C2008/2773, Transcript of Proceedings [2008] AIRCTrans 553 (24 September 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 19131-1, 19132-1, 19133-1

SENIOR DEPUTY PRESIDENT LACY

C2008/2773, C2008/2774, C2008/2775

s.170LW - prereform Act - Appl’n for settlement of dispute (certified agreement)
Association of Professional Engineers, Scientists and Managers, Australia, The
and
Telstra Corporation Limited
(C2008/2773)
(C2008/2774)
(C2008/2775)

MELBOURNE

10.04AM, SATURDAY, 13 SEPTEMBER 2008

Continued from 8/9/2008

PN581

THE SENIOR DEPUTY PRESIDENT: Are there any changes in appearances? I have received from the ACTU on behalf of the unions an outline of argument and an outline dated 12 September and an outline of submissions dated 11 September. Were there any other materials provided by the ACTU?

PN582

MR J FETTER: No, your Honour.

EXHIBIT #ACTU2 - OUTLINE OF SUBMISSIONS DATED 11/09/08
EXHIBIT #ACTU3 - OUTLINE OF ARGUMENT DATED 12/09/08

PN583

THE SENIOR DEPUTY PRESIDENT: I have received from Telstra, Telstra's submissions, argument interim order dated 12 September and outline of argument, stay of decision dated 12 September and that has an attachment of the decision of the President Justice Guidice dated 12 September 2008, AIRC 729. Statement of Darren Fewster, dated 12 September 2008, and a number of blank pages attached DF1 to DF6. Was there anything else Mr Wood?

PN584

MR S WOOD: Your Honour, the argument on the interim order which is dated
12 September 2008 should have had attached to it all the documents referred to as 6 of the 7 dot points in paragraph 2. The first one is a statement of Mr Fewster dated 12 September 2008. It appears your Honour hasn't been given the six exhibits, do you see that?

PN585

THE SENIOR DEPUTY PRESIDENT: No, I've just received blank pages, DF1 to DF6.

PN586

MR WOOD: I will hand up the exhibits, your Honour, these were provided to
Mr Moore who appeared for the applicants yesterday before His Honour Justice Guidice. One of those exhibits, your Honour, exhibit DF2, is an affidavit from the federal court from Mr Fewster. You have got that affidavit, your Honour, as exhibit DF2, or you should have it, and I will hand up the exhibits for that affidavit. Does that make sense your Honour?

PN587

THE SENIOR DEPUTY PRESIDENT: Are they the exhibits to Mr Fewster's affidavit in the federal court?

PN588

MR WOOD: Yes, your Honour, which is exhibit DF2 to the statement which we provided.

PN589

THE SENIOR DEPUTY PRESIDENT: I appear to have those - - -

PN590

MR WOOD: DF2 should just be the affidavit of himself which is quite lengthy.

PN591

THE SENIOR DEPUTY PRESIDENT: I will take those in any event.

PN592

MR WOOD: Yes, your Honour.

PN593

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Wood.

PN594

MR WOOD: The next dot point at paragraph 2 of our submissions on the argument for the interim orders, the decision of Justice Guidice today which I think you - - -

PN595

THE SENIOR DEPUTY PRESIDENT: I received that, yes.

PN596

MR WOOD: The third one is the outline of argument of Telstra dated
12 September 2008 and I think you observed you have got that your Honour.

PN597

THE SENIOR DEPUTY PRESIDENT: Yes.

PN598

MR WOOD: Then the fourth dot point is the notice of appeal dated
11 September 2008, that's all your Honour's decision of 8 September 2008.

PN599

THE SENIOR DEPUTY PRESIDENT: Yes.

PN600

MR WOOD: I don't think you have got that your Honour.

PN601

THE SENIOR DEPUTY PRESIDENT: I don't appear to have a copy of that.

PN602

MR WOOD: I will hand that up, together with the appeal book, your Honour, which is the sixth dot point under paragraph 2.

PN603

THE SENIOR DEPUTY PRESIDENT: Yes.

PN604

MR WOOD: Your Honour, the fifth dot point at paragraph 2 is the transcript from the stay hearing, that should say, "Before Guidice J," instead of "For Guidice J," we didn't get that until quite late your Honour.

PN605

THE SENIOR DEPUTY PRESIDENT: No, I understand.

PN606

MR WOOD: I will hand that up too and provide a copy.

PN607

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN608

MR WOOD: Lastly, your Honour, we provided a list of cases - - -

PN609

THE SENIOR DEPUTY PRESIDENT: I do have that, I didn't mention that before but I do have a copy of that.

PN610

MR WOOD: And your Honour we will hand up the actual cases themselves with one extra one which is the original decision of Lawler VP in relation to the appeal which is referred to at tab 6 of those listed cases.

PN611

THE SENIOR DEPUTY PRESIDENT: Yes.

PN612

MR WOOD: I hand a copy of those cases to Mr Fetter.

PN613

THE SENIOR DEPUTY PRESIDENT: Yes.

PN614

MR WOOD: Those are all the documents that we wish to rely on, your Honour. The statement of Mr Fewster, dated 12 September 2008 - - -

PN615

THE SENIOR DEPUTY PRESIDENT: Is it intended to call Mr Fewster?

PN616

MR WOOD: No, your Honour, we just called him for the relevant background material. There is some uncontroversial background material as we understand things, that was the position of the applicants and the interveners but then there is some uncontested material. But can I deal with - just indicate to your Honour that that statement was received in evidence on the appeal, that is on the application for the stay. That obviously doesn't mean that you have to receive it your Honour.

PN617

THE SENIOR DEPUTY PRESIDENT: No, I understand.

PN618

MR WOOD: But I will just indicate that it was received and marked as TA1 on the appeal. None of the other material that we have provided, your Honour, none of the rest of it is in the nature of evidence.

PN619

THE SENIOR DEPUTY PRESIDENT: Yes. Sorry?

PN620

MR WOOD: Sorry, one last thing your Honour, just as an aide memoir as it were, this is a document we also handed up to Guidice J yesterday. This explains the relevant parts of the first affidavit of Mr Fewster that we intend to rely upon, it just sets out at least in relation to the first affidavit uncontested facts in relation to the second affidavit I mentioned and some of those facts will obviously need to be tested by the applicant and the intervener, but for the purposes of today your Honour we have made two relevant concessions in relation to the disputes which were notified on 28 August and we confirmed it again before Guidice J yesterday. They were firstly that the dispute over clause 3.2 of the relevant enterprise agreement constituted by the failure to commence discussions is a dispute which at this stage we say the Commission can assume exists, and secondly the Commission can assume, again for the purposes of today, that that dispute has percolated up through sub-clauses 1 to 5 of clause 26 of the dispute settlement procedure.

