C2008/2340, Transcript of Proceedings [2008] AIRCTrans 256 (3 June 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 18526-2

VICE PRESIDENT LAWLER
SENIOR DEPUTY PRESIDENT RICHARDS
COMMISSIONER REDMOND

C2008/2340

s.120 - Appeal to Full Bench
Appeal by Cruz, Carlito
(C2008/2340)

SYDNEY

9.58AM, WEDNESDAY, 21 MAY 2008

PN1

MR R REITANO: I seek leave to appear for Mr Cruz with my learned junior, MR A JOSEPH.

PN2

MR S MEEHAN: I seek leave to appear for Australia Post with MS A PERIER.

PN3

VICE PRESIDENT LAWLER: Thank you, Mr Meehan. It's probably desirable to ask at the outset, Mr Meehan, there was no active opposition to an extension of time from Australia Post before the Senior Deputy President. Is there to be an active opposition to the appeal from Australia Post?

PN4

MR MEEHAN: No, your Honour, no.

PN5

VICE PRESIDENT LAWLER: All right. I think the position is still formally, Mr Reitano, that you need to persuade that the case for leave should be granted, in any event, notwithstanding the non opposition, unless Mr Meehan is proposing to consent leave to the appeal.

PN6

MR REITANO: I think that's right. Could I start before I come to what we say is the absurd decision of Senior Deputy President Cartwright, could I start by - I suppose I should have put that with respect. Could I start by saying this, that the purpose of the appeal - - -

PN7

VICE PRESIDENT LAWLER: At least you didn't reach into the Boston bag and go for with the very deepest respect.

PN8

MR REITANO: Yes. For the purpose of the appeal, and I'm assuming that the members of the Commission have had the opportunity of reading at least the material below but probably more than that, but for the purpose of what I want to say here one only needs to have the briefest appraisal of the facts to understand what I want to put to the Commission. If Mr Cruz on the day that he chose to file his unfair dismissal application went to the registry and walked up to the registry and was confronted by Senior Deputy President Cartwright as he sought to file his application and it was pointed out to him, I'm sorry, I can't accept that because there's a 21 day time limit in the legislation, you need to tell me why you're late, what would Mr Cruz has said?

PN9

I want to suggest it would have gone something like this, well you see, when I got sacked by Australia Post, my employer, I went straight to the union and told them about it and I showed them this letter that I had that said that I needed to be aware of rights that I had under the board of reference and the Workplace Relations Act, what do you think I should do about that, and the union told me that the board of reference procedure is an informal procedure that has the imprimatur and is certified by the Australian Industrial Relations Commission and it provides a much less complicated way of dealing with your grievance about your dismissal than the Workplace Relations Act, but if we go through that procedure and we don't get any joy from it, then you'll have rights under the Workplace Relations Act which normally speaking would require you to file your application within 21 days but there are a whole host of reasons why the union told me I shouldn't do that, not the least of which was that if we got to the point where we needed to activate those rights my employer, Australia Post, said firstly that they would not oppose me filing my application and secondly, that they would not be prejudiced by it. Moreover, my union told me it was inappropriate to escalate the dispute, to waste valuable money and resources by filing the application within the 21 day time limit. They told me that yes, you've got rights but there's nothing to worry about because Australia Post won't stay in the way of them.

PN10

Would Senior Deputy President Cartwright have been in a position then to say I reject your application, go away? It affronts common sense of ordinary tenets of fairness, justice and equity to suggest that he would have been entitled to do that and with the greatest of respect, that's precisely what he did in the decision that's under appeal.

PN11

VICE PRESIDENT LAWLER: Mr Reitano, I just want to make sure I haven't missed anything. Where in the submissions, and I note it was only submissions, Mr Joseph offered to call evidence but flagged that he had an understanding with his opponent that there would be no need to call evidence.

PN12

MR REITANO: Yes, yes.

PN13

VICE PRESIDENT LAWLER: But where in the submissions Mr Joseph made does he deal with the fact of Mr Cruz seeking advice from the union and having obtained advice from the union?

PN14

MR REITANO: He tells in the submissions.

PN15

VICE PRESIDENT LAWLER: Yes.

PN16

MR REITANO: My recollection of that is that it's in the transcript of the proceedings before - not in the written submission but in the transcript of the proceedings before the Senior Deputy President. If you'll just pardon me a moment I'll tell you precisely where it is. One of the references, I think there's another one, but PN165 line 2 for present purposes:

PN17

Mr Cruz was advised, your Honour, of the terms of the enterprise agreement that the first port of call ought to be the board of reference ...(reads)... an application should be made within 21 days of the board of reference.

PN18

VICE PRESIDENT LAWLER: Thank you.

PN19

MR REITANO: I'm getting all sorts of assistance. It's also on page 20 apparently. I think it starts at about PN51 -

PN20

And I mean one can't walk away from the terms of the letter, your Honour, but can I say that in the circumstances of the agreement between the ...(reads)... the advice to immediately go within the 14 days to the board of reference.

