of conduct applicable throughout the public service will be the standard of behaviour expected of employees employed by the Library Board of Victoria.

PN241

The Code of Conduct Public Sector Employment Principles states the following:

PN242

Equal opportunity, providing a fair go for all. Aim, to employ a workforce that reflects the adversity of the community by making employment decisions that are free of extraneous considerations such as age, gender, seniority or affliction and by providing a workplace that is free from discrimination and harassment. By providing a workplace that is free from discrimination and harassment.

PN243

So we’d say that you read that clause 8 imports into the agreement the code of conduct and the code of conduct requires the behaviour of employees to be such that it provides a workplace that is free from discrimination. So the code of conduct, Commissioner, is - and I might go to it - but it is in terms of the behaviour. And I'll just go back to clause 8. Yes, clause 8. Sorry, Commissioner. It’s clause 8 that refers to behaviour. So the code of conduct applicable throughout the public sector would be the standard of behaviour expected of employees. It’s a standard of behaviour.

PN244

And then the code itself says that that behaviour will be such that it provides for a workplace that is free from discrimination.

PN245

THE COMMISSIONER: Where is that in the code?

PN246

MR BECKMAN: Sorry, Commissioner, it’s page 4:

PN247

Equal employment opportunity providing a fair go for all.

PN248

THE COMMISSIONER: That refers to employment decisions, equal employment opportunity.

PN249

MR BECKMAN: Public sector employment principles.

PN250

THE COMMISSIONER: Yes, page 4? The bottom of the box:

PN251

Equal employment opportunity, providing a fair go for all. Aim, to employ a workforce the reflects the diversity of the Commission by making employment decisions that are free of extraneous considerations.

PN252

So that’s saying that when employing somebody now.

PN253

MR BECKMAN: Yes, that is, yes. And then it goes on.

PN254

THE COMMISSIONER: Yes.

PN255

MR BECKMAN: “And by providing”.

PN256

THE COMMISSIONER: Okay. Because the argument that the State Library has put in their additional submissions was that the code of conduct essentially sets out the behaviours that are required of the employee and not of the employer. And so therefore putting it succinctly but not as nicely as the State Library did any jurisdictional arguments founded on clause 8 Code of Conduct irrelevant because clause 8 obligations are required of employees, not of the State Library. Do you have a response to that for me?

PN257

MR BECKMAN: It’s very technical, Commissioner. The truth of it is - - -

PN258

THE COMMISSIONER: This whole thing is, Mr Beckman.

PN259

MR BECKMAN: The truth is that they’re all employees. The only ones I suppose would be the board members who are not employees. These are people who are all employees. The decision makers are all employees. It’s hard to identify.

PN260

THE COMMISSIONER: But I’m assuming that clause 8 Code of Conduct ..... so you’re saying that .....

PN261

MR BECKMAN: The employees are - - -

PN262

THE COMMISSIONER: Employed by the Library Board of Victoria could be everybody up to and including .....

PN263

MR BECKMAN: Up to all the executive officers. I wouldn’t include the board.

PN264

THE COMMISSIONER: I don’t think they’re employees.

PN265

MS KELLMAN: Or the directors, if I could just clarify that point. Or the CEO.

PN266

MR BECKMAN: So providing a workplace that’s free from discrimination. That’s a cast iron obligation.

PN267

THE COMMISSIONER: Thank you.

PN268

MR BECKMAN: We’re going to 19 now of the submission. We submit that the words “providing a workplace that is free from discrimination” is a clear commitment not to discriminate against employees. I first have a note to refer to the APA decision that shows that the Australian Public Service Code of Conduct was imported into that agreement at 7. The ATO, the Australian Tax Office, at clause 7 just states:

PN269

Clause 18 of the ATO agreement states work environment, code of conduct, the ATO is committed to ensuring that all employees are aware of and comply with the standards of the conduct.

PN270

So a code of conduct can be imported into an agreement. This actually says that “providing a workplace that is free from discrimination”. It is refreshingly simple. The second paragraph of clause 7 states:

PN271

Accordingly we will make every endeavour to ensure that neither the agreement provisions or their operation are directly or indirectly discriminatory in their effects.

PN272

The respondent, at 20 of his submission, admits that the provision is not a mere aspirational prefatory provision. It is clear that this phrase imparts legal obligations because of its similarity to the wording in ASU v Australian Tax Office.