PN621

THE SENIOR DEPUTY PRESIDENT: You concede - well for the purposes of today - that it's a dispute over the application of the agreement?

PN622

MR WOOD: Yes, your Honour, we make three concessions, your Honour. I thought that that followed from point 1, but yes, to be absolutely clear yes we do your Honour. I understand my learned friend wishes to speak and I don't want
to - - -

PN623

MR FETTER: No, no, we don't have a copy of those.

PN624

MR WOOD: Sorry, your Honour, the six exhibits referred to in the Fewster statement, Mr Fetter tells me the applicants and the intervener don't have a copy of. We gave them all to Mr Moore yesterday who appeared with Mr Fetter before Guidice J. We don't make any criticism of Mr Fetter. We will endeavor to provide him now with those exhibits. Your Honour, that just deals with the documentation. Before my learned friend gets on his feet I want to say something about the document which has been marked as ACTU3 and the extent to which it alters the characterization of dispute but you might want to hear from Mr Fetter before you hear me on this your Honour.

PN625

THE SENIOR DEPUTY PRESIDENT: I understand - I saw that as well, I don't know where we will go at this stage, I need to hear what Mr Fetter says about that.

PN626

MR WOOD: Yes, your Honour.

PN627

THE SENIOR DEPUTY PRESIDENT: Mr Fetter, what do you say about the material that has been provided? First of all let me mark the outline of argument.

EXHIBIT #(TELSTRA 7) - TELSTRA SUBMISSIONS IN RELAITON TO INTERIM ORDER DATED 12/09/2008
EXHIBIT #(TELSTRA 8) - TELSTRA OUTLINE OF ARGUMENTS STAY APLICATION DATED 12/09/2008

PN628

THE SENIOR DEPUTY PRESIDENT: What do you say about the other material Mr Fetter?

PN629

MR FETTER: Your Honour, just in relation to the statement of Mr Fewster that was tendered before the President and marked as TA1, yesterday I have just noticed that was an unsigned statement, I will just see if that's still the case.

PN630

MR WOOD: I undertake - I will check, your Honour, but my understanding is that Mr Fewster has checked it and would, if required to do, swear up to it, but I might just confirm that your Honour.

PN631

THE SENIOR DEPUTY PRESIDENT: Yes. I have an unsigned copy as well.

PN632

MR WOOD: Yes, your Honour, it's unsigned. Yes, your Honour, I am instructed that he would swear up to that statement but for one typographical error in paragraph 27, it says, "In addition - " - sorry, your Honour.

PN633

THE SENIOR DEPUTY PRESIDENT: Yes.

PN634

MR WOOD: "In addition Telstra business units have conducted management briefings for their staff on the two proposed agreements," and there should be, "and future agreements more generally," there's a missing "and" there, but apart form that typographical error it's my instructions that Mr Fewster will swear to this statement your Honour.

PN635

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN636

MR FETTER: Your Honour, apart from that specific comment we just submit that the Commission should treat all the material put in by Telstra in the normal fashion, and that we would seek to the extent that it becomes relevant on any particular point to be able to cross-examine on it and deal with it in the normal fashion. But that is just to foreshadow further orders or hearings that you might direct for the …..

PN637

THE SENIOR DEPUTY PRESIDENT: You reserve your right to cross-examine in the event that the matter goes further than today.

PN638

MR FETTER: Yes, your Honour.

EXHIBIT #(TELSTRA 9) - STATEMETN OF DARREN FEWSTER WITH 6 EXHIBITS

PN639

THE SENIOR DEPUTY PRESIDENT: I don't need to mark the decision of Guidice J. I have marked the outline of argument, it's unnecessary for me I think to mark the notice of appeal isn't it?

PN640

MR WOOD: No, your Honour, I just wanted to make sure you had all the documents if your Honour please.

PN641

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Yes, Mr Fetter? Are there any other preliminary matters from anybody?

PN642

MR WOOD: From us, your Honour, there is the issue of ACTU3.

PN643

THE SENIOR DEPUTY PRESIDENT: Yes, but that we're going to deal with when I hear from the ACTU. Yes, Mr Walton?

PN644

MR WALTON: Yes, your Honour.

PN645

THE SENIOR DEPUTY PRESIDENT: You are going to share the load are you?

PN646

MR WALTON: Yes, your Honour, particularly being a weekend.

PN647

THE SENIOR DEPUTY PRESIDENT: We have put Mr Wood at a disadvantage because he is here by himself today.

PN648

MR WALTON: Your Honour, in fact we were debating whether we should all agree to lose our ties today but I'm told Mr Wood normally wears it on a weekend anyway. Seriously, your Honour, we do very much appreciate the Commission meeting today, and the staff, I do want to send our appreciation for giving up time on a weekend.

PN649

THE SENIOR DEPUTY PRESIDENT: I endorse those sentiments, particularly for the staff, Mr Walton, including the reporting service.

PN650

MR WALTON: Your Honour, just before Mr Fetter takes us through our arguments regarding your powers and the orders we seek, I thought I might spend only around five minutes your Honour just updating you on the context in which this hearing is happening today. Given that that context is very important for the decisions the Commission is making I would hope to only spend five minutes and believe that is important given the broad dispute settling powers that the Commission has.

PN651

THE SENIOR DEPUTY PRESIDENT: Yes.

PN652

MR WOOD: Your Honour, might I be heard on that process?

PN653

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Wood.

PN654

MR WOOD: Your Honour, we obviously don't object to the applicants or the intervener putting any material that they see fit before you. There were orders to that effect made on Wednesday, I think about four o'clock, and those orders were relevantly for the parties to file in the Commission and serve on the respondent any documents and submissions on which they seek to rely by close of business Thursday 11 September 2008. We only received one document at that time, the document marked as ACTU2. We were subject to a similar obligation under direction 2 and we filed the materials your Honour has just marked as Telstra 7, 8 and 9. Late on Friday 12 September we received ACTU3. At no stage did the applicants or intervener indicate to us that they were intending to call any evidence. At no stage did they indicate to us that they were putting in statements from anyone, and we should be given the same rights that Mr Fetter has been given in relation to the statement of Mr Fewster which has been marked T9, that is we should have been given a copy of whatever Mr Walton wishes to say, to give us the opportunity to seek instructions on it, to examine whether we wish to contest it in accordance with your Honour's directions and to make any statements that we thought necessary in response, including asking your Honour for leave to cross-examine on whatever was put.