PN21

And then further down -

PN22

And then consistent with the understanding between the parties, await the decision of the board of reference rather than, I assume, rather ...(reads)... to the Commission. Just going back to Senior Deputy President Acton's decision in that case, she said -

PN23

And so on. Then I hope finally, in paragraph 5 of the written submission on page 32 of the appeal book - - -

PN24

VICE PRESIDENT LAWLER: Sorry, Mr Reitano - - -

PN25

MR REITANO: We can provide an additional appeal book if there's an immediate problem.

PN26

VICE PRESIDENT LAWLER: Thank you.

PN27

MR REITANO: And I am indebted to Mr Meehan. On page 32 is the written submission or the commencement of the written submissions of Mr Joseph and at paragraph 5 it is said:

PN28

Mr Cruz relied on the advice of his representatives who in turn were justified in advising Mr Cruz in accordance with the custom and practice that had arisen from the agreement with Australia Post in relation to such matters.

PN29

VICE PRESIDENT LAWLER: Yes, thank you, Mr Reitano.

PN30

MR REITANO: What I said by way of opening was to illustrate the proposition that I want to advance and it's this, would anyone confronted with those submissions objectively view regard either what Mr Cruz was doing or the advice that he'd been given by his union as to be anything other than acceptable. I suppose if someone wanted to engage in some gratuitous criticism of the CEPU and pick up other circumstances that were totally irrelevant to the matter that was before the Senior Deputy President, you might have ignored the objective circumstance in which the application was filed and what we say on appeal is precisely that, that where his Honour failed was in respect of a misunderstanding of the relevance of an objective assessment of what was an acceptable circumstance.

PN31

It was quite irrelevant to determining whether Mr Cruz's explanation for why the claim was late that in some other case, unrelated to the circumstances of this one, in which Post actively opposed the application, actively claimed prejudice and in which the Commission, for reasons best known to the Full Bench of the Commission in that case, criticised the CEPU for advice in those circumstances. It had nothing to do with the issue here because the advice given here was no-one is going to oppose it, no-one is going to stand in your way, and moreover, this is a sensible way to proceed rather than upping the ante, escalating as I put to the Commission, and wasting resources.

PN32

What difference was it going to make to anyone whether Mr Cruz filed it within the 21 days or later? The only anyone that it could make a difference to was them, Australia Post, and they were saying we won't oppose it. So it was absolutely critical to an objective assessment of whether there was an acceptable explanation for the delay to give great weight, in fact predominant weight to the fact that they weren't objecting to anything and they weren't claim any prejudice in the circumstances. In the written submissions that we filed we've picked up on something that's slightly different but perhaps indicates why Senior Deputy President Cartwright failed to apply any objective criteria to the assessment as to whether there was an acceptable explanation for delay and that is primarily his Honour's failure to give any weight or failure or accord to what the principle is that comes from Brodie-Hanns in respect of acceptable explanation for the delay.

PN33

It is not merely defining or providing some legal analysis of the words "acceptable explanation for the delay". Brodie-Hanns speaks of acceptable explanation for the delay which makes it inequitable to so extend.

PN34

VICE PRESIDENT LAWLER: Makes it equitable.

PN35

MR REITANO: Sorry, makes it equitable to so extend. And here there was nothing - - -

PN36

VICE PRESIDENT LAWLER: Mr Reitano, the High Court in one of this triumvirate of immigration cases Go, Wu or Ishitu, criticised the Federal Court for taking a sort of fine textural analysis to decisions of the Refugee Review Tribunal and indicated in substance that the decisions need to be given a beneficial reading and the mere fact that the Tribunal hadn't sort of used the magic phrase it didn't allow one to, by some sort of process of ..... an analysis, to conclude that the Tribunal had not directed itself to the correct test.

PN37

Now, true it is that Senior Deputy President Cartwright didn't use the magic words "equitable to extend", but he clearly addressed Brodie-Hanns. He refers to
Mr Joseph's submissions by reference to Brodie-Hanns and he clearly deals with each of the criteria listed in Brodie-Hanns. Isn't latching upon the failure to refer to equitable so extend engaging in that sort of ..... analysis type of error detection that the High Court has criticised in whichever one of those three cases it is, Go, Wu or Ishitsu.