PN273

What the respondent seeks to deny is the plain meaning of clause 7 of the agreement. The clause compels employers to use every endeavour to ensure that the agreement provisions or their operation do not have a discriminatory effect. The key to understanding the clause is the word “effect” in clause 7. The obvious construction of the clause is that it prohibits the parties from using the agreement in a way that has a discriminatory effect. I have already explained that. I think we’ve gone over that.

PN274

At 22 the respondent states words to the effect that clause 28 has to be implemented in a discriminatory manner to attract clause 7. With respect the clause does not say this. It refers to discriminatory effects. If the effect of the clause is discriminatory then it attracts clause 7. The purpose of the clause is irrelevant. Whether the clause is properly complied with is also irrelevant. The effect of the operation of 28 upon Ms Sindici is to discriminate against her, therefore it attracts clause 7. So I think that comes down to the question, Commissioner, that you decide is whether Ms Sindici’s proposed termination is pursuant to clause 28.

PN275

The respondent at 4 in his submission says that the present jurisdiction is somehow not appropriate. The Full Bench put the contrary view in the Australian, Municipal, Administrative, Clerical and Services Union v Australian Tax Office at 67 as:

PN276

The existence of alternative means of -

PN277

Am I going too fast, Commissioner?

PN278

THE COMMISSIONER: I'm a bit multi-tasked, Mr Beckman. Thank you. Sometimes. I’m still with you, thank you.

PN279

MR BECKMAN: All right:

PN280

The existence of alternative means of enforcing to comply with the misconduct procedure does not of itself leave one to conclude that clause 118 was not intended to give rise to an ...(reads)... that the agreement and its operation do not have discriminatory effects. Clause 8 by the Public Service Code of Conduct imparts an obligation on the parties to provide a work environment that is free from discrimination.

PN281

So there are three heads of obligation on the library, we submit.

PN282

The meaning of discrimination characterising the dispute. The agreement does not define discrimination. Consequently the words should be given its plain and English meaning. The Macquarie dictionary defines the word “discriminate” as to make a decision in favour of or against a person or thing. We would submit that the meaning of discrimination should be given more depth by looking to relevant State and Federal anti-discrimination legislation on the following reasons.

PN283

So it isn’t defined in the agreement and we say that the Commission should look to relevant State and Federal legislation and in this particular case the DDA for these reasons:

PN284

(1) the legislation was on foot and known to the parties at the time of making the agreement

PN285

Australian, Municipal, Administrative, Clerical and Services Union v Australian Tax Office at 58. Sorry, its says 55. It should be 58, Commissioner.

PN286

THE COMMISSIONER: Thank you.

PN287

MR BECKMAN:

PN288

The second general observation is that the legislative content within the ATO agreement sits is also relevant. Kirby J in Amcor Limited also set out in other reasons or described ..... ordinarily be assumed that in agreeing as they did the parties intended the agreement to take its place within the industrial setting created by the Act.

PN289

The second reason we say that the Federal legislation should be used to define discrimination is the first two dot points of clause 7 preserve the rights of the parties in relation to State and Federal anti-discrimination legislation and clearly contemplates that the discrimination that clause 7 refers to is discrimination of the type referred to in the legislation.

PN290

(3):

PN291

Anti-discrimination legislation has similar aims to those stated in clause 7 of the agreement.

PN292

(4):

PN293

The attributes in the aims part of the provision derived from federal and state anti-discrimination legislation. It follows that the discrimination definitions should be informed by these statutes.

PN294

So the attributes in the aims part of the provision derive from federal and state anti-discrimination legislation, so by the provision I meant clause 7.

PN295

(5):

PN296

Although the Commission is not bound by the anti-discrimination legislation, it provides a sound basis upon which to decide this matter.

PN297

And (6):

PN298

The logical framework provided by anti-discrimination legislation and the relevant case law is fair to both parties.

PN299

27:

PN300

The Equal Opportunity Act 1996 and the Federal Disability Discrimination Act 1992, both define discrimination in like terms.

PN301

In the DDA, the definition of discrimination is contained in sections 5 through to 9. There are two types of discrimination, direction, section 5, and indirect, section 6. A single act of discrimination may be categorised as either direct or indirect or both. The DDA states and I should have put there direct disability discrimination, it should read, (1):

PN302

For the purposes of this Act, a person discriminates against another person, an aggrieved person, on the grounds of the disability of the aggrieved person if the cause of the aggrieved person's disability, the discriminator treats or proposed to treat he aggrieved person less favourably than in the circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.