PN655

THE SENIOR DEPUTY PRESIDENT: Assuming - well it might be made as a statement or an introduction or something, but it might not necessarily be evidence.

PN656

MR WOOD: It's up to you, your Honour, it might not necessarily be evidence but we are concerned, having heard for the first time this suggestion that it might be an attempt to lead evidence, evidence that your Honour might take into account and evidence in relation to which we haven't had an opportunity to challenge. If that's not the position, if it's something along the lines of thanking the Commission and thanking the staff, well of course we have got no objection, but I was rather concerned by the reference to the word "context" which I rather understood to mean the evidential context that is going to be attempted to be put before you and some attempt to persuade you to make the orders that are sought.

PN657

THE SENIOR DEPUTY PRESIDENT: I will hear what Mr Walton has to say and you can reserve a right to take instructions on any response that you might want to make.

PN658

MR WOOD: Yes, your Honour, thank you your Honour.

PN659

MR WALTON: Thank you, your Honour. Since I - - -

PN660

THE SENIOR DEPUTY PRESIDENT: This is not intended as evidence I take it Mr Walton?

PN661

MR WALTON: No, your Honour, it's context. The Commission for many, many years has tried to get to the heart of matters and I hope this might just help create a context of what we will be putting today, and also the general dispute settling processes of this Commission for many years I think could be aided by just understanding the context. Your Honour, since I was last standing before you, providing a detailed outline of the context of the dispute I just wanted to quickly update you with a few things that have happened. Firstly, your Honour, the Deputy Prime Minister has forwarded a letter to the ACTU which has been put around the workforce, and I would like to just hand that to you at the moment your Honour.

PN662

MR WOOD: I object to that your Honour on the same basis that I made before.

PN663

THE SENIOR DEPUTY PRESIDENT: What is the relevance of it to what I have to decide Mr Walton?

PN664

MR WALTON: Certainly your Honour. This Commission has powers under the Act to hear information as it sees fit, discretion on what to hear and how to hear it your Honour and we say that the context in which this matter is happening today and the judgments we are seeking to make are in part affected by the importance for this Commission to settle this dispute. What I am about to put to you provides a context in which the employees on the ground are reacting and hearing information, and I would suggest, your Honour, that context is leading to an environment where a very serious dispute is before this Commission.

PN665

THE SENIOR DEPUTY PRESIDENT: But the difficulty is that what the minister has to say, no doubt of great importance but hardly relevant I think to what I have to decide, Mr Walton, so I think at this stage we will leave that as it is. Why wasn't it filed if you wish to deal with it?

PN666

MR WALTON: The other parties are well aware of the letter, your Honour, well aware.

PN667

THE SENIOR DEPUTY PRESIDENT: I don't think I will receive it at this stage.

PN668

MR WALTON: All right. The second matter that you are aware of, your Honour, that has happened since we were last before you is the federal court hearing. Telstra sought interlocutory relief and that matter was heard on Thursday and you may be aware, your Honour, the injunction was not provided.

PN669

THE SENIOR DEPUTY PRESIDENT: I think Mr Fewster's statement refers to that.

PN670

MR WALTON: Yes.

PN671

THE SENIOR DEPUTY PRESIDENT: Have the reasons for decision been published yet in that case?

PN672

MR WALTON: Not that I'm aware of, your Honour.

PN673

THE SENIOR DEPUTY PRESIDENT: All right.

PN674

MR WALTON: Thirdly, your Honour, in that hearing there was - and unfortunately I don't have transcript from that hearing, but there were two important matters put on transcript during that hearing and I do have an extract from the journalist at the time that's quoted from that hearing and that is that firstly that the agreements that are being voted on on Monday and Tuesday, your Honour, Telstra has now put on transcript that these are the first agreements to be rolled out, but it is the hope of Telstra that they will put agreements like this to their remaining employees. I can forward you an extract from that.

PN675

THE SENIOR DEPUTY PRESIDENT: I think Mr Fewster's affidavit actually refers to that.

PN676

MR WALTON: Secondly Mr Fewster's affidavit also provides that Telstra employees listen to the unions and rely on the advice of the union to put that in on transcript. Yet, your Honour, we are here today in a scenario where, as I have put before you previously, some 70 per cent of the workforce who are union members at the moment do not have a right to bargain collectively. The other thing, your Honour, that has happened since your decision is to try and settle this dispute we sought the assistance of the Commission following your decision to conciliate and your Honour you may have a copy before you but a copy of Commissioner Foggo's statement.

PN677

THE SENIOR DEPUTY PRESIDENT: Yes, I have.

PN678

MR WALTON: You do have that, and that although Telstra did provide representatives on this occasion, they declined to participate in conciliation. We would suggest, your Honour, that we just want to note again that after your decision we attempted to try to resolve this significant matter for conciliation and yet again Telstra has chosen not to seek that assistance of the Commission. The other context, your Honour, is that I took you last time to the various exhibits and we now have a statement from Telstra to the employees that I can provide to you, your Honour, that in the event the offer is voted down on Monday or Tuesday that the company will reconsider it's position, however it is likely that no further agreements will be considered for 12 months. In other words a 12 months pay freeze if the employees choose to exercise their rights on Monday and Tuesday.

PN679

THE SENIOR DEPUTY PRESIDENT: Again I think there is some material before me in relation to that, isn't there?

PN680

MR WALTON: There is, your Honour, I put forward to you in exhibits I can take you to that we last time asserted this is what Telstra was proposing to do, we now have evidence of statements to their employees to that effect. Finally, your Honour, I am putting that context because I just wanted to state before we get into the argy bargy of the legal powers that there is a very, very serious dispute before this Commission. The other thing that has been widely circulated since we were last together was the pay rises of the chief executive and other senior managers since we were last before the Commission, including increases of Sol Trujillo of 14 per cent, Greg Winn 96 per cent, et cetera. In that context, your Honour, plus the other information I previously provided, it would be fair to say, your Honour, that employees in many areas of Telstra are reaching the stage of absolute frustration and I would say to your Honour that we are facing a hum dinger of a dispute which could lead to serious industrial action. Industrial action that would be supported by the entire union movement, your Honour, and I just wanted to say the context in which we are trying to hear the legal powers today is a very important context given the historic role of this Commission in trying to avoid and resolve disputes.

PN681

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Walton. Mr Fetter.

PN682

MR FETTER: Thank you.

PN683

THE SENIOR DEPUTY PRESIDENT: Firstly, Mr Fetter, what do you say about the issues that you have raised in exhibit ACTU3?

