C2007/3863, Transcript of Proceedings [2008] AIRCTrans 151 (4 April 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 18296-1

VICE PRESIDENT WATSON

C2007/3863

s.170LW - prereform Act - Appl’n for settlement of dispute (certified agreement)
Australian and International Pilots Association
and
Qantas Airways Limited
(C2007/3863)

SYDNEY

Reserved for Decision

10.09AM, THURSDAY, 20 MARCH 2008

PN1

MR I TAYLOR: I seek leave to appear for the Australian and International Pilots Association with MR P VAN DENHELLEUR.

PN2

MS H MCKENZIE: I seek leave to appear on behalf of Qantas with
MS P EMERY and MS BUSSELL.

PN3

THE VICE PRESIDENT: Leave is granted. Mr Taylor.

PN4

MR TAYLOR: Your Honour, both parties filed evidence but you'd be pleased to know that there's been some discussions which have led to some agreed facts as well as some documents which are attached to the affidavits. Could I start by handing up an agreed facts document and pointing to your Honour the documents which need to be read with this agreed facts document. Your Honour, in light of these agreed facts neither side will need to read their affidavits, although, as you will see, two paragraphs of one of the affidavits and some annexures to two of the affidavits are being read.

EXHIBIT #I1 AGREED FACTS DOCUMENT

PN5

MR TAYLOR: Your Honour, the relevant clause is before the Commission in various places, including perhaps conveniently in my friend's submissions at paragraph 2, that is clause 10 of what is referred to between the parties and by the Commission as EBA7 and the first agreed fact, as your Honour will see, is that that clause in that form was first introduced into an enterprise agreement between these parties in the 1998 agreement known as EBA4. The second agreed fact is that EBAs 5 and 6, as well as 7, contain the same clause and the third agreed fact goes to a document which is annexed to one of the affidavits that was filed by my client, the affidavit of Captain Brian Welch. We do not read the whole of the affidavit but, as is clear from agreed fact 3, we ask if your Honour would receive into evidence the document which is exhibit BW2 to the affidavit of Brian Welch sworn on 17 March 2008, a form R28 that was filed for the purpose of the certification of EBA6.

EXHIBIT #I2 EXHIBIT BW2

PN6

MR TAYLOR: The relevance of this, your Honour, is, as is clear from facts 1 and 2, EBA6 had clause 10 in the same form as EBA7 and if your Honour will turn to exhibit I2, which is the annexure, the form R28, and in particular turn to the last page where the signatures appear, one sees in accordance with the form the questions as to whether, as was required by section 170LT(8):

PN7

The agreement provided for procedures for preventing and settling disputes between the employer and employees as to matters arising under the agreement.

PN8

The answer there is clause 10 which is the same clause as is the clause 10 that's before your Honour in this proceeding. The answer to the next question was ticked as yes, that is:

PN9

Does the clause specified empower the Commission to settle disputes over the application of the agreement? Yes.

PN10

The next agreed fact, your Honour, is that there were R28 forms filed for the purpose of certification of this agreement. They are in the form of annexures to the affidavit of Phoebe Emery filed by Qantas and it would be appropriate to mark either together or separately those two documents, that is the documents which were together described as PE1 in the affidavit of Ms Emery. There are two
form R28s attached to that affidavit.

PN11

THE VICE PRESIDENT: I'll mark them separately, Mr Taylor.

EXHIBIT #I3 STATUTORY DECLARATION OF MS BUSSELL
EXHIBIT #I4 STATUTORY DECLARATION OF ROBYN HOLT

PN12

MR TAYLOR: The relevance of these documents is that in this case, even though clause 10 was exactly the same, the forms were in this case filled in - the relevant questions in this case were filled in with a tick against the word "no" as to that same question:

PN13

Does the clause specified empower the Commission to settle disputes over the application of the agreement.

PN14

Your Honour will see that as in both forms at 7.7.2. Even though the clause is the same, it didn't change, in one agreement it was said that it does empower the Commission and the next time it was said, doesn't. We say ultimately, therefore, neither form will take your Honour very far in interpreting the agreement.

PN15

Can I return to the agreed facts document, exhibit I1. The fifth agreed fact is that paragraphs 4 and 5 of the affidavit of Captain Brian Welch are agreed facts and so we would seek to tender, not the whole of Mr Welch's affidavit, but paragraphs 4 and 5 with one change and one deletion which I need to draw to your Honour's attention. If your Honour has paragraphs 4 and 5 of the affidavit of Mr Welch, here he describes in general terms the way in which the enterprise agreements EBA4 through to 7 were negotiated and in effect says that in each case there was no attempt to reinvent the wheel, rather the parties focused only on change and to the extent to which these things weren't changed, they remained the same and your Honour might well be aware of the size of this agreement and the sensibleness of an approach of that sort.

PN16

The words that are not read appear in paragraph 5 in the fourth line. The fourth line is part of a sentence which starts "subsequently the parties then" and we do not read the words "comprehensively and precisely". That sentence would read:

PN17

Subsequently the parties then documented what was agreed and embodied in the terms of settlement and following.

PN18

THE VICE PRESIDENT: Wouldn't it be appropriate that I regard paragraphs 4 and 5 as amended as effectively part of the agreed facts document?

PN19

MR TAYLOR: It would be, your Honour, if it please.

PN20

THE VICE PRESIDENT: It's not necessary therefore that it be marked separately. It would be part of the same document.

PN21

MR TAYLOR: Yes, that is the view of the parties, your Honour That would accord with what were hoping your Honour would do.

PN22

The last agreed fact, which really is relevant to this question of the form R28s being ticked in different ways. It is agreed that there were no discussions between the parties in the lead-up to EBA7 on the subject of any intended change to the effect of what is now clause 10 of EBA7. So to the extent to which any boxes were ticked, I submit, it wasn't because they were being ticked differently because the parties had agreed in negotiations on any different view about clause 10, something which is probably, in any event, evident from the fact that the words didn't change.

PN23

Your Honour, that, I think, subject to anything my friend says, is the entirety of the evidence that would be before your Honour. My friend confirms that's the case. That allows me to turn to the submissions - - -

PN24

MS MCKENZIE: I'm sorry, your Honour, perhaps I should just make this point clear, and the agreed facts were just provided to us just before we came in and just looking at agreed fact number 6, I think what Mr Taylor and I discussed yesterday afternoon was that the dispute settlement clause in EBA7 was not the subject of specific negotiation during the negotiations, it was not a matter that was raised in any way. To the extent that the words say:

PN25

On the subject of any intended change to the effect of what became clause 10 -

PN26

That would not be an agreed fact. We'd certainly be content, and I think this was where we got to, there is no factual contest that the dispute settlement clause in the enterprise agreement was the subject of any negotiation during EBA7. To the extent that the words "of any intended change to the effect of the clause" is intended to convey something different, that's not agreed.

PN27

MR TAYLOR: Your Honour, I don't think there's any difficulty with that. The words that I had in that document were not intended to suggest anything other than I think what my friend has just said, namely that there were no discussions between the parties on the subject of clause 10 in the EBA7. I think my friend said it was not raised in any way and that accords with my instructions.

PN28

THE VICE PRESIDENT: Should I disregard the words "of any intended change to the effect"?

PN29

MR TAYLOR: Yes, I'm content for those words to be disregarded and for it to read that:

PN30

There were no discussions between the parties during the negotiations for EBA7 on the subject of clause 10 in EBA7. It was not raised in any way.