PN38

MR REITANO: I think, with respect, your Honour, as I get older I realise that taking such technical points are probably going to elicit such a response from judicial officers. The point is not merely that his Honour omitted to use those words. When one looks at the analysis, which I'll come to in a moment that his Honour undertook, there is - - -

PN39

VICE PRESIDENT LAWLER: You would say that as a matter of substance one needs to infer that he didn't in fact address himself to the equitability or otherwise of extend - - -

PN40

MR REITANO: Indeed. You don't need to worry about inferring. He doesn't give any consideration to any factor or any reason that relates to any factor that one could possibly put in the grab bag of equity or equitable considerations. Let me be blunt about it, what he said was, you've been told once, you've been told twice by other Full Benches not to do this and you still did it and that's not an acceptable explanation. He doesn't give any considerations to anything else. He didn't give any consideration to weighing up the appropriateness or fairness or equity of, for example, going to the board of reference first, or any consideration about questions of Mr Cruz wasting his resources filing applications, or wasting the resources of this Commission filing other applications.

PN41

He doesn't give any consideration as to whether a person in Mr Cruz's position, relying as he did on the advice, and I might say with the upmost respect to Senior Deputy President Acton and others and Senior Deputy President Cartwright, the very correct advice of his representative organisation that he should wait to see what happens in the board of reference proceedings before he does anything else as to whether equity demanded whatever view you take of the advice that someone who is a postal officer was following those more knowledgeable than him and was entitled to do so. None of that weighs in the equation. None of it weighs in the equation at all.

PN42

It's not merely a question of he didn't use those words. He didn't apply that principle. He applied something else, effectively there's not an acceptable explanation of delay that makes it convenient for the Commission to use its power to refuse to extend time as a clearing house of the Commission's lists. There's nothing else there. Could I immediately go - - -

PN43

VICE PRESIDENT LAWLER: If those arguments are correct, how does one then explain the decision of the Full Bench in Smart? I appreciate you say there's a distinction between the circumstances here and the circumstances in Smart because in Queensland there's no agreement of the sort that exists between Post and the CEPU in New South Wales and that's clearly a material point of distinction, but putting aside that difference how does one explain the decision in Smart, because everything that you have just put about the correctness of the advice in terms of what's equitable would have been equally applicable in Smart's case?

PN44

MR REITANO: (a), I didn't argue Smart, (b), I didn't decide Smart, (c), Smart has nothing to do with this case and I know your Honour put that qualification on it. The answer is that those cases, like Norman before it, failed to have any
regard - - -

PN45

VICE PRESIDENT LAWLER: I thought you were going to say Smart should be distinguished on the basis that in that case the Full Bench proceeded upon the basis that no advice had been sought by the employee, nor given by the union.

PN46

MR REITANO: I wasn't aware of that distinction. I apologise, I wasn't aware of that distinction. What I was going to say is that there seemed to be a series of cases that start with Norman where the Full Bench fails to give any consideration to what the purpose of the extension of time provision is. It has nothing to do with criticising unions for the advice they give or don't give. It's not about that. It's a nice intellectual exercise that people have engaged in about what Australia Post chooses to put in its termination letters and whether it should be advising people about 21 day time limits or the existence of any time limits or whether they should go to union. But it has nothing to do with the basis upon which a person seeks to extend time, which has a whole lot to do with the types of considerations that the High Court in a whole series of cases, McHugh J in particular in Brisbane South Regional, have had regard to.

PN47

In the unfair dismissal context the predominant factor that needs to be taken into account in cases like this one, Norman, I think in Smart, is that through the board of reference procedure a person is actively putting Australia Post on notice I am challenging this dismissal, I am challenging it from day one through the board of reference, you are on notice that I will do whatever I can. In this case, in a context where you know that you won't oppose an extension of time, so this is the strongest possible case. In respect of the others where the board of reference goes first, it has nothing to do with the question what's in letters or what advice the CEPU gives. The fact is at a time when a person is actively taking steps to challenge the dismissal and puts on their claim in respect of that challenge within a reasonable time of the conclusion of the board of reference process, what possibly could be said in fairness or in equity against granting that's visited home to advice that the union gives and the answer to that is nothing.

PN48

Sure, Australia Post turn up and say look, the board of reference finished, 14 days later we didn't think they were going to do anything about it, they hadn't filed an unfair dismissal application and we employed another whiz bang postal officer to take his position, there's our prejudice and that's something that no doubt the Commission would take into account in the mix. That has nothing to do with any advice that the union might give to the individual and there might be a whole range of other circumstances. But to criticise the union in a case like this one or generally for saying go through the board of reference before you come to an unfair dismissal claim case achieves nothing and it's no sensible or equitable or fair thing to do to visit home to the applicant some view that the Commission has that advice in those circumstances is wrong, or advice that you should wait for the board of reference is wrong.

PN49

We don't want to put the board of reference in the rubbish bin. We see it as valuable and we like to use it and we see it as something that is important to us and whatever the Commission might think, we don't think that the unfair dismissal jurisdiction should come in over the top and gobble it up. We say that we should exhaust that procedure first and they do too because it's in the certified agreement.

PN50

VICE PRESIDENT LAWLER: The implication of the earlier Full Benches is that the two processes should run in tandem and in the nature of things the board of review process, board of reference process will be concluded before anything of substance happens in the unfair dismissal proceeding.