PN684

MR FETTER: Yes, your Honour, that was provided to the Commission and to the respondent last night in order to foreshadow the structure of my argument today. It was intended primarily as an aid to the participants in proceedings today given that it is a Saturday and we want to proceed quite quickly so that everybody can get out of here and enjoy the sunshine. To the extent that it contains matters that weren't raised in the outline of submissions provided the day before, your Honour, I say two things. The first is that as Mr Walton has just outlined, the dispute between the parties is something of a moving feast and in this week in particular there has been constant movement in terms of the parties' positions and tactics, and so in that context it is no surprise that the dispute changes slightly from time to time, although I think that Mr Wood has essentially conceded that the nub of the dispute, which is a disagreement about the application of clause 3.2 of the agreement, is still in place and that the parties differ about the source of the Commission's jurisdiction to proceed. That matter your Honour has ruled upon and in my submissions I will get to how we say that will be treated.

PN685

THE SENIOR DEPUTY PRESIDENT: But I think the point that Mr Wood raises is that in paragraph 4 of your jurisdictional argument you appear to be raising a new jurisdictional point or a new point in relation of the jurisdiction of the Commission to deal with the matter. I gather that, Mr Wood, is the part you're referring to is it?

PN686

MR WOOD: Yes, your Honour, that and two other parts but that's the first part.

PN687

THE SENIOR DEPUTY PRESIDENT: Yes.

PN688

MR FETTER: Perhaps, your Honour, the best way to approach it is for me to explain why we submit that the Commission is entitled to proceed on the basis or take into account the submissions in paragraph 4 and then if Mr Wood wishes to respond he can.

PN689

THE SENIOR DEPUTY PRESIDENT: Yes.

PN690

MR WOOD: Can I just clarify what my objection is your Honour first?

PN691

THE SENIOR DEPUTY PRESIDENT: Yes.

PN692

MR WOOD: Your Honour, we don't have any problem with any submissions being put in in the form of ACTU3 because that will obviously help focus the debate. The issue is really twofold, it's the nature of the dispute over the application of the agreement and the orders that are sought, and if I can deal with the first one first. The original dispute was an autumnal dispute which was constituted by the failure to commence discussions on the eve of this case, properly, not in good faith in April, four months before this agreement ran out, that was the dispute that was notified and that is the dispute your Honour has dealt with and we have made certain concessions in relation to that dispute, three which you have identified this morning.

PN693

THE SENIOR DEPUTY PRESIDENT: Yes.

PN694

MR WOOD: There was a second dispute which is also notified about clause 27, that is a consultation clause. That dispute, it was accepted yesterday and I think it was clear enough on 8 September before you, your Honour, that dispute was not pressed. So as at the time these submissions were required there was only one dispute over the application of the agreement, that is the autumnal dispute constituted by the alleged breach of clause 3.2. These submissions received last night added a new dispute, a spring dispute which is a dispute which has flowered overnight, and it is a dispute concerned with a breach of clause 26.6 itself, and it is that dispute - - -

PN695

THE SENIOR DEPUTY PRESIDENT: Yes, well that's what's tied up in paragraph 4 as I see it.

PN696

MR WOOD: Exactly, your Honour, we object to the Commission hearing that dispute without my learned friend going through the appropriate process of amending his application and those sorts of things. But related to that, your Honour, there are two additional orders which are sought in these submissions which have been marked ACTU3. Those additional orders which are sought are sought in paragraph 12 and paragraph 16. Your Honour, we object to - - -

PN697

THE SENIOR DEPUTY PRESIDENT: Sorry, in the outline of argument or in the - - -

PN698

MR WOOD: In the outline of argument. In the outline of argument it actually includes two additional orders. Paragraph 22 says,

PN699

We therefore respectively press application for the orders in the terms set out in paragraph 11 of the applicant's previous submissions.

PN700

Which are the orders we are here fighting about. Then at paragraphs 12 and 17, there are two additional orders which the applicant and the interveners ask your Honour to make. It is up to you, your Honour, about how you deal with it but at least there should be an amendment of the application and an amendment of the orders sought, and from our position we can't see in the circumstances of this case which has been brought in relation to the April dispute why there is any urgency in relation to this Spring dispute.

PN701

THE SENIOR DEPUTY PRESIDENT: Just in relation to the first point about the proposition that there is a dispute over clause 26.6. I didn't particularly see that as a dispute over the application of clause 26.6, but rather a source of jurisdiction by which the Commission could make orders under the legislation.

PN702

MR WOOD: If that is - - -

PN703

THE SENIOR DEPUTY PRESIDENT: Again, that's as I saw it, but Mr Fetter might tell me I'm wrong.

PN704

MR WOOD: Yes, if that's the position then it's just in the nature of the submissions about the way in which the jurisdiction is said to be invoked in relation to the autumnal dispute. We don't have an issue with that, your Honour.

PN705

THE SENIOR DEPUTY PRESIDENT: If that's the case.

PN706

MR WOOD: If that's the case. Then our only issue is in relation to these two additional orders which are sought and in relation to which we haven't had any opportunity, having received the request to make those orders at about six o'clock last night, to deal with.

PN707

THE SENIOR DEPUTY PRESIDENT: Again they are dependent on the identification of some power in which those orders can be made, aren't they?

PN708

MR WOOD: Yes, they are, your Honour. It's obviously a matter for you, your Honour, as to how you deal with it but as we understood it those orders seemed to relate back to this September dispute which flowered last night. They seemed to relate to some suggestion that there is a dispute over the application of clause 26.6, they don't seem to me to be orders that can be justified by reference to the autumnal dispute.

PN709

THE SENIOR DEPUTY PRESIDENT: Let's see where we go first of all with the identification of any powers or jurisdiction to make any orders and then if we find ourselves in a position where orders can be made we can deal with that either by way of adjournment if you need more time to consider that.

PN710

MR WOOD: Very well.

PN711

THE SENIOR DEPUTY PRESIDENT: Do you see that as some sort of a limitation on your capacity to - - -

PN712

MR WOOD: No, your Honour, that seems a convenient way to proceed given where we are in the time frame.

PN713

THE SENIOR DEPUTY PRESIDENT: Yes. Yes, Mr Fetter. First of all, am I right in the way I have construed paragraph 4 of your submissions Mr Fetter?

PN714

MR FETTER: Yes, your Honour, we say it's not a new dispute being on the 26th but is an additional - an alternative argument as to why the Commission may have jurisdiction and I will go to that your Honour. But can I also say, Mr Wood has suggested that there are actually two disputes under clause 3.2 of the agreement, one referred to as the April or autumnal dispute and the other being a spring dispute. We don't understand that position has ever been put. The application put into the Commission in August on the 28th raises a breach of clause 3.2 of the agreement and it's been the union's constant submission that that dispute is live and I thought so.