PN31

MS MCKENZIE: I just don't want these agreed facts, all of a sudden, the actual word of them to be used as some climbing up over one small point to make a bigger point so I put the position very clearly. There is no evidence, and we've not addressed this, as to what the parties intended in relation to the statutory declarations that were signed with EBA6. We don't need to go there but I don't want my friend to make a submission that insofar as there has been an agreed fact, that the dispute settlement clause in EBA7 was not the subject of discussions in any way, that he will seek to suggest that what the parties intended in EBA6 somehow has greater weight than what was done in EBA7.

PN32

There just is no evidence about whether the parties turned their mind to what they were doing in EBA6. We're not going to go there. We rather thought where we got to was that the statutory declarations probably don't determine the matter one way or the other. It's not going to be something that we will invite your Honour to put any particular weight on and I think my friend is at the same position in relation EBA6 but for more abundant caution, I thought I should just clarify that in case Mr Taylor was choosing his words more carefully for a particular reason.

PN33

MR TAYLOR: No, I'm not that careful, your Honour. Maybe I am sometimes but in this case I will not make a submission that because of the form of words I chose one would regard what was said in form 28, in respect of EBA6, as in some way of greater weight than what was said in respect of EBA7. I agree with my friend that the two effectively cancel each other out, or at least that's my submission, and that ultimately little can be gained from the forms one way or the other. Lest there be any difficulty, can I just clarify for the record that the words that I proposed were now agreed facts and I'll say them again:

PN34

There were no discussions between the parties during the negotiations for EBA7 on the subject of clause 10 in EBA7.

PN35

MS MCKENZIE: That's correct, your Honour.

PN36

MR TAYLOR: Your Honour, I think that means, as indicated, that that's the evidence before your Honour and I can now turn to the submissions. Your Honour has been provided with an outline of submissions for the applicant, much of which describe matters which are not in contest and for which I'll only therefore spend a very short moment on, that is, in effect, the background to what does have to be determined.

PN37

THE VICE PRESIDENT: I'll mark that outline, Mr Taylor.

EXHIBIT #I5 OUTLINE OF SUBMISSIONS

PN38

MR TAYLOR: As exhibit I5 indicates in the opening paragraphs under the heading of Background, this is a matter which comes before the Commission as a result of a dispute between the parties as to whether a seniority list issued by Qantas on 13 August 2007 is consistent with clause 13 of EBA7. As the background further sets out in a matter that's not in contest, there were some discussions between the parties that failed to resolve that dispute. The matter was then notified to the Commission in December and your Honour is, of course, aware that conciliation occurred before your Honour which also failed to resolve the substantive matter and that my client then sought to have the question determined by arbitration and that the respondent Qantas takes the view that the Commission does not have power to arbitrate the dispute and that that is the question that's before your Honour today, namely does clause 10 of EBA7 confer upon your Honour an arbitral power.

PN39

There is no dispute between the parties that this being a pre-reform certified agreement made under Division 4 Part IVB, that section 170LW of the pre reform Act applies and would provide your Honour with a power if clause 10 in terms expressed such a power. That is not in issue so I think the next thing to do, your Honour, is to ask your Honour to turn to the clause, that is clause 10, which is headed - I've set this out at paragraph 12 of exhibit I5, the applicant's submissions. It's headed Disputes Settlement Procedure. It commences by saying that:

PN40

The following procedure will apply to avoid and resolve a dispute.

PN41

It is not in issue between the parties, as I understand it, as is clear from the
form R28s, that this clause is the clause that the parties intend to be the clause that deals with any dispute as to a matter arising under the agreement, that this is the relevant clause, the dispute is what the effect of the clause is. Clauses 10.1 and 10.2 have steps that must be taken, firstly, discussions between the parties; secondly, further meetings and then the key clause is 10.3 and 10.4. 10.3 is the focus of Qantas' submissions. It says that:

PN42

If the matter is still not settled either party may notify the existence of an industrial dispute to the Commission in accordance with the Act.

PN43

10.4 goes on to say:

PN44

Until the matter is determined, normal work will continue and neither party will be prejudiced as to the final settlement by the continuance of work.

PN45

As I understand the Qantas submissions, at least in the form they've been provided in writing, the focus is all on 10.3 and the focus is that if the matter is not settled the matter can be referred to the Commission and that nothing in 10.3 provides any arbitral power. In the absence of 10.4 that is a submission which would be accepted, I would concede. 10.4, however, must be read with 10.3, that is that the steps are, having had discussions the matter will be referred to the Commission and until it is determined, I would submit, your Honour, by the Commission, normal work will continue, et cetera. The focus of my client's submissions is on the word "determined" and what that word means.

PN46

Before I say anything further about that, can I just pause to deal with one matter which I anticipate from Qantas' submissions will be put and that is that one can draw a contrast between these words and the words in clause 9 which is the individual grievance procedure. Clause 9 has some words which are much more specific and much clearer as to there being an arbitral power which the parties will accept as binding. I anticipate an argument that, if the parties in clause 9 had drafted it in that manner and intended the same in clause 10, they could have used similar words.

PN47

As I think is clear from the evidence and the nature of the way these agreements are negotiated, one can't necessarily move off the assumption that clauses are always drafted simultaneously with a consistent mind. Given the way in which the agreement gets added to over time there can't be any necessary assumption that someone drafting one clause is going to have the same mind when drafting a second. When considering legislation it's quite common to consider the document as a whole on the assumption for the purpose - or a form of words is used in one section and not in another, something might said about that but where you've got situations where you've got industrial organisations who are taking a document and then from time to time thinking of a new way of dealing with a matter and they put a new clause in, one wouldn't necessarily draw the assumption that there's a consistent approach to drafting and use of words. While I'm presently unable to point to examples, I'm instructed that if you look at the document as a whole, there are a number of places in EBA7 where there is a level of repetition or overlap which reflects that manner of drafting, of it sort of being added to at various times.

PN48

THE VICE PRESIDENT: You're saying that in order to determine the intended meaning of a particular clause you go back to its original genesis in some previous agreement, but rather that it's not possible to adopt rules of construction that might apply to the statute when one looks at the industrial instrument that has been developed by renegotiation and variation only to the extent that matters have been raised by the parties.

PN49

MR TAYLOR: Yes, that is the position, your Honour, and in essence while in any event, even if they've been drafted simultaneously by the exact same people,. I wouldn't in any event concede that because a grievance procedure, which has a formal arbitration process that's quite distinct and different to Commission proceedings might be drafted in different words. They might well be. The only submission I'm making is that one wouldn't move off the assumption that because clause 9 and clause 10 have different words that there was an intention by the parties that they have a different effect, that one wouldn't have that assumption, I think is the submission I'm making. Really clause 10 needs to be examined for what it is and relying on the words it contains without attempting to draw some negative inference by the absence of words that one might find in another clause.

PN50

Your Honour, the next thing I wanted to turn to was the word "determined". We place a lot of emphasis on that word and I wish to rely on the dictionary definition and three authorities which I previously provided by way of a list of authorities. I have here to hand up the dictionary definition and the unreported authority in the Big W case.

PN51

THE VICE PRESIDENT: Thank you, Mr Taylor. I won't mark the authorities but I'll mark the extracts from the Macquarie dictionary.