PN51

MR REITANO: And why, I ask rhetorically, what's the logic of that? Where do we get with that? What more do we achieve - - -

PN52

VICE PRESIDENT LAWLER: So do you want us to say the earlier Full Benches are wrong?

PN53

MR REITANO: You don't need to. We invite you to but you don't need to because we say that Senior Deputy President Cartwright is wrong anyway.

PN54

VICE PRESIDENT LAWLER: I must say I'm troubled by the approaches of the single members, put aside the Full Bench decision of Smart for a moment, that seems to elevate - or seems to be visiting the error, if it be an error, of the union on quoting some ..... employees who are typically unsophisticated people with no legal knowledge, no knowledge of the Act.

PN55

MR REITANO: And they rely on their - - -

PN56

VICE PRESIDENT LAWLER: And who in the ordinary nature of things will rely upon those who they perceive to be expert.

PN57

MR REITANO: And rely on - - -

PN58

VICE PRESIDENT LAWLER: In other words, there's a tension between the approach adopted in the single member decisions and the developed jurisprudence in the Commission on representative error.

PN59

MR REITANO: Yes. The difficulty is that the earlier decisions, and I think particularly Norman is the one that I have got in mind, the earlier decisions presume error, without any consideration of what the time limit is about, why it's in the legislation, what's it's juridical basis is.

PN60

VICE PRESIDENT LAWLER: Well, it's there to provide a measure of certainty to employers about finality in relation to issues arising out of termination. It's not about assisting the Commission in managing its case load.

PN61

MR REITANO: Well, certainly in this case, that's right. But if you take the Norman type analysis where you wait for the board of reference and there's a 21 day time limit after that, if you assumed someone filed on the 22nd day it's different in nature to if someone applied on the - sorry, I withdraw that. The 21 day time limit if someone applied on the 35th day, which is 14 days for the board of reference and assuming that the board of reference finished at the earliest possible opportunity on the 14th day and then had the time limit of 21 days, it's a different scenario to if you assume that someone filed immediately after the board of reference concluded, that is on the 15th day.

PN62

But the Commission would need to consider that and need to consider the advice that the individual was given. Unfortunately 14 days and 15 days takes it within the 21 day time limit so that's not the best analysis. But all I'm saying is if someone filed shortly after the board of reference has concluded matters it is different in nature to if you filed three weeks after the board of reference is finished, and that would be to be considered in any given case. You can't simply say that because the union advised people to go through that process first that that's erroneous advice. With respect, that in itself is in error. It probably doesn't matter in this case. I mean here it is abundantly clear that they said time won't run until the board - they, Australia Post, won't run until the board of reference is over and we won't oppose an application within 21 days of that time limit.

PN63

We come to the Commission and Senior Deputy President Cartwright says this is a good way to clear the list and I'm not going to extend time, despite the fact - - -

PN64

VICE PRESIDENT LAWLER: Where did he say this is a good way to clear the list?

PN65

MR REITANO: Well, that's the inference that's to be drawn from his decision. There is no other basis. There's noting else that's put forward about why it's not an acceptable explanation for the delay. He doesn't in any way explain what it is that he's upholding in saying that there is no acceptable explanation.

PN66

VICE PRESIDENT LAWLER: That's a bit tough, isn't it?

PN67

MR REITANO: I think I'm kind, with respect.

PN68

VICE PRESIDENT LAWLER: Does he not refer to the earlier cases and Smart in particular, to point out that it is a relevant factor that the employee is individually put on notice about the existence of Workplace Relations Act remedies and the time limits and that that direct notification to the employee is a relevant factor in determining whether or not there's an acceptable explanation of delay?

PN69

MR REITANO: Well, I can come to the decision shortly but I don't think that he says that at all. What he says is, the CEPU has been told before.

PN70

SENIOR DEPUTY PRESIDENT RICHARDS: I think the point is that he hasn't conjured up this argument - - -

PN71

MR REITANO: I'm sorry, your Honour?

PN72

SENIOR DEPUTY PRESIDENT RICHARDS: He hasn't conjured up this argument out of the ether. I mean he's drawing, and you may find you have an inherent disagreement with the line of thinking that's evolved or in the process of evolution, but he's drawn on prior decisions to ascertain a position and I don't think you can reasonably say that it arises from some prejudiced view or otherwise.

PN73

MR REITANO: I don't need to say it arises from some prejudiced view. It arises from some failure to understand those prior decisions, certainly, because they are in different circumstances from this case.

PN74

SENIOR DEPUTY PRESIDENT RICHARDS: Well, that's a different line of argument.

PN75

MR REITANO: Yes, that's right.

PN76

SENIOR DEPUTY PRESIDENT RICHARDS: It's probably best if we just turn to the substance of the case itself.