PN715

THE SENIOR DEPUTY PRESIDENT: No, I don't think that's in dispute, what Mr Wood is saying though, the nature of the orders that are sought in paragraphs 12 and 17 are not orders that have been sought prior to this matter - when this matter has been dealt with in the past.

PN716

MR FETTER: Yes, your Honour, and just before Mr Wood got to his feet I was attempting to explain that first of all this week the dispute has been moving and it became obvious to us on Friday that we needed to seek additional relief, although I note that in our view the relief that we are seeking is of the same character as the other orders that have been sought from the beginning of this dispute which are orders essentially seeking to ensure that the parties are able to participate in conciliation in good faith. It became obvious to us, your Honour, in relation to Telstra instituting proceedings in the federal court, in relation to Telstra not participating in conciliation before Commissioner Foggo that in our submission they were not prepared to engage in good faith with the processes of the Commission and that stronger orders were required beyond the original two orders I believe we asked for. So your Honour in terms of whether there is any prejudice to the respondents in having these two additional orders put in, we say that given they are in the nature of the pre-existing orders and they are to shore up the substantive orders that we are seeking, the respondent can't be put out by that, but as your Honour suggested, if they need additional time to consider their position we wouldn't oppose that.

PN717

THE SENIOR DEPUTY PRESIDENT: Yes, let's see first of all if we get to that point.

PN718

MR FETTER: Yes, your Honour. If I take it there are no further objections to me taking the Commission through ACTU3 quite briefly, because I would seek that we adopt the position put in ACTU2 and ACTU3 and don't need to make detailed reference to the argument there.

PN719

THE SENIOR DEPUTY PRESIDENT: I have read the submissions and I am grateful to both parties for the submissions they provided. Can I just clarify this with you, do you agree that 26.6 is the gateway to mediation or conciliation when a dispute has reached the stage of 26.5, 26.6 by the way which has been referred to incorrectly in my previous decisions, 26.5 on occasions I think. But in any event, 26.6, do you agree that that is the gateway to conciliation and/or mediation once the dispute has reached that stage?

PN720

MR FETTER: With the greatest of respect, your Honour, there appears to be some confusion about the grounds on which your Honour made his decision on Tuesday and that is obviously the ground on which Telstra has appealed that decision. But as we understood your Honour your finding is essentially to adopt the submissions that we made to you on Monday which is that as a default the parties are expected and contemplated within clause 26 that they will in first instance follow the procedure step by step laid out in clause 26 of the agreement and that in the general course of things you would expect that once the negotiations and discussions had proceeded to the point at 26.5 that if it was still not resolved it would go on to clause 26.6. Perhaps then it is a good time for me to make some submissions about this alternative proposition that we are putting.

PN721

THE SENIOR DEPUTY PRESIDENT: No, we will come to that, but at this stage I just want to clarify, do you agree that at 26.6 there is a necessity for not only for an agreement for a mediator or a conciliator but that the parties must agree to the matter being submitted to mediation.

PN722

MR FETTER: Yes, your Honour. They are the words referred to in the clause, subject to what we say in paragraph 4 about the proper construction of
clause 26.6.

PN723

THE SENIOR DEPUTY PRESIDENT: Yes, but if you get to that point and there is no agreement, and leaving aside 26.8 at this point in time, and I am dealing basically with your clause in paragraph 4, in the absence of some provision related to s.170LW then you don't get to open the gate under 26.6 unless the other party or parties agrees to conciliation or mediation, isn't that right?

PN724

MR FETTER: Yes, your Honour, but subject to essentially implied controls that we are submitting should apply to the exercise of a parties' right to consent or withhold consent.

PN725

THE SENIOR DEPUTY PRESIDENT: That is the point I'm trying to get to, where do I find the substantive powers in the legislation to give the Commission a role in the event that there is a withholding of or an agreement to opening the gate, if you like?

PN726

MR FETTER: Your Honour, I think the parties are agreed that in this case the power must ultimately flow through section 170LW.

PN727

THE SENIOR DEPUTY PRESIDENT: But section 170LW in itself doesn't provide a power to the Commission to deal with disputes. It provides a power for the Commission to approve the inclusion in an agreement of a dispute settlement provision that allows the Commission a role.

PN728

MR FETTER: I believe that is a reference to section 170LT of the pre-reform Act, your Honour, section 170LW provides the power upon the Commission - - -

PN729

THE SENIOR DEPUTY PRESIDENT: Just a moment please. Sorry, Mr Fetter, I have left my other piece of legislation upstairs.

PN730

MR WOOD: You can have my copy your Honour. Can Mr Gardner approach the Bench your Honour.

PN731

THE SENIOR DEPUTY PRESIDENT: Thank you, my Associate may grab that on the way back. Yes, you are taking me to section 170LT you said?

PN732

MR FETTER: Yes, your Honour, section 170LT(8) provides a pre-condition for the Commission exercising it's power to certify an agreement under the pre-reform Act and it provides that the agreement submitted must include procedures for preventing and settling disputes between the employer and the employees whose employment will be subject to the agreement about matters arising under the agreement. In the private arbitration case the High Court has confirmed that the subject of the Commission's power then to deal with disputes is the terms of the agreements made between the parties, and section 170LW confers the relevant power upon the Commission to accept the jurisdiction conferred essentially by private contract between the parties, but that the private arbitration case makes it clear that the Commission's powers under 26.6 in this event is limited by the terms of referral of powers to the Commission and also the fact that the Commission can't act in a way that is inconsistent with it's statutory powers.

PN733

THE SENIOR DEPUTY PRESIDENT: That seems to me to be the pathway to 26.8, but then when you get to 26.8 where do you find in the legislation a substantive power - sorry, before you get to 26.8 are there any provisions in the pre-reform Act that are related to section 170LW that would give the Commission any substantive power in circumstances where there is a breakdown at 26.6, in other words where you can't get agreement at 26.6?

PN734

MR FETTER: Well your Honour we think that there is, and that was the submission that we were making to you on Monday and which it appears from paragraph 18 of your decision on Tuesday that you have accepted, and we say that it is essentially the same route as the proposition we are putting under clause 4
but - - -

PN735

THE SENIOR DEPUTY PRESIDENT: Paragraph 4.

PN736

MR FETTER: Paragraph 4. Just to make it very clear about how we say the Commission has jurisdiction, we say that under the private conferral of powers contained in clause 26, we say that there are two instances in which power has been conferred upon the Commission under the clause which the Commission is empowered to accept by virtue of section 170LW. The respondents only accept one potential conferral of power in clause 26.6 but we have submitted on Monday that clause 26.8A of the agreement, properly construed as a matter of the ordinary construction of a private agreement between two parties, is that it does in invoking the right of a party to proceed under the Act also by implication confer upon the Commission the jurisdiction and the private power to accept the jurisdiction agreed by the parties.