PN303

So under the DDA, if someone is treated in like circumstances, less favourably than another because of their disability, that is discrimination. (2):

PN304

For the purposes of subsection 1, circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with the disability.

PN305

Indirect disability discrimination:

PN306

For the purposes of this Act, a person would discriminate or discriminates against another person, aggrieved person, on the grounds of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition, (a) to which a substantially higher proportion of persons without the disability comply or are able to comply.

PN307

And (b):

PN308

Which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

PN309

So this is indirect discrimination, the three things are that with which a suitably higher proportion of persons without the disability comply or are able to comply, that is not reasonable and which the aggrieved person cannot comply. Direct discrimination at 28 of the submission. The written reasons given by the SLV for the proposed termination of Ms Sindici were because of her inability to carry out any of her duties as outlined in the certificate of capacity issued on 2/1/07.

PN310

We allege that work restrictions outlined in the certificate of capacity issued on 2/1/07 were because of the temporary but particularly severe bout of depression. We submit that the proposed termination of Ms Sindici is to treat her less favourably than other employees would have been treated in the same or similar circumstances and that this less favourable treatment is based on a disability, so again we submit that the proposed termination of Ms Sindici is to treat her less favourably than other employees would have been treated in the same or similar circumstances and that this less favourable treatment is based on a disability.

PN311

31 is Wiggins. I take the Commissioner to Wiggins in 176, so Wiggins v the Department of Defence, if the Commissioner could go to 176. I will just read out the part of the submission and then read 176. In Wiggins v the Department of Defence and the Navy, FMCA800, a naval officer, Lieutenant Wiggins, was transferred to another position which was an effective demotion and a detriment. The reason for her transfer was because of frequent absences from duty due to depression. The court held that Lieutenant Wiggins had been discriminated against because of her disability and awarded significant damages with costs, so I take the Commissioner to 176 of the decision. The judge said:

PN312

In my view, there is evidence of unlawful discrimination based on the claims relying upon provisions of the DDA which arise in relation to the disability, namely depressive illness and the different treatment, namely her sick leave which led to adverse comments and removal from her post without consultation.

PN313

I don't remember exactly in the decision where it describes that they argued that she was off so much on sick leave intermittently that she couldn't perform her duties properly and that's why they gave her the transfer which was an effective demotion and that was held to be discrimination. We submit that the Wiggins case can be relied upon for guidance in this matter because the circumstances are similar to the present case. In both cases, the employee suffers from depression which has had the effect of limiting the employee's capacity to perform her duties.

PN314

In both cases, the employer has responded by taking detrimental action to remove the employee from the work site. We say the facts of the case are very similar, the principle. Indirect discrimination, the SLV stated verbally to the CPSU that Ms Sindici could not return to work because she could not carry out the full range of her duties. I might just stop there, Commissioner, and explain so it stops any confusion if there might be confusion about this.

PN315

As the Commission is probably aware, industrial disputes are often a moving feast, a dynamic process. The original notification of the dispute was based on the letter of termination given to Ms Sindici which stated from memory, it stated that you are hereby terminated on such and such a date due to your final certificate of incapacity which says that you cannot carry out any duties, so that is one area of direct discrimination we allege.

PN316

There is the second area of indirect discrimination which is really the issue which came about at the subsequent meeting with the SLV where it was stated to the union that Ms Sindici could return, but she can't do all her duties. Just so there isn't confusion about the two types of discrimination, direct and indirect, but the dispute is about the indirect, really.

PN317

THE COMMISSIONER: I just want to correct you, Mr Beckman. I think you're meant to say because the State Library insisted that Ms Sindici had to perform all of her duties.

PN318

MR BECKMAN: Yes, there was an insistence that she carry out all her duties.

PN319

THE COMMISSIONER: That's correct.

PN320

MR BECKMAN: Indirect discrimination. The SLV stated verbally to the CPSU that Ms Sindici could not perform the work because she could not carry out the full range of her duties. We allege that the reason Ms Sindici cannot carry out the full range of her duties is because she suffers from neck pain and depression. Section 6 of the DDA asked whether the alleged discriminator has required the aggrieved person to meet a requirement or condition that meets the three specified criteria of para A, B and C.