EXHIBIT #I6 EXTRACTS FROM MACQUARIE DICTIONARY

PN52

MR TAYLOR: If your Honour could start by looking at exhibit I6, I have copied relevantly the page which includes the meanings of determination and determine. Can I start with determination because that is the word that is examined in Big W and the two CEPU Telstra decisions which I'll turn to. Determination has as meaning for the settlement of a dispute et cetera by authoritative decision and as your Honour will see when we turn to those authorities, it is that meaning in part which the Commission has relied on but it has also relied on meaning 10, conclusion or termination.

PN53

The word "determine" unsurprisingly, given the word "determination" has similar meanings - can I just say the word "determined" which is used here is obviously the past tense of the verb determine. There is a definition of determined as an adjective on page 588. I don't rely on that obviously, it's not used as an adjective, it's used as a verb. If one looks at the definition of determine, and in particular I rely on the first meaning:

PN54

To settle or decide (a dispute, question et cetera) by an authoritative decision.

PN55

Can I also draw to your Honour's attention to meaning 7, "To put an end to, terminate," and meaning 10, "To come to a decision or resolution, decide," and meaning 11, "To come to an end."

PN56

I think my friend put on her list a decision of Madgwick J, the well known decision in Kucks wherein his Honour said, amongst other things at the bottom of page 184 that:

PN57

The ordinary or well understood words are in general to be given their ordinary or usual meaning.

PN58

We would say that your Honour would move off the basis that the meaning of the word "determined" is one that can readily be established as an ordinary word from a dictionary definition.

PN59

THE VICE PRESIDENT: If one goes to the definition of determined as such, would you accept that the second of those is the more appropriate meaning in the context involved here, rather than the adjective determined in the sense of the first meaning?

PN60

MR TAYLOR: Yes, as an adjective, the second "decided, settled or resolved" if it was being used as an adjective, but in my respectful submission the word "determined" is being used as a verb in this case and so one can simply look at the meanings of the words "determine" which obviously carry with it - because it's written there determined. Certainly meaning 2 of the adjective "determined" to the extent to which it's relevant would be the relevant meaning and not the other meaning, that is resolved, unflinching or firm, although I'm sure the Commission is resolute, unflinching and firm at times but I don't think the parties require it to be.

PN61

Your Honour, I was going to turn now to the word "determination" which, as I've indicated, it really has the same meanings. I turn to that because as far as I can ascertain the word "determined' is not subject of authority, but the word "determination" is and it's in particular being considered in three decisions, two Full Bench decisions and a decision of Lawler VP, accepted by a Full Bench. Can I turn to the first of those, it's known as the Big W case. It's PR924554, an early decision in respect of 170LW by a Full Bench comprising Watson and Kaufman SDPs and Commissioner Foggo of 12 November 2002.

PN62

There were two issues before the court, both whether the clause granted an arbitral power, which is the same question here, but also whether the question or issue arose from or was a matter arising under the agreement. It's only the first question which is relevant here. A clause one finds at paragraph 12, your Honour, of the decision, the relevant clause, the Bench record that clause 2.9 of the agreement sets out a procedure for the settlement of disputes and grievances. They go on to quote subclauses (e), (i) and (j) and in particular (i), the words there were:

PN63

If the matter remains unresolved either party may refer it to the Australian Industrial Relations Commission for determination.

PN64

Here, if I can just pause, by way of comparison, in my submission the current clause is to the same effect, albeit broken over two subparagraphs. Here the concepts are drawn as to (1), that is, if it's unresolved refer it to the Commission for determination, but the clause in this agreement says, "If unresolved refer it to the Commission" next clause "until determined" but we would say to the same effect - - -

PN65

THE VICE PRESIDENT: That appears to be the difference between the parties, not so much what the word "determined" means but whether in the context in which it's used it is to the same effect as the Big W appeal.

PN66

MR TAYLOR: That's probably right, your Honour. I haven't yet noticed a focus by Qantas on the word "determined" and what it means. It might well be that they accept the definition as we say it. It's not yet clear to me that that's the case but it might well be.

PN67

The Full Bench turned to the meaning of the word "determination" at paragraph 31, the penultimate paragraph of the decision and while it appears getting the numbering of the clause wrong, referring to 29(j) rather than (i), the conclusion was that a referral for determination empowers the Commission to arbitrate. The Full Bench noted that in the appeal the respondent conceded that if a dispute is unresolved following the application of the steps in subclauses 2.9(b) to (h) it is referred to the Commission to bring about finality. The determination of the dispute bringing finality to the issue in dispute plainly envisages the Commission exercising whatever powers are required to finally determine the dispute, including the power to arbitrate if necessary.

PN68

In this decision the fact that the word "determination" or "determined" in this case has concepts of finality about it, was something which certainly was the point which led the Commission to finding that it incorporated necessarily arbitral power if it couldn't otherwise be determined. I took your Honour to the definition of determined, which includes, "To put an end to, to terminate, to come to an end". In my respectful submission clause 10.4, which starts "until the matter is determined" and goes on to say in effect, status quo, must carry with it, as the Full Bench in Big W said, a concept of finality, otherwise a status quo, it would appear, is required to be maintained forever. If you have a dispute about something, the matter could come ultimately to the Commission. If my friend's arguments are correct, the parties will thereafter not ever be able to move off status quo without being in breach because on my friend's submissions no finality can in fact be obtained without agreement.

PN69

I submit that that's not a sensible reading. It wouldn't be sensible to put the parties in breach of an agreement because - at risk of breach if they can't reach agreement, that they must thereafter maintain status quo forever. That wouldn't be a sensible reading of the clause. It couldn't be what the parties intended. The parties intended by the word "determined" to mean brought to an end by a decision or by agreement and as the Full Bench in Big W found, that concept of finality must carry with it, if necessary, an arbitral function.

PN70

Your Honour, the second decision that I put on the list was the decision of Lawler VP in CEPU v Telstra. This would be a decision familiar to the Commission but just to refresh the Commission's mind, if the Commission would open 125 IR, it's on page 92 that the Vice President set out the clause that was the focus of the debate in that case. At about point 3 of the page, on page 92, is the heading Disputes Settlement Procedure and it commences with words similar to the words in this clause:

PN71

If any matter arising as to the application of this agreement is in dispute it will be dealt with as follows.

PN72

Then at 17.2, at the middle of page 92 of the report, the clause said:

PN73

A dispute referred to the Australian Industrial Relations Commission will be referred for (a) in the case of a dispute over the application of any of the following clauses, conciliation/determination.

PN74

In that case the word "determination", the question of what that meant was in issue. There had been a previous decision involving the same parties where a Full Bench had held that the word "determination" meant - and I might take your Honour to the extract from that decision, which is set out at paragraph 24 of the Vice President's decision. He extracted part of the decision of the Full Bench in Telstra v CPSU which was a decision, print 3756. Page 97 of the report, the final two paragraphs of the extract, the Full Bench noted - and his Honour has put this in italics, that:

PN75

The use of the word "determination" referred to the agreement leads to a construction that it is arbitration by the Commission conducted within the jurisdictional limits established by the Act.

PN76

There was a view taken by that Full Bench that all that was intended by the word "determination" was that the Commission could arbitrate to the extent the Act otherwise permitted arbitration, not that the parties were themselves conferring an arbitral power and that is made clear in the next italicised paragraph, the final paragraph in what was paragraph 24 of the Vice President's decision where the Full Bench said:

PN77

We are satisfied that the disputes settlement procedures in the AOTC agreement did not provide the Commission with the power to arbitrate on a matter that was otherwise outside the jurisdiction of the Commission to determine.