PN737

THE SENIOR DEPUTY PRESIDENT: I am with you on that point, but where we are at now is where do I find it in any power, any substantive power in the legislation?

PN738

MR FETTER: Then, your Honour, I can refer you to our outline of submissions in paragraphs 13 to 24 where we - - -

PN739

THE SENIOR DEPUTY PRESIDENT: That is - - -

PN740

MR FETTER: That's ACTU2. I just would suggest your Honour note those paragraphs but I will talk you through them if you like.

PN741

THE SENIOR DEPUTY PRESIDENT: Which paragraph is that? Paragraph 24?

PN742

MR FETTER: Paragraphs 13 to 24.

PN743

THE SENIOR DEPUTY PRESIDENT: Yes.

PN744

MR FETTER: We say that essentially 26.8A properly construed empowers the Commission to exercise it's powers under the Workplace Relations Act. We had submitted it captured the pre-reform Act but you have ruled against us your Honour and we accept your ruling. However, by a curious feature of the current version of the Workplace Relations Act it actually has the effect of preserving the operation of all the provisions we submit of the pre-reform Act dealing with disputes under certified agreements. So your Honour we say despite your ruling we actually come back to our original submission which is that the current Act essentially enlivens the former powers that the Commission had under part 6B of the pre-Workchoices legislation.

PN745

THE SENIOR DEPUTY PRESIDENT: Where though in the current legislation do I find that?

PN746

MR FETTER: Your Honour, if you turn to the back of the document, schedule 7.

PN747

THE SENIOR DEPUTY PRESIDENT: Yes, I've got schedule 7.

PN748

MR FETTER: Clause 2, sub-section 1E specifically provides that section 170LW of the Act continues to apply despite it's repeal in relation to everybody else under the Workchoices legislation. So we say that section 170LW is a provision of the current Act despite the repeals.

PN749

THE SENIOR DEPUTY PRESIDENT: But all that does is give me power to approve a provision in an agreement that prevents and settles disputes.

PN750

MR FETTER: With respect, your Honour, that's not right, that's 170LT which has been deleted now because the Commission does not have power to approve certified agreements as they have been removed from the system.

PN751

THE SENIOR DEPUTY PRESIDENT: Yes, I understand that, but if you go to section 170LW it's express terms confine the powers of the Commission to certifying an agreement - sorry, to approving procedures in a certified agreement that empower the Commission to do either of those two things set out there.

PN752

MR FETTER: You are referring to section 170LW?

PN753

THE SENIOR DEPUTY PRESIDENT: I am, yes.

PN754

MR FETTER: That's right, the section is directed to the powers that the Commission can exercise, but the High Court have made clear in the private arbitration case that in exercising these private powers of dispute resolution the Commission will exercise the powers conferred by the parties. So they may be narrower than the traditional powers that the Commission has and they may be broader.

PN755

THE SENIOR DEPUTY PRESIDENT: How does the preservation of section 170LW provide the Commission with any power to make orders in respect of the dispute at large at the present time?

PN756

MR FETTER: Yes, your Honour, we submit that the effect of section 170LW of the pre-reform Act as set out by the High Court is that the Commission is limited under that provision to making orders, directions and carrying out other functions that are contemplated by the parties. So we say it's a simple matter of the construction of the clause to see what functions the parties did wish to confer on the Commission and it was our submission that the reference to the Workplace Relations Act 1996 at large was a reference to the usual or normal range of the Commission's powers in dealing with disputes under pre-reform agreements. Those powers, we submit, are preserved specifically by schedule 7 of the current Act, and your Honour the reference then to the general powers of the Commission is intended to be a reference to section 111, for example, and it is our
submission - - -

PN757

THE SENIOR DEPUTY PRESIDENT: But how do I get to that through the preserved provisions under section 2 of part 2 of schedule 7?

PN758

MR FETTER: Yes, your Honour, because clause 2, sub-section 1R also preserves any other provision of the pre-reform Act relating to the operation of the other provisions specifically mentioned. So, for instance, your Honour, if you had a pre-reform certified agreement that contained a clause that simply provided that in the event of a dispute the Commission could exercise it's powers, we submit that that would be a reference to the Commission's usual powers under
section 111 and some other provisions. We concede that potentially in the exercise of the powers the Commission is not making orders that take effect under the head provision itself, so an order to resolve disputes under that agreement might not be an order under section 111, but technically ought to be regarded as an order under the Commission's powers under section 170LW or perhaps an order under a combination of those powers.

PN759

But it would be clear, in our submission, that in a clause that provided that the Commission could settle disputes using it's normal powers, that there would be no bar to the Commission using the full range of powers that it has in the usual course of things. For example, the Commission could set meeting dates and could exercise the range of functions that you see under section 111 of the Act. The parties of course in an agreement can choose to limit the powers of the Commission, the parties can choose to say the Commission will settle disputes using it's normal powers but not using section 111(1)(g), or the Commission can settle disputes but will not have any discretion to sit at a place of it's choosing.

PN760

It is our submission that the parties are not chosen to limit the normal powers of the Commission that we say by proper construction clause 26.8 confers on the Commission. So in essence, your Honour, we are saying that we understand your decision on Tuesday to have accepted our proposition that as a matter of orthodox construction of a private agreement, 26.8A is to be read as if it said, "The parties may exercise their rights under the Workplace Relations Act and the Commission may exercise it's usual powers," and so by - - -

PN761

THE SENIOR DEPUTY PRESIDENT: All right, so you say that takes me to the current Act as a result of my decision.

PN762

MR FETTER: That's right.

PN763

THE SENIOR DEPUTY PRESIDENT: The current Act as within schedule 7 which preserves certain of the provisions of the pre-reform Act including
section 170LW.

PN764

MR FETTER: Yes, your Honour.

PN765

THE SENIOR DEPUTY PRESIDENT: Associated with section 170LW or related to section 170LW is 111.

PN766

MR FETTER: Yes.

PN767

THE SENIOR DEPUTY PRESIDENT: But where in section 111 is there any substantive power for the Commission to deal with a dispute over the application of agreement?

PN768

MR FETTER: As a matter of statutory interpretation if you turn to section 111(1)(a) of the pre-reform Act.

PN769

THE SENIOR DEPUTY PRESIDENT: Yes.