PN77

MR REITANO: Could I come to his Honour's decision then immediately and the decision starts at 35 and I think nowhere in the decision does it say this but I think I can safely say that Mr Cruz had about nine or 10 years employment with Australia Post. That's not referred to, I don't think, in the decision as a postal officer.

PN78

VICE PRESIDENT LAWLER: Is it referred to in the submissions?

PN79

MR REITANO: It's referred to somewhere. In the application is where I took it from. In paragraph 3 his Honour conveniently sets out the letter that obtains pre evidence in this case and the two other cases where Australia Post is writing to
Mr Cruz:

PN80

If you consider the penalty imposed in relation to the agreed code of ethics to be harsh, unjust or unreasonable and wish that decision to be reviewed ...(reads)... with the Grievance Appeals Unit, Human Resources Department -

PN81

There's an address -

PN82

within 14 calendar days of the date of this letter by 12 November 2007. Could I just pause there and ask the Commission and I don't know that I can make too much of this point because it doesn't arise before Senior Deputy President Cartwright but I do need to point out to the Full Bench while it is considering the matter that you will note that you, Mr Cruz, are told you have 14 days and the precise time at which that expires is 12 November and that's in respect to the Board of Reference. You are given very definite advice by your employer about the time limit that applies and when it expires in respect of the Board of Reference. If we go over the page it can be seen what is said about other things.

PN83

"Should you wish to consider your rights under the Workplace Relations Act in respect to alternative legal remedies," that's not strictly right, they're concurrent as I understand it "including the time limits that apply you will need to seek external advice." But why don't they tell him? Why don't they say that runs within 21 days and that finishes on 19 November.

PN84

But apparently this letter in this form obtains the imprimatur of the Senior Deputy President. Its on page 2 of the Appeal Book is the reference to how long he was employed for. I see, and it picks up your Honour's point earlier, and I think item 5, he is of a non English speaking background as well. So this is a particular case where he is probably reliant heavily on what his union tells him. You then find in the balance of the paragraph the CEPU applied on 30 October for a Board of Reference to review the termination.

PN85

Could I note the day after the letter of termination, so I don't know that you can get it any closer. I suppose they could have filed it on the day, but the day after they - - -

PN86

VICE PRESIDENT LAWLER: It's an immediate contesting of the decision.

PN87

MR REITANO: Straight away. On 3 December - so the Board of Reference took a month and three days. They supported the termination, and Cruz was notified on 5 December, and lodged his application 15 days later on 20 December. And then his Honour refers to the fact that Mr Joseph appeared and he summarised the sum of the submissions that were made, one is the understanding with Post that it wouldn't object, another is that a reference to the advice that the CEPU gave to Mr Cruz again. And at the last sentence of paragraph 4 Mr Joseph submitted that in these circumstances Mr Cruz, following the CEPUs advice, provided an acceptable explanation of the delay in lodging the application with the Commission, and he went on to address the other matters.

PN88

Could I then just skip over - well, there's then a reference to the two cases, Norman and Smart. And then could I just skip over to paragraph 6 because there is something rather important that his Honour observed that fails to do anything with later on, and that's in about the second sentence of paragraph 6. In Norman that was not done. Senior Deputy President Acton thought in the circumstances of that case that it was reasonable for Mr Norman to rely and act on the advice of his union to appeal. She then took account of the action Mr Norman took apart from leaving the matter in the hands of his representative and went on to say:

PN89

I think it is reasonable for an employee to expect their union will correctly advise them in respect of termination of employment matters. The CEPU should thus take action to ensure that it does not repeat the incorrect advice it gave to Mr Norman.

PN90

And that's obviously where I've departed company in respect of what I say is the correct or incorrect advice with the earlier Full Bench. His Honour then refers to Smart. Interestingly in the paragraph about Smart in the second sentence, by then Australia Post had apparently acted on the comments by the two Senior Deputy Presidents for the Commission and noted that Ms Smart like Mr Cruz was notified in the termination letter:

PN91

If you wish to consider your rights under the Workplace Relations Act in respect to alternative legal remedies including the time limits that apply you will need to seek external advice.

PN92

But the Commissioner rejected the submission that it was an acceptable explanation for the delay for Ms Smart to seek a Board of Reference review and rely on the CEPUs failure to advise her of the need to lodge a concurrent application with the Commission. In doing so we refer to Senior Deputy President Acton's comments:

PN93

Should take action to ensure that it does not repeat the incorrect advice it gave to Mr Norman.

PN94

VICE PRESIDENT LAWLER: This has all the flavour of a punishment of
Mr Cruz for a perceived sin of the union, perceived error on the part of the union.

PN95

MR REITANO: Perceived error on behalf of the union, yes, and like Ms Smart apparently was punished.

PN96

VICE PRESIDENT LAWLER: But you're not going to invite us to find that Smart's wrong?

PN97

MR REITANO: I've said that we invite the Commission to do so, but it is not necessary in order to succeed.