PN78

His Honour distinguished that case on the basis that it was a case decided before the High Court decision in what's known as the private arbitration case which concluded that the Commission had a private arbitral power to the extent to which it was granted by the parties and having distinguished the case on that basis, his Honour at the end of paragraph 27 of the decision concluded that the word "determination" empowers arbitration by the Commission confined only by the terms of the agreement. His Honour said:

PN79

This conclusion is consistent with the approach of the Full Bench in Big W -

PN80

and is also supported by a distinction in powers conferred by other subparagraphs, namely a distinction between conciliation/determination and conciliation, a textual assistance that was given by the document in that case. In paragraph 28 his Honour concluded that there was an arbitral power that his Honour could exercise.

PN81

That case went on appeal and it came before a Full Bench and the third decision which I'd ask your Honour to open, is a decision of the Full Bench in CEPU v Telstra reported in 128 IR 385. That's a decision of the President, Harrison SDP and Commissioner Simmonds. Various issues were taken on appeal, one of which was the Vice President's conclusion that the word "determination" carried with it an arbitral power and that is something that the Full Bench was able to deal with in quite short terms at paragraphs 39 and 40 of the decision. In paragraph 39 the Full Bench noted that the debate focused on the word "determination" and in paragraph 39 the Full Bench summarised the Vice President's conclusion and then ended that paragraph by saying that they agreed with the Vice President's conclusion. In paragraph 40 the Full Bench said this, and I'll read it:

PN82

There can be no doubt that the term "determination" in the context of a dispute resolution procedure provided it is unqualified means arbitration. It was so held by a Full Bench in Big W. In this case the context reinforces that construction.

PN83

It's clear that here the context assisted in that construction but the Full Bench found, and I obviously rely on this, that the word "determination" in the context of a dispute resolution procedure, provided it is unqualified, means arbitration. We say little turns on the fact that here the word "determined" rather than "determination" is used.

PN84

In summary, your Honour, and by way of a conclusion, we submit that your Honour would read clauses 10.3 and 10.4 together. They are clearly steps in a process. 10.3 notifies the Commission of the existence of a dispute and 10.4 then says what is to occur thereafter. It uses the word "determined", a word which carries with it an authoritative decision, it carries with it that latent word "determination", the concept of arbitration. It carries with it the concept of finality and as the Full Bench in Big W concluded, one can't have finality merely by conciliation. We can't guarantee it merely by conciliation. It must carry with it the concept that if one can't agree or get the parties to agree, there is some other way of bringing finality and the only other way is arbitration.

PN85

If that were not to be the case, if the word "determined" was not said to carry with it necessarily some concept of arbitration, it would lead, as I earlier indicated, to what we say would be an odd result, not one that would be thought to be intended by the parties, namely the status quo would thereafter have to continue apparently forever. It could not mean that, it must, as the Full Bench said in Big W, carry with it the concept, that of finality and the capacity of the Commission to determine the matter, if necessary, by arbitration.

PN86

We say that at least to date Qantas hasn't sufficiently focused on the word "determined" and what it means and a proper focus on that word leads to the conclusion that arbitration is intended to be a power that the Commission can exercise to finalise a dispute that is notified. As I indicated from the outset, your Honour, and I don't think this is in issue, the parties intend clause 10 to be the clause which, amongst other things, professes the method of resolving a dispute that arises from the agreement which would include as to the interpretation or the way in which the parties should act in circumstances where the clause is in a certain form.

PN87

At all relevant times the parties have indicated that this is the 170LT(8) clause. This is the one which satisfies the requirement to have such a dispute resolution procedure and so there is no doubt, in my respectful submission, that the Commission can move on the basis that where the words in clause 10.3 are "if the matter is not settled" it means to include "if any dispute arising from this agreement is not settled" and thereafter.

PN88

Your Honour, they were the submissions I intended to make, unless there is anything further I can assist you with.

PN89

THE VICE PRESIDENT: Mr Taylor, I think you said that if the clause didn't go beyond clause 10.3. there would be no authority for arbitration and there is Full Bench authority with similar words that matters being referred to the Commission should be construed as meaning something but in the absence of something specific, not beyond conciliation.

PN90

MR TAYLOR: Yes, I accept that.

PN91

THE VICE PRESIDENT: Would you also accept that if the clause didn't go beyond clause 10.3, it would be open to the parties under clause 10.3 to agree on a case by case basis to submit a matter to determination or arbitration?

PN92

MR TAYLOR: Certainly it would always be open to the parties to agree to be bound by a recommendation. I only hesitate because I just can't recall whether the Act as currently drafted still contains 111AA which was the provision which provided the Commission with a statutory power to, in effect, make binding recommendations in conciliation, but certainly parties can always agree on a private arbitration in any particular dispute. Whether it can be done by the Commission, I suspect it can, but I don't think anything turns on that, if I understand the purpose of your Honour's question.

PN93

THE VICE PRESIDENT: Yes, thank you. Ms McKenzie.

PN94

MS MCKENZIE: Your Honour, can I perhaps start by responding directly to the last submission that Mr Taylor made which was to the effect that he understood that it was not in dispute, that clause 10 was the only relevant source of power if any such power existed to conduct a private arbitration and that this was the clause which was the only matter that the Commission had to consider. We obviously didn't make the point clear enough in our amended submissions. Can I first inquire whether your Honour received those amended submissions yesterday?

PN95

THE VICE PRESIDENT: I have received them, yes..

PN96

MS MCKENZIE: I apologise for those coming late, your Honour, but it seemed, as we developed the preparation of the case, helpful to develop this issue a little bit further.

PN97

THE VICE PRESIDENT: Yes, indeed.

EXHIBIT #Q1 AMENDED SUBMISSIONS

PN98

MS MCKENZIE: In our amended submissions, your Honour, we submit that the Commission needs to look at the entirety of the dispute settlement processes provided for in the agreement which, of course, includes clause 9.

PN99

My friend's case essentially, in order to succeed, asks the Commission to do two things primarily, firstly, to consider clause 10 in isolation from any other provision in the agreement and also from the broader legislative background, and secondly, to regard the reference in clause 10.4 to the matter being determined, insofar as that word connotes bringing matters to finality or conclusion, as being in itself determinative of the agreement of the parties to confer a power of private arbitration. In our submission, that approach simply ignores other significant obstacles, we say, in relation to both the construction of clause 10 and the construction and application of other provisions in the agreement.

PN100

I refer your Honour to the Amcor decision which is decision number 5 in our authorities. I perhaps hand up, I believe it's a bundle of our authorities, or does your Honour have - I'll hand up the bundle. It's a decision of the High Court in Amcor v CFMEU and the reference is [2005] HCA 10; 222 CLR 241 and at paragraph 30 on page 253 of the reported decision, the court is considering the particular provision of the certified agreement which was the subject of the proceedings. At paragraph 30 the court says that:

PN101

Clause 55.1.1 must be read in context. It is necessary therefore to have regard not only to the text of clause 55.1.1 ...(reads)... background against which the agreement was made under which it was to operate.

PN102

In that context the court is providing instructions as to how certified agreements are relevantly to be interpreted. In our submission applying that general approach in determining whether or not the parties to this agreement in fact empower the Commission to settle disputes by way of private arbitration, one must look first of all at the particular clause relied upon; secondly, at the other provisions in the agreement to see how they sit together as a whole and thirdly, look at the legislative background against which that agreement was made.