PN770

MR FETTER: It provides that the Commission may do any of the things mentioned in sub-section 1 in relation to an industrial dispute arising under this Act and - - -

PN771

THE SENIOR DEPUTY PRESIDENT: But I'm not dealing with an industrial dispute at large, I'm dealing with a dispute over the application for agreement.

PN772

MR FETTER: That's right, your Honour, and if you turn to section 111(2) on the following page. There is a curious clarification that the reference to a dispute is actually a reference to any other proceeding before Commission, whether under this Act, whether under the RAO schedule or otherwise, and that would encompass the private conferral of power. So, your Honour, that is the link between a section 170LW application which gives rise to a proceeding which the parties have intended are then to link into the Commission's powers under section 111. There is authority for that, your Honour, in the Telstra case which I can take your Honour to.

PN773

THE SENIOR DEPUTY PRESIDENT: Yes.

PN774

MR FETTER: Your Honour, this was a similar sort of application by one of the applicants here today, the application for a dispute settlement procedure under section 170LW of the pre-reform Act.

PN775

THE SENIOR DEPUTY PRESIDENT: Sorry, an application for what? A dispute settlement - in respect of a dispute settlement procedure you mean under the - - -

PN776

MR FETTER: Well, your Honour, it's our submission that the process is conducted by the Commission in accordance with the terms of any certified agreement as permitted by section 170LW. So there was a specific clause in the agreement there which was in fact relevantly identical, I believe, to the clause before you in this dispute, your Honour, and you can find that set out at paragraph 9 of the decision and you can see that there is a stepped process and under clause 7.6 the parties may refer it to an agreed mediator whose role is limited to assisting the parties to resolve the matter in dispute by mediation/conciliation. That is, I believe, identical to the wording in the Telstra agreement. Then there is in clause 7.8 the same statement that nothing in these procedures prevent a party from exercising their rights under the Act.

PN777

THE SENIOR DEPUTY PRESIDENT: Yes.

PN778

MR FETTER: It fell to consideration of the Full Bench, your Honour, as to what were these powers that the Commission could exercise under that clause, and I believe in this case there was an agreement to mediate, so the issue of 7.8 was not considered, which is the equivalent to our 26.8.

PN779

THE SENIOR DEPUTY PRESIDENT: Yes.

PN780

MR FETTER: If you look at paragraph 12 of the decision your Honour you will see that the Full Bench there says that there is no doubt that in dealing with the matter the Commission is carrying out functions under the Act and that the powers in section 111(1), that is a reference to the pre-reform Act because of the timing of the decisions, were prima-facie available to him. Now the Commission did not need to consider the nature of those powers as distinct from their applicability but went on to say in paragraph 13 that they agree with the submissions of the applicant, that,

PN781

It is the combined operation of section 170LW of the Act and the relevant terms of the agreement that govern the extent of the powers available to the Commission under a dispute settlement clause.

PN782

Skipping down a line,

PN783

We think that the dispute settlement clause that provided that the Commission could exercise all of the powers available to it under the Act would make all such powers applicable, subject to the limitations referred to in section 170LW itself.

PN784

I will also note that in paragraph 15 reference was made to the orders that might be made in the nature of - or in pursuance of the parties' conferral of jurisdiction to make orders by way of mediation/conciliation where it was held that the making of coercive directions are not necessarily inconsistent with orders in the nature of mediation/conciliation, and that is just a point I want to keep up my sleeve, your Honour, for my alternative argument that the source of the Commission's jurisdiction may be clause 26.6 of the agreement.

PN785

But returning to the primary submission which we have been putting to your Honour since at least Monday, we contend that this case stands for the proposition that it is not controversial at all that you may exercise all of the powers available to you provided that you have made a finding of I suppose a mixed finding of fact and law about what clause 26.8 of the agreement means, and we understood, your Honour, in your decision to have at least by implication made the finding that that clause is tantamount to a statement to paraphrase how it might have been put, that the parties may exercise all the rights they have under the Act and the Commission may exercise all of the powers it has under the Act in relation to disputes under a pre-reform certified agreement, and that those rights and powers are conferred notwithstanding anything in clause 26.6. We say that the fact that clause 26.8 is an independent source of power is reinforced by the use of the phrase "nothing in these procedures". So it is our submission that the fact that there is a second way that the Commission might given power by private agreement between the parties in clause 26.5 does not effect the flow on to the conferral of power in 26.8. So unless your Honour wants me to go further - - -

PN786

THE SENIOR DEPUTY PRESIDENT: No, I follow that. The only point that I don't follow is your 26.6 point, because as I say, if 26.6 is the gateway to mediation and one of the parties does not agree to have the matter mediated by anybody, how can you invoke the jurisdiction under 26.6?

PN787

MR FETTER: I will answer your Honour's question but can I just say that we would not agree that 26.6 is the only gateway to mediation.

PN788

THE SENIOR DEPUTY PRESIDENT: You say 26.8, I follow that, but I'm saying as far as 26.6 is concerned where you seek to argue in paragraph 4 that the Commission would there have power in relation to a parties' refusal to mediate under that provision itself, or to make orders in respect of a parties' unreasonable withholding of agreement to mediate.

PN789

MR FETTER: Yes, well your Honour I have to admit first of all that we thought we were assisted by the terms of your decision on Tuesday, but - - -

PN790

THE SENIOR DEPUTY PRESIDENT: To the point of 26.8 you might be but what I am saying is it seems to me that an application in respect of a failure of a party or a refusal of a party to agree to mediation under 26.6 itself would render any application in respect of that by one party without the agreement of another invalid.

PN791

MR FETTER: Yes, your Honour, our argument about this, our submission is set out in paragraph 4 of the outline of argument which links in to some of the submissions we have made in the outline of submissions under paragraph 8 of those submissions about the proper approach to construing clause 28 of the agreement. It is our submission, and we thought we made this submission to your Honour on Monday, is that it is necessary to imply into clause 26.6, either as a separate term or as a matter of construction, the notion that good faith controls the exercise of a parties' right to consent or not consent to mediation. So, for instance, we say that this clause cannot be understood to countenance a situation where, for instance, an employee has a grievance at work and they proceed up the chain from 26.2 to 5, and then the matter is still not resolved and there is a good reason to go to mediation but the employee is black, a female, disabled and Telstra - this is purely hypothetical of course - prejudiced against that person because of these irrational grounds and withholds it's consent to mediation for irrational, unreasonable, capricious grounds.

PN792

THE SENIOR DEPUTY PRESIDENT: Unless it indicates - you can probably get to where you want to go through 26.8, assuming you can identify a power and you have addressed me on that, but through 26.6 itself I don't see where you could get anywhere.