PN98

VICE PRESIDENT LAWLER: Because this case is distinguishable on the facts.

PN99

MR REITANO: Yes.

PN100

VICE PRESIDENT LAWLER: Just before you depart from Smart, I've got to say I get a sense in reading Smart that the Full Bench was not engaged in the task of giving a ringing unqualified endorsement to the decision below. It has that flavour where the Bench would have come to the view if it had been deciding itself would have come to a different view from that in House v R especially since that wasn't sufficient. And the remarks that the Full Bench made:

PN101

Some of the Commissioner's remarks might indicate that in his view any failure on the CEPUs part to properly advise the appellant of her rights and the applicable time limits should weigh against the appellant itself. Because the situation is unclear it is unnecessary to record our view.

PN102

In other words one of the options they left open is that there was in fact no advice given at all, neither sought nor given, so it wasn't a representative error case of the ordinary sort. Senior Deputy President Acton noted in Norman:

PN103

It is reasonable for employees to expect their union to advise them correctly with respect to termination of employment matters. A failure by a union to do so would not normally weigh against the employee.

PN104

MR REITANO: Yes.

PN105

VICE PRESIDENT LAWLER: And I draw from that again that it looks like Smart was a case where there was no advice given, because the Full Bench is saying it shouldn't weigh against the employee normally.

PN106

MR REITANO: The only difficulty I have with what your Honour says in respect of Smart being a case where no advice was given is what I think - - -

PN107

VICE PRESIDENT LAWLER: And then they draw emphasis to the failure to seek advice in the following sentence.

PN108

MR REITANO: Yes.

PN109

VICE PRESIDENT LAWLER: And again they only make sense if they're approaching it on the basis that this was a no advice case and a failure to seek, no advice sought, no advice given.

PN110

MR REITANO: I think that actually what I was going to say is contrary to what your Honour says, but it's consistent with it from Commissioner Bacon's decision as well, that the passage that's quoted in paragraph 8 of Senior Deputy President Cartwright's decision, the Commissioner says in the last sentence, it is the part which I think - almost the last sentence:

PN111

To the extent that the applicant relies on representative error there's an express direction.

PN112

Although it does go on and say:

PN113

Although it's self evident the CEPU failed.

PN114

So that's not consistent with.

PN115

VICE PRESIDENT LAWLER: And it seems reasonably fair that the Full Bench in Smart was not at all comfortable with that approach. They were seeking to distance themselves from it, not to endorse that approach.

PN116

MR REITANO: Certainly the sentence "A failure by a union to do so would not normally weigh against the employee" sounds like it's an enormous distance away from that approach.

PN117

VICE PRESIDENT LAWLER: Yes, Mr Reitano.

PN118

MR REITANO: Indeed both that sentence and the next sentence:

PN119

However in circumstances where the employee is on notice that a time limit is applicable, failure to seek advice on what time limits might apply will weigh against the finding that there was an acceptable reason for the delay.

PN120

And that too doesn't visit home anything to the representative organisation. That's talking about the applicant's own agitation, and it's consistent with - - -

PN121

VICE PRESIDENT LAWLER: And it only weighs against, it's not determinative.

PN122

MR REITANO: No, that's right. So from paragraph 8, 9 and 10, or in paragraph 8, 9 and 10 his Honour refers to Smart, and I don't need to, because of where we are. I need then to go to paragraph 11, and it's paragraph 11 where his Honour considers, or paragraphs 11 and 12 where his Honour considers the question of acceptable explanation for the delay:

PN123

In the case before the CEPU has similarly failed to advise Mr Cruz correctly in circumstances where he was on notice from the termination letter that time limits apply to remedies under the Act.

PN124

There's no suggestion Mr Cruz sought advice on what time limits might apply. I only note what I already noted about the fact that English is his second language. I don't by any means suggest that he didn't understand it, but I do note that English is his second language. The CEPUs advice was to go to the Board of Reference and if unsuccessful apply to the AIRC. Following such advice would almost necessarily result in Mr Cruz's application being out of time. I don't know why it's almost necessarily so, and the Board of Reference dealt with it within 14 days given that it was filed on the first day. He would have had another seven days to be in time. So I don't know where almost necessarily comes from, nor do I know what his Honour's understanding of how quickly the Board of Reference is pursued, nor do I know what evidence his Honour had before him in that respect.

PN125

The CEPU has been on notice since Senior Deputy President Acton's decision in August 2005, the advice is wrong. Well, not quite, because the advice, even if wrong - and I've said what I want to say about whether it is or not - but the advice even if wrong was wrong in completely different circumstances, in particular in circumstances where they, Australia Post, were saying we won't oppose an extension of time in New South Wales. So to the extent that the CEPU was on notice about anything it was in completely different circumstances. It was in circumstances where Australia Post said we won't turn up in the Commission and oppose anything.