PN103

My friend relies substantially on clause 10.4 of clause 10. In our submission clause 10.4 viewed as a distinct subclause in its own right at the moment, deals with the continuation of work. The subject-matter of subclause 10.4 is to provide that normal work will continue while the dispute settlement procedure is playing out and neither party will be prejudiced as to the final settlement by the continuation of work.

PN104

I think in his submissions my friend referred to 10.4 as being what happens thereafter, after steps 1, 2 and 3 have been followed. In our submission, that construction is not available on the words. Subclause 10.4 governs the whole of the dispute settlement procedure. The continuation of normal work occurs from the outset and subclause 10.4 is really directed to a different subject-matter than the procedure whereby the dispute is to be settled.

PN105

In our submission, when one looks at 10 in its entirety the procedure whereby disputes are to be settled is firstly, a discussion; secondly, further discussions and meetings and thirdly, at the election of either party, the notification to the Commission of an industrial dispute in accordance with the Act. When one then comes to 10.4 it's directed at ensuring that whilst that process is taking place there will be a continuation of normal work and that provision is not an unusual provision to find in dispute settlement clauses.

PN106

In looking at just the particular subclause, in our submission when one looks at the work which that subclause is directed at doing, it doesn't support the conferral of a power of private arbitration and doesn't, properly construed, constitute a separate and discrete step in the settlement process in the way my friend submits.
Looking at the totality of the clause then, the introductory words provide that:

PN107

The procedure will apply to avoid and resolve a dispute, not being a dispute within the scope of clause 9, dealing with grievance procedures -

PN108

and I'll come to the significance of clause 9 in a moment:

PN109

- arising in the enterprise.

PN110

Clause 10 doesn't contain the words "in relation to a matter arising under the agreement or in relation to a dispute over the application of the agreement." Clause 10 on its face is directed to any dispute arising in the enterprise and of course, insofar as it uses those words, it goes way beyond the jurisdictional limitations which section 170LW imposes on the Commission in relation to the role it can play in the dispute settlement procedure in certified agreements.

PN111

On its face this clause does not mirror the words of section 170LW and is not confined in its object to disputes over the application of the agreement so the terms are broader. The fact that those terms are broader is explained, your Honour, by the origin of this clause and your Honour, I think, asked Mr Taylor whether the genesis of the clause in itself is a matter that may have some relevance. In our submission it is part of the overall context which, applying the approach of the High Court in Amcor, the Commission should have regard to. The origin of this clause is in the award which underpinned the agreement and perhaps if I can hand up to your Honour a copy of clause 11A from the Technical Aircrew Long Haul Award 1996.

EXHIBIT #Q2 EXTRACT FROM AWARD

PN112

MS MCKENZIE: The correct name of the award, your Honour, is the Qantas Airways Limited Technical Aircrew (Long Haul) Award 1996 and I should say, your Honour, the extract comes from the award prior to the simplification of the award and at the time at which this provision was in the award, there was also a grievance procedure, clause 28 of the award, which was in terms similar to
clause 9 of the current enterprise agreement. In 1996 this provision was in the award and in our submission, when one looks at the language of the provision, one will see that it is language which refers and reflects the more traditional jurisdiction which the Commission exercised under the federal legislation. 10.3 demonstrates this point, in our submission, in the language that it uses. It says:

PN113

Either party may notify the existence of an industrial dispute to the Commission.

PN114

In our submission, the language of notifying the existence of an industrial dispute is language which calls up or invokes the old section 99 jurisdiction. The parties would notify an industrial dispute to the Commission, industrial dispute had a statutory meaning in the Act and the Commission would then exercise its statutory powers of conciliation and/or arbitration

PN115

When the provision was transferred into - - -

PN116

MR TAYLOR: Objection. It's one thing to hand up an award clause, but it's another thing to say from the bar table the clause was transferred in or was the basis of or the parties agreed would be, and as to the order of events as to where the clause first arrived but that's not a matter of any evidence, nor, as I can understand it, a matter that was in any way alluded to in the contentions and to which we've had any notes. If my friend is seeking to prove or to ask your Honour to assert that the clause was drafted in '96, then went into the EBA and that the parties had some understanding as to why it was going in on that basis, that is not a matter which is before your Honour.

PN117

MS MCKENZIE: No, that's not what I'm doing, your Honour. That's not the purpose of the submission and Mr Taylor was correct to interrupt me. In using the word "transferred" I wasn't seeking to submit that there was any conscious intent there. Perhaps if I say it this way: we simply rely on the fact that there was a clause in the same terms in the award and we do submit, when one looks at the language used in clause 10, as it appears in the agreement, that the language is more consistent with the sorts of provisions that were included in awards, in particular the use of language notifying the existence of the industrial dispute and in accordance with the Act, is language which, in our submission, as it appears in an enterprise agreement, to the extent that it invokes jurisdiction for the Commission, the jurisdiction that it invokes is the jurisdiction which the Commission has under the legislation and it doesn't go beyond that and couldn't be taken to go beyond that to confer a power of private arbitration.

PN118

In the private arbitration case that Mr Taylor referred you to, the court considered in some detail the difference between arbitration - I withdraw that. The court drew a distinction between dispute settlement procedures which were the result of an arbitrated process as they were put into an award and dispute settlement procedures that parties agreed to and put into a certified agreement. The High Court observed that in an arbitrated dispute settlement procedure clause such as would appear in an award, the Commission's jurisdiction is of course limited to the role of statutory arbitration, if I can use that term, which was, of course, to do with the creation of rights and not the binding determination of existing rights.

PN119

The High Court, I think in their decision said that would constitute an exercise of judicial power and to the extent that any award provision that contained a dispute settlement procedure purported to confer judicial power on the Commission, that, of course, would be invalid. The High Court drew a distinction between arbitrated dispute settlement procedures that were sought that was in the 1996 award and dispute settlement procedures that were the result of bargaining which, subject to the limitations of section 170LW committed the parties to confer a different type of arbitration power on the Commission for private arbitration which, insofar as it permitted the Commission to make a binding determination, did involve the exercise of, had it been an award provision, a judicial power. Perhaps if I give your Honour the reference to that passage. It's in CFMEU v AIRC [2001] HCA 16; 203 CLR 645 and it's at paragraph 26 through to 27 of the decision and it appears shortly before the passage which is the most commonly quoted passage of that decision which starts at paragraph 30. At the top of page 657 the court says:

PN120

An arbitrated dispute resolution provision will be invalid to the extent that it purports to confer judicial power ...(reads)... liabilities arising out of an award or agreement is of its nature judicial power.

PN121

Then down the bottom of paragraph 30:

PN122

There is, however, a significant difference between agreed and arbitrated dispute settlement procedures ...(reads)... does not exercise judicial power but a power of private arbitration.

PN123

I won't read the rest of the passage. It's clear from the High Court's decision there that the conferring of the power of private arbitration on the Commission is the conferring of a quite significantly different power to that which the Commission would otherwise be able to exercise pursuant to an arbitrated dispute resolution process.

PN124

The parties are, through conferring a power of private arbitration, effectively conferring on the Commission the right to exercise quasi judicial power and to make binding determinations as to existing rights and obligations of the parties. That is a significantly different power to the power that would otherwise be exercised by the Commission under its statutory functions, either at the time of the making of this agreement or under the present legislation.