PN321

I will read that again. Section 6 of the DDA asks whether the alleged discriminator has required the aggrieved person to meet a requirement or condition that meets the three specified criteria in A, B and C. We submit that the present case meets the specified criteria, A, a substantially higher proportion of people without the disability are able to carry out the full range of their duties. The requirement that Ms Sindici carry out the full range of her duties is not reasonable having regard to the circumstances, an area of debate.

PN322

That Ms Sindici is not able to carry out the full range of her duties is a fact. I might say we argue that it is unreasonable, of course. We would submit that the SLV requirement that Ms Sindici carry out the full range of her duties is a condition or requirement that meets the definition of indirect discrimination contained in section 6 of the DDA. Characterisation of the dispute, 34. On 5/1/07 the CPSU wrote to the SLV invoking the disputes procedure of the agreement with regard to a dispute over the application of clause 7, anti-discrimination.

PN323

We alleged that the proposed termination of Ms Sindici was based on her disability and consequently a breach of clause 7. We notified the Commission of the dispute pursuant to section 170LW of the Workplace Relations Act 1996 in like terms on the same day. We notified the Commission and we wrote to the employer on the same day in like terms invoking the disputes procedure. On the next day the parties met in an attempt to settle the dispute which was unsuccessful.

PN324

On 17/1 a conciliation conference was held before the Commission which was also unable to resolve the dispute. On 31/1/07 a directions conference was held before the Commission where the CPSU noted and the parties accepted that the dispute was also in relation to clause 8 of the agreement. The parties agreed that the dispute would be settled by arbitration and that the jurisdictional issues would first be settled.

PN325

The SLV gave a commitment that Ms Sindici's employment would not be terminated before the completion of the arbitration proceedings. We were informed that they are no longer going to adhere to that commitment with absolute shock and horror and I will probably at the end of this have to address that issue. This is the characterisation of the dispute which it is claimed, Commissioner, is correct.

PN326

We reject the characterisation of the dispute put by the respondent. The dispute is not about the proposed termination of Ms Sindici per se. It is about the reasons for that proposed termination. We allege that the reason why Ms Sindici cannot complete all of her assigned duties is because of her disability. The requirement or condition that Ms Sindici must complete all of her assigned duties when she is not able to because of her disability is discrimination.

PN327

The dispute properly characterised is about this discrimination. The effect of the discrimination is the proposed termination which is a detriment. We say it meets the definition in the DDA and we say that the Commission should accept the DDA definition because of the reasons outlined in the beginning, the six reasons why that is an appropriate definition for determining whether this is discrimination or not.

PN328

The reasons were at 26 of the submission. I put six reasons why the legislation should be chosen by the Commission. The Commission doesn't have to. The Commission can use any definition she likes, but I submit it's a lot better than the dictionary definition. Nexus between clauses 7 and 8 and the dispute. In Robert Austin v RMIT University, the RMIT proposed to terminate Dr Austin's employment at the end of his probationary period.

PN329

The NTEU argued that the relevant enterprise agreement obligated the RMIT to provide supervision to Dr Austin of a certain kind and the RMIT had failed to do so and implicitly, this failure led to a proposed termination of Dr Austin. The NTEU based on these facts sought an order preventing the proposed termination, so the things in the agreement were, (1) that they made a big deal of academic leadership, some of them quite vague.

PN330

The argument was that the RMIT was obligated to provide Dr Austin with certain supervision during his probationary period, that they failed to do that and that led to the proposed termination. In general terms, the NTEU argued the compliance with the supervision clause of this agreement was a precondition for the valid use of the power to terminate Dr Austin. In the Austin case, the RMIT submitted that there was no jurisdiction to hear the matter because it was not a dispute about the application of the agreement.

PN331

In this decision, Commissioner Richards points out that the issue is one of characterisation. The Commissioner found that the Austin case could be characterised as a dispute with regard to the application of the relevant clause of the agreement. In the Austin case, there are three distinct elements. There is the relevant clause of the agreement, the subject matter of the dispute, alleged failure of the university to provide supervision of the requisite type and the proposed termination of Dr Austin. The nexus is between the agreement and the subject matter of the dispute. The proposed termination is the effect. Commissioner Richards states:

PN332

In some circumstances, a dispute over the outcome -

PN333

I will give the Commissioner time to get to the number 61, clause 61 of the RMIT decision.