PN126

VICE PRESIDENT LAWLER: I must say it's not clear to me what the advice of the CEPU actually was that's been referred to as wrong. It might have been - - -

PN127

MR REITANO: Well, respect to everyone, I think what he said to be wrong is to await the outcome of the Board of Reference and then worry about an unfair dismissal case. I'm putting that very generally but I think that's what Norman says is wrong. I don't know why it's wrong. I understand that someone says that's wrong, I don't know why it's wrong.

PN128

VICE PRESIDENT LAWLER: It's incomplete as distinct from wrong because it fails to alert the applicant to the risk that a Commission may not be satisfied there's an acceptable for delay in due course.

PN129

MR REITANO: Well, depending on a whole number of assumptions, but if you accept the - - -

PN130

VICE PRESIDENT LAWLER: The advice is not wrong if in a given set of circumstances it's clear that the time should be extended.

PN131

MR REITANO: Yes. The circumstances that I - well, the question that I pose, but I can well imagine the answer, in what circumstances would the advice be wrong? Well, you don't know because the circumstances are emerging. So the advice may prove to be wrong at the time that it's given but you don't know. But how could it be wrong in circumstances where they say we won't oppose it? And how could it be inequitable? Sorry, how could it be - yes, how could it be anything but equitable in the circumstances where they say we won't oppose it? They therefore can't turn up and claim prejudice because anything they say about prejudice would be in the direction of opposing it.

PN132

So you've got two things. You've got them telling us that they won't oppose it, and secondly, you've got no prejudice. How could the advice be anything other than utterly correct, because you might - - -

PN133

VICE PRESIDENT LAWLER: Because a type of agreement between parties can't bind the Commission in the exercise of a statutory discretion, it can't bind the Commission in the exercise of a statutory discretion.

PN134

MR REITANO: I understand what your Honour says.

PN135

VICE PRESIDENT LAWLER: That is the theoretical position. The practical position no doubt is that it's hard to construct a case where it would be other than equitable to extend time where the employer has entered such an agreement and pursuant to the agreement doesn't oppose an extension. It specifically says we are not suffering any prejudice.

PN136

MR REITANO: What else would be relevant, one might rhetorically ask, assuming the Commission - - -

PN137

VICE PRESIDENT LAWLER: Just out of curiosity, why don't you just lodge in the Commission simultaneously with the commencement of the Board of Reference, and if the matter's listed just request an adjournment pending the completion of the Board process?

PN138

MR REITANO: Some members would refuse an adjournment. I think there's a range of - - -

PN139

VICE PRESIDENT LAWLER: I think my question's been answered. It wouldn't be me but I think there would be members who might.

PN140

MR REITANO: I can certainly say some things about my own experience in that regard. But there are other practical considerations. Where you have an informal process which is designed to minimise the cost and inconvenience to everyone, what is the imperative to do that? It rather asks the wrong question in my submission. Why would you do that rather than why would you not do it is the more probing question in my respectful submission. Why waste everyone's time? Why waste even the typist's time of typing out the application? Why go through all that when you've got a Board of Reference procedure that might say two days later it's all over, we've resolved it in favour of the employee, there's nothing to complain about?

PN141

What is the logic, what is the commonsense that commends the process of putting in both at the same time? His Honour goes on, and understanding that the employee would not object to late lodgement does not change that, presumably that is a reference to not changing the fact that the advice is wrong. And I've said what I already want to say about that. Nor is the employer's objection or lack of objection determinative of the question to be decided by the Commission on established principles whether to vary the period for lodging the application.

PN142

I think that deals with something that your Honour the Vice President said. Of course the parties can't bind the Commission in the way that it would exercise its discretion. But the difficulty is one can't imagine a circumstance where the employer turns up and says we don't object, there's no prejudice, we're not going to say anything - like I do here - that stands in the way of you filing it. The employee says I was advised by my union that this was the best way to go, and there's some commonsense to the member.

PN143

One can't imagine a circumstance where it would not be the most weighty consideration that the employer was not objecting. The Commission's dealing with an extension of time application under section 643(14) and 647, is not dependent on whether or not the employer objects to late lodgement. Now, that's all his Honour says. He then goes on and says - that's all he says. He then goes on and says, well, I don't think there's an acceptable explanation for the delay. Well, why not? And then goes back to the question that I think I posed, a complete failure to consider whether it was equitable to extend, whether there was an explanation. But there's also - - -

PN144

VICE PRESIDENT LAWLER: Is equitable in that context a synonym for fair? This is not a word used by the statute, it's a word used by Marshall J in Brodie-Hanns.

PN145

MR REITANO: Brodie-Hanns. From its context I don't think it can take any other meaning. But what is it?

PN146

VICE PRESIDENT LAWLER: Well, presumably it means fair in a fair go all round sense.