PN125

Before finding that the parties have agreed to confer that kind of power on the Commission, the Commission would have to be satisfied that the agreement is clear and unequivocal and that the terms of the agreement leave no room for doubt that that is the nature of the functional role or power that the parties wish to confer.

PN126

The wording of section 170LW says that the parties may empower. There needs to be an active and causative decision on the part of the parties to confer, give that power to the Commission, a power which is quite qualitatively different and substantively greater than the power it would otherwise have. In our submission, the Commission could simply not find that by reference to clause 10, even if clause 10 was in isolation the only source of dispute resolution processes, the Commission could not find from the wording of clause 10 that that is the nature of the power which the parties intended to confer on the Commission.

PN127

To do so one would, first of all, have to read down the introductory words about disputes arising in the enterprise to limit the power to disputes arising over the application of the agreement, in other words to read it down to bring it within the Commission's powers as conferred by section 170LW. One would then have to read down or re-read subclause 10.3 to say that even though the words say "notify the existence of the industrial dispute," the parties really intended to mean to refer the dispute over the application of the agreement to the Commission for adoption of a dispute settlement process, in other words, to pick up the language of from R28 rather than the language that the clause itself uses and to effectively ignore or give no meaning to the words "in accordance with the Act". In our submission that is in itself an obstacle to the construction submitted for by my friend. "In accordance with the Act," in our submission, could mean that the powers that the Commission has to deal with a dispute notified to it, are the powers which the Act gives the Commission.

PN128

At the time this agreement was made the only powers that the Commission had to deal with an industrial dispute notified under the Act to it, were in respect of matters which were allowable award matters within section 89A. In the absence of clear intent that the parties were not so limiting themselves to the Commission's statutory jurisdiction, the Commission would be confined by subclause 10.3 to only acting in accordance with its powers under the Act and in 2005 that limited the Commission to arbitrating matters that concerned allowable award matters. Of course, today, if one construes that to be in accordance with the Act, as varied from time to time, it would not give the Commission any role in relation to the exercise of arbitral functions.

PN129

It's certainly the case in the High Court in the private arbitration case. The court held that a private arbitration clause was not constrained by section 89A and that much is clear, but the clause that was the subject of the High Court proceedings did not contain that limitation, the words "limitation in accordance with the Act". In our submission, if those words mean anything in the procedure, it limits the Commission's jurisdiction, even if one got to the point where one found that this clause was otherwise intending to confer a role for the Commission in relation to disputes, other than the role that the Commission described in the ABC v MEAA case which was bring it to the Commission, it wasn't simply the repository of the filing, it was to do something and it was to exercise its conciliation powers. As we put in our outline, in our submission this clause should be regarded as being relevantly similar to the clause in the ABC case and then 10.4, we've made our submissions in relation to the effect of that.

PN130

My friend's case really depends solely on the phrase "until the matter is determined". We don't disagree that determined has those connotations that my friend has submitted. As your Honour perhaps foreshadowed rightly, our submission is that the context materially changes the meaning that that word is to have, given the surrounding words.

PN131

My friend relies on the Big W case and the Telstra case. The differences between his clause and the dispute settlement procedure clauses in those two cases really make our point for us in effect. In the Big W case the relevant clause was:

PN132

If the matter remains unresolved, either party may refer it to the Australian Industrial Relations Commission for determination.

PN133

The words that my friend requires the Commission to read into 10.4, which is the words "by the Commission" were expressly included in the Big W clause and the express inclusion of those words changes fundamentally the meaning of that clause. We don't disagree that had 10.4 said, "Until the matter is determined by the Commission," my friend's case would be stronger but the Commission can’t simply imply those words just to give the clause a meaning which supports private arbitration.

PN134

My friend suggests that that's what the Commission must do because the clause would not have sensibly any other meaning. That can't be right, in our submission, and as the Full Bench in the Ampol v AIMPE case, which we've put on our authorities, observed, dispute settlement procedures don't always provide for the final settlement of the dispute and they don't have to provide for the final settlement of the dispute. The matter could be determined by the parties. The matter could be determined by the effluxion of time. The issue may go away because other things have happened. The matter could be determined by a variation to the agreement. The matter could be determined by the making of a new agreement. The matter could be determined by the conduct of the employees.

PN135

A matter which began as a dispute could be determined and therefore settled in any number of ways. It's not necessary to read into 10.4 in order for the clause to have work to do, that the determination must be by the Commission. Had the parties intended, the Commission to be the body which determined the matter, the parties would have said so and they would have said so in the way in which they specifically addressed the matter in clause 9.

PN136

My friend anticipates, almost correctly, what our position is in relation to the significance of clause 9 and applying again the approach in the Amcor case, the Commission must, in construing clause 10, look at the rest of the agreement. As my friend observed, and we ask your Honour to note, this is a very big agreement and it deals with very complex, highly prescriptive matters going to the work arrangements of long haul international pilots. Many of the matters contained in the body of the agreement, including the appendices which contain letters of agreement which form part of the certified agreement, are matters of complex technical matters to do with the working of pilots, not matters which, in our submission, the parties would have lightly handed over ultimate responsibility for resolution to the Commission without very deliberately doing so.

PN137

When one looks at clause 9, in our submission, the scheme and intent of the parties in the way in which matters were to be dealt with, stands in stark contrast to the way in which clause 10 is worded. Clause 9 appears as the first clause in part 3 of the EBA and part 3 is headed, Grievance and Disciplinary Procedures, Dispute Resolution and Consultation for Enterprise Flexibility. In our submission, insofar as section 170LT(8) of the Act requires pre-reform certified agreements to contain procedures for preventing and settling disputes between the employer and employees about matters arising under the agreement, the clause that complies with that mandate is clause 9 and clause 10 read together.
Clause 10 alone does not, in our submission, satisfy the requirements of section 170LT. It's clear, when one looks at the wording of 9.1:

PN138

Subject to the Act and clause 9.3, these grievance procedures will apply to any dispute on any matter arising out of this agreement.

PN139

It picks up the "arising out of this agreement" which is the language of LT and LW in a way which clause 10 doesn't. On its face clause 9.1 says that:

PN140

9 is the procedures which will apply to any dispute on any matter arising out of this agreement, not being a dispute within the scope of clause 10 containing the dispute settlement procedure.

PN141

As we say in our submissions, it's a somewhat circular exclusion because
clause 10 contains the same exclusion in that clause 10 states that:

PN142

The procedure applies to avoid and resolve a dispute not being a dispute within the scope of clause 9 dealing with grievance procedures.

PN143

In our submission, when one looks at the level of prescription and detail in clause 9, one would only exclude matters from the application of clause 9 if they were matters which could not otherwise fall within clause 9, for example, matters which are in 9.3 which are expressly excluded from the grievance procedures.

PN144

The matters which are excluded in 9.3 are all matters which, in our submission, one could not sensibly construe as matters which the parties intended to be able to be referred to the Commission for private arbitration, matters relating to operational safety, matters relating to a flight crew member's operating proficiency, pilots' standards, flight engineering standards, the negotiations of a new agreement, variation, negotiation or variation of any conditions or benefits, superannuation fund benefits. When one looks at the agreement as a whole, one could not construe the effect of that exclusion from clause 9.1 to mean that those matters could all be easily dealt with and resolved by private arbitration in clause 10. That, in our submission, would not be a sensible outcome, having regard to the overall scheme of clause 9.

PN145

THE VICE PRESIDENT: What do you say this dispute should be characterised as and what is the available avenues under the agreement to have the matter agitated?