PN334

THE COMMISSIONER: Thank you.

PN335

MR BECKMAN: 61 says:

PN336

In some circumstances, a dispute over an outcome of an exercise of discretion may not be able to be characterised as a dispute about the application of a term of an agreement itself ...(reads)... a probationary period is fettered by various procedural and other conditions.

PN337

And at 64 Commissioner Richards goes on:

PN338

At its most fundamental form, the dispute that is before the Commission and which has been the subject of two applications ...(reads)... nor is the applicant contesting the discretion of the vice chancellor per se.

PN339

One of the issues has been a really critical one. It's been saying that the dispute is about some other matter, but in this case it has not been a dispute about some other substantive matter or issue that's come before the parties that the Commission can discern:

PN340

Nor is the applicant contesting the discretion of the vice chancellor per se.

PN341

We submit that the key similarities between the two cases is the fact that the vice chancellor's discretion to terminate was fettered, to use the Commissioner's phrase, by the clause in the dispute. In like terms, the power of the SLV to terminate Ms Sindici is fettered by clauses 7 and 8 of the - excuse me, in like terms, the power of the SLV to terminate Ms Sindici is fettered by clauses 7 and 8 of the agreement which is the subject of the present dispute, so we're saying here that the power to terminate Ms Sindici is fettered, to use the Commissioner's words, by clauses 7 and 8 because the proposed termination of Ms Sindici is discriminatory and discrimination is prohibited under 7 and 8 - I should say discrimination that is not reasonable.

PN342

The subject of the clause in dispute in the Austin matter was different to the present case in form, but not in substance. In both cases, the relevant clauses required the employer to do something in a particular way and in both cases, the allegation is that the employer has failed to act in that particular way, that there is a nexus between the relevant clause of the agreement and the failure of the employer to comply with that clause.

PN343

In both cases, the effect of the alleged non-compliance result is a proposed termination, so we say it is very similar in substance and it has the three elements. In the present case, as in the Austin case, there are three elements, the obligation not to discriminate against contained in clauses 7 and 8, the discriminatory condition or requirement that Ms Sindici carry out all her duties despite her disability and the proposed termination which is the discriminatory effect.

PN344

We submit that there is a strong nexus between clauses 7 and 8 and the alleged discriminatory requirement or condition and its effect. Subsequently, there is a dispute with respect to the application of the agreement and we end where the Commissioner started which was the fundamental question and there is the answer for what is the union's position. I feel I should look at - I feel that I have covered the submission of the respondent, but not actually covered the second submission.

PN345

There's not much to it. The respondent submits in paragraph 3 the preliminary matter we note of the CPSU submission also goes beyond the scope of the Commission's direction. These directions made it clear that submissions were to be confined to jurisdictional issues in the application before the Commission. The CPSUs submission deals with merit issues in paragraphs 8 to 12 and 28 to 33. I don't see how they can be characterised as a merit issue.

PN346

They simply go to how do you determine whether there is a factual discrimination or whether there's a prima facie case for discrimination and I've just put the facts without having the benefit of evidence and trust the Commissioner will accept those facts for what they are, so we dispute that the submission deals with merit issues at all and at 10, in any event, clause 8 does not confer any rights or obligations under the agreement. This can be contrasted with the facts in Australian Tax Office where the Full Bench dealt with the code of conduct provision in an agreement in entirely different terms to provisions - the ATO is committed to ensure that all employees are aware of and comply with the standards.

PN347

If we go back to our code of conduct - yes, sorry, that is the words in the agreement, it's not the code of conduct, but the operative words are committed to ensuring, the ATO is committed to ensuring that all employees are aware of and comply with the standards detailed in the APS code of conduct and the operative words in our code of conduct at page 4 and we went over it before, but by providing a workplace that's free from discrimination.

PN348

THE COMMISSIONER: Are you comparing apples and pears, Mr Beckman?

PN349

MR BECKMAN: I don't think I am.

PN350

THE COMMISSIONER: The extract from the ATO case is what's in the agreement, I think, in their agreement, if I recall. It's not actually contained in the code of conduct.

PN351

MR BECKMAN: Yes, I am with the Commissioner now, yes. I will just address that. If we go back to the agreement, Commissioner:

PN352

The code of conduct applicable throughout the public service will be the standard behaviour expected of employees employed by the Library Board of Victoria.