PN147

MR REITANO: Fair in some objective sense, which is fair go all round. But what is it? What is it that his Honour says made it unacceptable? And reading paragraph 11 one is not enlightened. It refers to - - -

PN148

VICE PRESIDENT LAWLER: Apparently the evil is the advice.

PN149

MR REITANO: Well, that's the end of the matter. I may as well sit down, we win the appeal because that's visiting, solely visiting the sins. Even if that's right that's solely visiting the sins. It's unacceptable because my representative gave me some advice that was wrong. That's the only thing that his Honour has put in the way. And that can't be right. We know from authority that that can't be right. There's got to be more than really that.

PN150

VICE PRESIDENT LAWLER: But what he's done though is - what it appears his Honour has done is at paragraph 11 he's looked at Smart and Smart has said that where an employee is singularly advised of the application of time limits and seeks no advice in respect of that particular matter then it might weigh against the finding. And subsequently in paragraph 11, despite accepting that Mr Cruz sought advice from the CEPU he makes the statement that there is no suggestion Mr Cruz sought advice on what time limits might apply, and he said the lack of evidence to support the type of conclusion contemplated by Smart, and therein belies the weight of the matter for his Honour.

PN151

MR REITANO: There's an error immediately apparent. There's no suggestion Mr Cruz sought advice on what time limits might apply.

PN152

VICE PRESIDENT LAWLER: Yes. How can one draw the inference when
we - - -

PN153

SENIOR DEPUTY PRESIDENT RICHARDS: We know there was advice given of the sort you made reference to previously, but none of that evidence supports an inference of time limits being in play.

PN154

VICE PRESIDENT LAWLER: Well, I would say how can one draw an inference one way or the other as to what the content of the advice is about? In fact the natural inference I would have thought is, here's my termination letter, what do you say about them apples?

PN155

MR REITANO: Well, that's where I started.

PN156

VICE PRESIDENT LAWLER: But that's what Mr Cruz would have done when he went to the union, I've been terminated, here's the termination letter, what do I do?

PN157

MR REITANO: And that's what he did. But there's no evidence either way as to whether he - and nor, in my respectful submission, I'm not sure that his Honour did. What his Honour relies on is the fact that the advice was wrong.

PN158

VICE PRESIDENT LAWLER: Mr Reitano, I think we've reached a consensus up here that we don't need to hear any further from you on the question of error. Can I just ask you about the competency of the appeal? You don't want to add anything further to what you've said in response to the consideration of the authority in KCH? You've pointed to the Full Bench decisions in Mappas and Leighton.

PN159

MR REITANO: There is a matter that I was alerted to this morning that I just want to briefly address, visit only in respect of saying that my submissions in respect of that question might have been misconceived to the extent that I put something that I only worked out this morning.

PN160

VICE PRESIDENT LAWLER: Well, in your primary submission you were talking about Youssef, and that's the whole jurisdictional error issue and you have Brand on the list of authorities which is a case that's concerned with 685(3) talks about decisions for decisions affected by jurisdictional error is no decision at all, see ..... in the High Court.

PN161

MR REITANO: Yes, I understand that.

PN162

VICE PRESIDENT LAWLER: Therefore 685(3) doesn't apply. But if the Mappas Leighton view is correct as distinct from the KCH view, KCH being the later case and not referring to the earlier cases, then you don't need to go to the whole jurisdictional error Youssef Brand argument.

PN163

MR REITANO: That's right.

PN164

VICE PRESIDENT LAWLER: Is there anything more you want to say on that?

PN165

MR REITANO: No.

PN166

VICE PRESIDENT LAWLER: Mr Meehan, I take it there's no submission you want to make? I mean, it may be that there are submissions you want to make that are still compatible with your non opposition to the extension of time.

PN167

MR MEEHAN: No, your Honour. We are not here to contradict.

PN168

VICE PRESIDENT LAWLER: Are you here as a .....

PN169

MR MEEHAN: No I can't - .....

PN170

VICE PRESIDENT LAWLER: Thank you. Look, we might just - - -

PN171

MR MEEHAN: I had specific instructions not to make any submission in relation to the competency of the appeal and to contradict what's been advanced.

PN172

VICE PRESIDENT LAWLER: Thank you. We'll just adjourn for a few moments.

<SHORT ADJOURNMENT [10.52AM]
<RESUMED [10.58AM]

PN173

VICE PRESIDENT LAWLER: In this matter the Commission grants leave to appeal, allows the appeal and quashes the decision to the extent there was an order of the Senior Deputy President, and we'll publish reasons for that decision in due course.

PN174

MR REITANO: There was one matter that arises from that, and that is that the Full Commission will then need to consider whether either to remit the matter or deal with the question itself.

PN175

VICE PRESIDENT LAWLER: I'm sorry. And on the re-hearing we extend time and we'll make an order to that effect.

PN176

MR REITANO: If it please, your Honour.

<ADJOURNED INDEFINITELY [10.59AM]