PN146

MS MCKENZIE: Under clause 9, your Honour. There's no argument that this is not a dispute arising out of the agreement or over the application of the provisions of the agreement, it concerns the seniority provisions in clause 13 and LOA161. As presently notified and as presently argued by AIPA, it in our submission appears to be a dispute that should be dealt with in accordance with clause 9. I say as presently argued because it's possible that if the remedy which was ultimately sought from AIPA was really an interpretation or enforcement of the agreement, there might at some point down the track, when it became clearer what decision is ultimately being sought by the Board of Appeal, for example, under clause 9. It may be that there would be a jurisdictional issue in relation to whether or not, properly construed, the relief sought was in the nature of an exercise of judicial power.

PN147

I make that reservation, but on the face of it, based on the dispute as presently articulated and the remedy which AIPA seeks, there's no jurisdictional reason why that matter cannot at least be progressed through the steps set out in clause 9. In fact, our submission is they should be.

PN148

THE VICE PRESIDENT: If these provisions are part of the agreement of the parties, then why does the issue of judicial power arise?

PN149

MS MCKENZIE: It's because of the express limitations on the Board of Appeal's powers under clause 9, your Honour. Clause 9 sets out the coverage of the procedures and then 9.2 provides for additional matters, 9.3 excludes the matters. My friend, I think, described clause 9 as dealing with individual grievances. We say that's not correct. 9.4 makes it clear that, although it's a flight crew member who is actually affected or likely to be affected, who is entitled to access the procedures, 9.4 says:

PN150

For the purposes of this clause, flight crew member includes a group of flight crew members.

PN151

Clearly, collective or group grievances can be pursued under the clause. The scheme of clause 9 is to provide for a grievance to be lodged, the company to investigate, to come to a decision, there to be an internal appeal against that decision and then if that internal appeal does not resolve the matter, there's a right to have a further appeal to a Board of Appeal and 9.5 makes it clear that the Board of Appeal determines any appeal. There are some limitations in 9.6 and this is 9.6.1(b), the matter that I was referring to, your Honour, that unless agreed by the parties the Board of Appeal can't make general determinations of the meaning of any provision so there is some limitation expressly in clause 9 on the Board of Appeal's role to simply make general determinations of interpretation or declarations of existing rights, that that's a matter that perhaps doesn't come into play until the particular remedy sought.

PN152

THE VICE PRESIDENT: You say make general determinations might extend to the determination of an individual grievance insofar as it relates to the interpretation of a clause of the agreement.

PN153

MS MCKENZIE: Yes.

PN154

THE VICE PRESIDENT: That's not a matter that I need determine.

PN155

MS MCKENZIE: No, not yet, your Honour. 9.12, importantly, your Honour, makes it very clear, expressly that the determination of the Board of Appeal is binding on the appeal of the company and its flight crew members. The express conferral of a power on the part of the Board of Appeal to finally determine matters that come before it is very different to the language used in clause 10. The parties have clearly spent some considerable time in setting out the procedures that are to be followed for the determination of matters arising under the agreement.

PN156

They fall under clause 9 into two categories, disciplinary matters, non-disciplinary matters, there's a separate procedure for each, the Board of Appeal is established, the constitution and composition of the Board of Appeal is dealt with, the function of the Board of Appeal, the expenses, the costs, the procedure to be adopted by the Board of Appeal is all spelled out in clause 9. There are specific procedural provisions dealing with the application of procedural fairness and matters of that nature and at the end of clause 9.16.12:

PN157

The association will be a party to any proceedings arising under clause 9.

PN158

These are not just individual grievances that are dealt with as between the company and its pilot, 9.16.12 makes it clear that the association is a party to every procedure and the procedures apply to collective grievances. When one looks at the scheme of clause 9, in our submission it is very clear firstly, that this is the procedure that the parties agreed would be the appropriate dispute settlement procedure within the meaning of section 170LT.

PN159

This procedure doesn't confer any powers on the Commission in relation to the settlement of disputes, rather the parties have agreed on a different procedure which includes as the final decision-maker a Board of Appeal constituted by a jointly agreed external independent chairperson and a representative from both the association and the company. I'm instructed, and I don't think there's any factual dispute about this, that the Board of Appeal has been constituted on numerous occasions. In recent years a former member of the Commission, Mr Palmer, has been the chairperson of the Board of Appeal and it is the Board of Appeal where disputes arising under the agreement have been progressed.

PN160

I'm also instructed, your Honour, although there is no evidence on about this, that Qantas is not aware of any matter, any dispute arising under this agreement which has been the subject of any arbitration by the Commission pursuant to clause 10. There's certainly been matters where a matter has come to the Commission and the parties have accepted the Commission's assistance through the exercise of conciliation powers, but I'm instructed that there's no matter where, to the extent that the fact of the proceedings reflects the agreement or intention of the parties, where it could be said that either party has conducted itself in a way which is consistent with the conferring of a power of private arbitration on the Commission. I stand to be corrected on that but they're my instructions in relation to that.

PN161

THE VICE PRESIDENT: Do you accept that, for example, clause 9.16.6 may have application to this matter?

PN162

MS MCKENZIE: The fact that a test case or a matter involving an individual can apply?

PN163

THE VICE PRESIDENT: Yes.

PN164

MS MCKENZIE: Your Honour, I'm not sufficiently familiar with the extent to which the facts differ in relation to each of the complaints or grievances that exist in relation to the application of seniority. Insofar as I understand that the issue relates to the treatment of the cadet pilots, on its face it would appear that, yes, that would have application and one case may resolve it, but I'm not sufficiently familiar with the extent to which there are factual permutations in relation to different pilots.

PN165

THE VICE PRESIDENT: So long as it wasn't a general determination of the meaning which depends on agreement under clause 9.6.1.

PN166

MS MCKENZIE: Yes. As your Honour notes, the parties could agree in a particular instance that it would be of assistance, perhaps, if the Board of Appeal did express a view. To the extent that in this dispute it's the - as I understand it anyway, it's in part the relationship between clause 13 and the letter of agreement, there may be some merit in the parties asking that that be settled on a more general basis. That's a matter for the parties.

PN167

Your Honour, I don't think I want to add anything more to what we've said. I think I began, and for completeness I perhaps should finish, I took your Honour to the Big W decision and the very different clause there. The clause in the Telstra case is equally different and again, in that case, the particular dispute settlement procedure specifically refers to the Commission and the word "determination" is used in the same sentence as a conferral of power on the Commission. It's quite different to 10.4 where determined is used in a different context and the Commission has to read into or imply into 10.4 the words "by the Commission". The absence of those words just cannot be inferred to elevate clause 10.4 to the same type of provision that was the subject of consideration in both the Telstra case and the Big W case. In our submission they are fundamentally different provisions.

PN168

Those are our submissions, your Honour.

PN169

THE VICE PRESIDENT: Mr Taylor.

PN170

MR TAYLOR: I think the issue has been largely joined in many areas, which I don't need to turn back to. I'm relying on the submissions I put earlier. In particular it appears in that respect that there's no dispute between the parties as to the approach that your Honour will take to the meaning of the word "determined" which, as I've submitted, primarily means to settle, decide a dispute or question by authoritative decision.