PN353

So we say that that is a strong importation that says the sector will be the standard behaviour expected by - the code of conduct applicable throughout the public service will be the standard behaviour expected of employees employed by the Library Board of Victoria, so it is expected, it's a requirement and then that imports into the agreement the code of conduct and the code of conduct is specific about and providing a workplace that is free from discrimination. I think that's about it, Commissioner.

PN354

THE COMMISSIONER: Thank you, Mr Beckman. Mr Cook.

PN355

MR COOK: I will be brief, Commissioner. I will only be three to five minutes, addressing the relevant submissions given by my friend. Firstly, in relation to the two limbs upon which my friend says that the Commission's jurisdiction is attracted under clause 7 of the agreement, firstly, my friend referred to the active words of the first paragraph of clause 7 being by helping to prevent and eliminate discrimination. In my submission that's not correct.

PN356

The active words in the first paragraph of clause 7 are to be found within the first four words, we aim to achieve the principal objective in section 3J of the Workplace Relations Act and then picks up the wording of 3J of the pre-reform Workplace Relations Act. The relevant provision in the current Act is 3M. Now, these are exactly the kind of aspirational words, ie. we aim to achieve, referred to in the Full Bench decision in ATO, specifically paragraph 70 of that decision and I won't read out the relevant paragraph, but the Full Bench goes on to say unlike the relevant clause which did import an obligation or commitment, no reference in the relevant provisions which didn't import such a commitment, there's actually no reference in this provision to any commitment to ensuring a particular outcome and that's exactly the same circumstances as the Commission has before it at the moment in relation to the first paragraph of clause 7.

PN357

Now, in relation to the second limb of what I understand to be the CPSUs argument, now, there's no dispute coming from the respondent that the statutory provisions referred to apply. These provisions have always applied and they apply alongside clause 7. Clause 7 doesn't import any requirements under these statutes. It just says that those statutes apply and says that clause 7 does not affect their operation and I think I've addressed that in full in my initial submissions and if the Commissioner has any particular questions in relation to that or issues, I am happy to address the Commission on that.

PN358

In relation to my friend's argument on clause 28 of the agreement, that clause doesn't provide the relevant nexus. It's been complied with in full as conceded by my friend. Now, Ms Sindici's employment contract is to be terminated, notice has been given of that termination, so the termination of the contract will take effect on 9 February and she was given notice in accordance with clause 28, so, I mean, I think that's the distinction that really needs to be drawn in relation to the nexus between dispute over the agreement in clause 28 of the agreement and the current dispute.

PN359

In my submissions, the lengthy arguments as to the definition of inherent requirements and the merits of the current matter are totally irrelevant. We're not at this stage yet that goes to the merits. First we need to establish a nexus between the dispute and the agreement. Now, I've already dealt with that issue both orally and in our written submissions. In relation to the code of conduct, again clause 8 doesn't import any obligations on the State Library.

PN360

We contrast this issue in our further submissions, exhibit A2, with the code of conduct clause in the ASU and ATO case. In relation to who made the decision, the decision was made by the library as the employer. In any event, I query whether the relevant commitments are provided in clause 8. I note that the clause refers to the relevant - I will just take you to the clause, standard of behaviour expected of employees employed by the library.

PN361

That's not a commitment or an obligation and, indeed, clause 8 doesn't import the provisions of the code of conduct as suggested by my friend and therefore there's no dispute over the application of the agreement. I understand my friend may have been arguing that an employees of the library has somehow breached the code and therefore breached the agreement. That's the first time that that issue has been raised prior to today.

PN362

It certainly wasn't raised in the notice, the subject of the current proceedings or in the lengthy written submissions that were filed and served by the CPSU that one of the employees of the library somehow breached the code. That issue simply isn't in dispute between the parties and it therefore doesn't attract the Commission's jurisdiction. Finally, in relation to the commitment referred to in paragraph 37 of the CPSUs submissions, that commitment on my instructions was only in relation to these jurisdictional proceedings, that is the status quo under the agreement will be maintained until the Commission makes a decision as to jurisdiction and that was the limit of the commitment provided by the library which is contrary to what is put in paragraph 37 of the CPSUs submissions. I think that addresses the relevant issues raised by my friend during his submissions. Thank you, Commissioner.