PN171

There are some matters, though, that I do wish to deal with. Can I start by dealing with the submission that was put at various levels and perhaps I didn't fully understand it, that clause 10 is in some way not a clause that's to be used when dealing with disputes arising under the agreement. At one point my friend said it would have to be read down. I think, strictly, what one has to do is read clause 10 as being a clause that applies in more than one situation. One of the situations that applies is where there is a dispute between the parties arising under the agreement as to the meaning of the agreement.

PN172

The fact that it's capable of also dealing with other disputes doesn't mean that it's not capable of dealing with that dispute and that is what the parties intended clause 10 would be for and that is clear from various things including the fact that clause 9 makes clear that there are certain disputes that it doesn't deal with, as your Honour has already highlighted, disputes that make general determinations are not to be dealt with under clause 9.

PN173

It's also made clear by the evidence. Both parties put on, in the end, by agreement, the form R28s that were used for both EBA6 and EBA7 and in all of the three forms, while there was a disagreement, in a sense, in the forms at least as to whether the clause was intended to empower the Commission to settle disputes, one thing that was consistent was that when asked to specify the clause which provides procedures for preventing and settling disputes between the employer and employees whose employment is subject to the agreement about matters arising under the agreement, clause 10 was said to be the relevant clause.

PN174

In the later form R28s the additional words are there to also refer the Commission to clause 9 so in the latest version of the form, used most recently, the words appear:

PN175

Clause 10, which is the dispute settlement procedure which applies to disputes not being a dispute within the scope of clause 9 which deals with grievance procedures.

PN176

There can be no doubt that clause 10 is intended and was intended to be, amongst other things, the clause to be used for the prevention and settlement of disputes about matters arising under the agreement. The fact that it's capable of dealing with other sorts of disputes is a point I think my friend relies on, but it can't be said clause 10 can be read as not being the clause about which the parties intended to deal with disputes about matters arising under the agreement. As I think your Honour correctly noted, whatever clause 9 does, whatever clause 9 is providing for, it is not providing for a case where there is a general determination and that's made clear by 9.6.1(b).

PN177

Whatever can be said about clause 9 and what can be done by agreement, what is the position here is that my client seeks such a general determination, if you might put it that way, seeks to have the Commission determine the dispute about this matter that arises as to the seniority of certain pilots. It seeks a general determination about that and Qantas hasn't agreed so there's no question of clause 9 being applicable. In any event, certainly nowhere in the written submissions of Qantas, and I don't fully understand it's been put orally either, is a suggestion that this particular dispute - whether generally there is power, this particular dispute is not one that can be done under clause 10 but it must be done under clause 9.

PN178

As I understand the debate that we've come before your Honour to have, the subject-matter or the nature of the particular dispute is not ultimately in question. The question is whether there is a power that this Commission has to arbitrate a dispute between the parties arising under the agreement pursuant to clause 10. In that sense, while my friend might well rely on clause 9 to say, as she does, look at the difference between the way in which the parties have drafted these clauses, the level of particularity versus the more general words of clause 10, draw inferences from that, that's a submission that can be made, although I've already responded as to why that doesn't have much force in this particular case.

PN179

It isn't the case, as I understand it, that there's any suggestion that your Honour is going to be asked to determine that the particular dispute in this case is one that can only be determined under clause 9 and not clause 10 because it is a clause 9 type dispute.

PN180

THE VICE PRESIDENT: I rather thought that it was the submission, that one doesn't get to clause 10 because - - -

PN181

MR TAYLOR: That wasn't something that we understood would be the case, your Honour.

PN182

THE VICE PRESIDENT: - - - there's a preamble to clause 10.

PN183

MS MCKENZIE: Sorry, your Honour, perhaps I can clarify that. We don't say that clause 10 can't be used for this dispute. I think we said we thought if the matter wanted to be determined, clause 9 is the only way in which the matter can be resolved in the way in which AIPA want the matter to be resolved but there is no reason why AIPA could not choose to take the matter to the Commission under clause 10, but the Commission's powers there is confined to conciliation. Qantas has not objected, and in our submissions I think we've referred to the fact that conciliation has taken place and we, I think, refer in that context to the MEAA v ABC case. AIPA could choose to take the matter through clause 10 to the Commission but if it did so, the Commission can't go beyond conciliation. If AIPA wants the matter settled and resolved or determined, then clause 9 is the only source of power for that matter ..... . I'm sorry if that was not clear, your Honour.

PN184

MR TAYLOR: I thank my friend for that and so I think, in essence, we're back to this debate, not that we can't use clause 10 but if clause 10 contains an arbitral power, then we can use clause 10 to deal with this dispute. If it doesn't my friend succeeds, but we don't need to be troubled as to whether ultimately clause 9, because of the way it's drafted, means that this is a dispute which can only be done by clause 9 and not by 10. I thank my friend for making that clear.

PN185

Can I deal with a couple of other points. My friend made reference to the words "in accordance with the Act" in 10.3 and suggested that that must mean words which carry with it the concept of exercising the Commission's jurisdiction under the statute as against any private arbitral jurisdiction. Those words, in my respectful submission, simply mean the process by which it is done and whereas section 170LW provides a power and that there is a process to bringing that dispute before the Commission, in accordance with the Workplace Relations Act, those words don't ultimately take the matter one way or the other.

PN186

If there's an arbitral power, then it's consistent with 10.3 that there is a statement to the effect that in accordance with the Workplace Relations Act that that will come before the Commission. In my respectful submission, those words don't take the argument any higher as to whether what's intended by the parties is simply to allow the Commission to exercise its statutory power as against an arbitral power.

PN187

In my respectful submission, the Commission can place some weight on the concession made by my friend that if the words said "until determined by the Commission" et cetera, that my case would be stronger. While the words "by the Commission" are not there, in the light of the clause it must include "by the Commission". One wouldn't read 10.4 as excluding the process wherein the Commission is determining the matter, whatever that word "determine" means. It must mean including determined by the Commission and so once that concession is made, in my respectful submission, that carries with it a significant conclusion, namely that we are talking here about determined, amongst other things, by a process wherein a matter comes before the Commission. If it is accepted, as I think it is, that the word "determined" is to be given the meanings which I have submitted it's to be given, then, with respect, that's really the end of the debate. That's where one gets to when one finds it means determined in an authoritative decision by the Commission.

PN188

I think they are the only matters, your Honour. I'm just checking my notes. There was one other minor point that I just wanted to note. Again, I don't think this is in issue. The '96 award was a consent award and in my respectful submission it's not surprising that in circumstances where the same clause is being used in agreements and awards wherein its not arbitrated, it's not surprising you're going to have the same clause and so to the extent to which some things are said to be gained in the fact that you find the same words in the award, in my submission, nothing much turns on the fact that the parties have used the same words in circumstances where at one point they're found in a consent award. Thank you.

PN189

THE VICE PRESIDENT: I thank counsel for their submissions. I'll reserve my decision in this matter. The Commission will now adjourn.

<ADJOURNED INDEFINITELY [11.52AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #I1 AGREED FACTS DOCUMENT PN4
EXHIBIT #I2 EXHIBIT BW2 PN5
EXHIBIT #I3 STATUTORY DECLARATION OF MS BUSSELL PN11
EXHIBIT #I4 STATUTORY DECLARATION OF ROBYN HOLT PN11
EXHIBIT #I5 OUTLINE OF SUBMISSIONS PN37
EXHIBIT #I6 EXTRACTS FROM MACQUARIE DICTIONARY PN51
EXHIBIT #Q1 AMENDED SUBMISSIONS PN97
EXHIBIT #Q2 EXTRACT FROM AWARD PN111