PN363

THE COMMISSIONER: Thank you, Mr Cook. Mr Beckman, you foreshadowed earlier that you wished to be heard regarding the last matter that Mr Cook has just referred to and that is the issue regarding the status quo and the proposed termination of Ms Sindici's employment on Friday.

PN364

MR BECKMAN: Yes. There was a firm commitment by the library to the union in regards to that. It's plain that there's no misunderstanding about it. The commitment from the library was that Ms Sindici would not be terminated until the proceedings, all the proceedings before the Commission were finalised. There was even discussion - that we would have a discussion as to how Ms Sindici would be paid and the union argued that Ms Sindici for the time after the notice should be paid by the library, in fact extending the notice.

PN365

The library argued, no, it should come out of her annual leave or some other leave provision that she might have and there was a very long discussion about the principles and the reasons why Ms Sindici should be paid not out of her entitlements, because it would be unfair to Ms Sindici. Now to reneg on that agreement is appalling and there was a clear agreement. I would ask the Commission on that basis for an order preventing the termination. If the Commission decides in our favour, I would seek an order preventing the termination on Friday morning, preventing the termination until the whole matter is decided, as was agreed by the library.

PN366

THE COMMISSIONER: Thank you, Mr Beckman. Mr Cook.

PN367

MR COOK: Commissioner, my instructions are that if and when the Commission decides that it does have jurisdiction to arbitrate in relation to these current proceedings, these section 170LW proceedings, that the State Library will revisit the issue. That is only in the event that the Commission finds that it does have jurisdiction to arbitrate.

PN368

THE COMMISSIONER: Would the parties like my recollection of what was discussed between Mr Beckman and the State Library and myself? Would that be of assistance?

PN369

MR BECKMAN: Yes, Commissioner.

PN370

MR COOK: Yes, Commissioner.

PN371

THE COMMISSIONER: Okay, for me there were two things. Firstly, there was a discussion with the parties regarding the status quo clause in the disputes procedure. The Commission sought an understanding as to what that meant in terms of the history of it between the parties and my memory is that the State Library indicated that it had always been applied in the past as a status quo provision.

PN372

There was discussion between the parties about - long discussions between the parties about various ways of dealing with this matter and arising out of those discussions came a discussion about meeting a timetable and also payment for whatever the period was and my understanding about that was that as part of the timetable, the Commission committed to the parties that at 9 o'clock on Friday, this Friday morning, the Commission would issue its decision regarding the jurisdictional aspects of this matter.

PN373

My understanding was that immediately following that, dependent on what that decision was, there would be a discussion about a number of things, including - let's be hypothetical because I think I was when we had this discussion, if the Commission found that the Commission did have jurisdiction, there would need to be at timetable set for arbitration of the matter and if that was the scenario, there would definitely need to be a discussion about payment and implicit in that, I assumed, the status quo or otherwise, but that was to be revisited on Friday. Is that a fair recollection? Does that fairly summarise where we all got to?

PN374

MR BECKMAN: Pretty much, Commissioner.

PN375

THE COMMISSIONER: Mr Cook, does that fairly summarise your instructions?

PN376

MR COOK: Yes, on my instructions it does, Commissioner.

PN377

THE COMMISSIONER: So in short compass, there may or may not be a discussion on this matter on Friday. Do either party with to say anything else with respect to the jurisdictional objection by the State Library? Mr Cook is shaking his head. Mr Beckman.

PN378

MR BECKMAN: It's just the last - Toyota Motor Corporation. It was Commissioner Gay's decision. It seems logical to me, those are not the words that we are relying on.

PN379

THE COMMISSIONER: Thank you, Mr Beckman. Thank you very much, gentlemen. I appreciate the fullness of the submissions, particularly given the short time frame that the parties had and I also appreciate the opportunity to have heard oral submissions today. That has been from my perspective most helpful. I shall reserve my submission until we reconvene in formal hearing this Friday, 9 February at 9 am. The Commission stands adjourned.

<ADJOURNED UNTIL FRIDAY 9 FEBRUARY 2007 [4.02PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 OUTLINE OF SUBMISSIONS REGARDING JURISDICTION DATED 1/02/2007 PN98
EXHIBIT #A2 SUBSEQUENT SUBMISSIONS REGARDING POINT 8 RECEIVED 7/02/2007 PN98