PN793

MR FETTER: Your Honour, we were content to leave it at 26.8 but Telstra - I'm sure Mr Wood will make submissions - is of the view that that is not a source of power and - - -

PN794

THE SENIOR DEPUTY PRESIDENT: I follow that.

PN795

MR FETTER: Yes, and we consider that as the finding of jurisdiction is the question of jurisdictional fact, it is open to your Honour to make further findings in relation to other bases on which you might be able to act. So we say if it is necessary to bolster the jurisdiction to proceed under clause 26.8, you should read it together with clause 26.6 in the way that we suggest that there is an implied limitation on the parties' capacity to withhold consent from mediation. To give you another hypothetical example which would never happen in the real world, there was a dispute involving an employee who was not a member of the unions and it progressed to management.

PN796

We don't see this clause 26.6 as giving the right the unions the right to object to allow that employee to have his dispute mediated on the grounds that they are not a member of a union. Such action would be capricious and intransigent. Your Honour's reference to intransigence in the judgment suggested to us that you were taken with the submissions that we thought we were putting on Monday that there is an implied control on the parties' capacity to withhold consent to mediate under clause 26.6 and we understood your Honour to have made the finding that Telstra have acted in bad faith or perhaps have come very close to that finding, and as a consequence we thought that you might actually be basing your decision on an implied limitation to clause 26.6. I am afraid to have to be the one - - -

PN797

THE SENIOR DEPUTY PRESIDENT: There is no provision in the legislation though is there that you can point to that demonstrates that any party is required to act in good faith in negotiations?

PN798

MR FETTER: Your Honour, we say that the implied limitation does not need to come from the Act but comes from the four corners of the agreement.

PN799

THE SENIOR DEPUTY PRESIDENT: But hasn't there been a decision about that?

PN800

MR FETTER: If your Honour - - -

PN801

THE SENIOR DEPUTY PRESIDENT: I thought it was in relation to Census.

PN802

MR FETTER: Yes, I have got the Census decision in front of me your Honour. But I will take you to that. Can I just say - - -

PN803

THE SENIOR DEPUTY PRESIDENT: I think Finkelstein J's finding in the Federal Court suggested that perhaps resort could be had to section 110.

PN804

MR FETTER: That's right, your Honour, first of all if any statutory basis is needed for the notion that you can imply terms into agreements, we have made reference to Finkelstein J's decision.

PN805

THE SENIOR DEPUTY PRESIDENT: Where is that?

PN806

MR FETTER: Just bear with me your Honour.

PN807

THE SENIOR DEPUTY PRESIDENT: I don't recall seeing a reference to it. I just recall it just now but - - -

PN808

MR FETTER: Yes, it must have fallen out of our submissions your Honour.

PN809

THE SENIOR DEPUTY PRESIDENT: That's the Census decision you are referring to?

PN810

MR FETTER: No, it was an AMWU decision. I can provide that to your Honour.

PN811

THE SENIOR DEPUTY PRESIDENT: Skilled Engineering.

PN812

MR FETTER: Skilled Engineering, where His Honour found there was no bar to implying terms into an agreement. Your Honour, we also say that if there is any concern about that we don't necessarily put it as a need to imply a term into the agreement, but rather just interpreting the words of the agreement the reference to consent should be understood properly as a reference to consent honestly, faithfully, reasonably, given - not given - - -

PN813

THE SENIOR DEPUTY PRESIDENT: Not unreasonably withheld.

PN814

MR FETTER: That's right. We don't necessarily say there is a new sentence in the provision but we say that as a matter of construction it is implied in the notion of consent that it is good faith consent and consent also fully informed, and your Honour the notion of consent has got a long pedigree in law. There are many cases, mostly in the criminal jurisdiction, that go to want consent means. So for instance in rape proceedings the mere fact of consent is not enough, a victim has got to give consent to intercourse on a fully informed basis. That may seem like a strange analogy but - - -

PN815

THE SENIOR DEPUTY PRESIDENT: It does seem a bit strange, I must say.

PN816

MR FETTER: I only mention it to say that the courts do not take a purely literal interpretation of the word "consent" and are prepared to read that term as if it really said consent given with full knowledge and in good faith. So, your Honour, that is how we say the clause should be read. As to the propriety of approaching it in this way, it is probably a good time to take your Honour to the Census decision.

PN817

THE SENIOR DEPUTY PRESIDENT: The one in the Commission?

PN818

MR FETTER: No, the Full Court of the Federal Court proceedings your Honour. I have got it here. I believe that the respondent's have included that in their list of cases. Is that correct? No.

PN819

THE SENIOR DEPUTY PRESIDENT: Just excuse me a moment. The court reporter is getting interference from a mobile phone. Does anybody in here have a mobile phone switched on. If you do please turn it off.

PN820

MR FETTER: This is the decision of the full Federal Court. Unfortunately, your Honour, because I thought that the respondent's had a copy in their outline of cases I only have the one copy in front of me.

PN821

THE SENIOR DEPUTY PRESIDENT: I don't have a copy, I remember it, but I don't have a copy of it with me.

PN822

MR FETTER: But given that there is only one copy I won't go to it.

PN823

THE SENIOR DEPUTY PRESIDENT: Perhaps you might refer me to the place you want to refer to.

PN824

MR FETTER: Yes, just the conclusion, your Honour, which is at paragraph 63 of the joint judgment of Wilcox and French JJ.

PN825

THE SENIOR DEPUTY PRESIDENT: Do you want to read that out to me?

PN826

MR FETTER: Actually, your Honour, I will just give you the background to the case if that's necessary. This was an application in the Commission by the CPSU for orders from Commissioner Smith. Essentially under section 170NA of the pre-reform Act which isn't relevant today your Honour, but seeking essentially orders that the parties negotiate in good faith for an agreement. The respondent, which of course was either a subsidiary I believe of Telstra or some other related - a subsidiary of Telstra I am told, thank you Mr Wood, objected on the grounds that there was no power to make those orders. The Full Court in the principal judgment has listed the arguments made by counsel for the CPSU which in paragraph 58 counsel noted that,

PN827

It has been long established that the AIRC can make orders in conciliation.

PN828

End quote. But including ordering compulsory conferences.

PN829

Counsel submit that the power specified in section 111, the powers which are or may be necessary for the effective conduct or disposition of a proceeding. They are available in a conciliation proceeding where the power is to be used for the purpose of conciliation. Where the processes of conciliation and arbitration are brought to bear on an industrial dispute they are brought to bear in the case of conciliation for the purpose of reaching agreement or in the case of arbitration for determining what those rights and liabilities should be. Section 111 powers are not available in conciliation for the purpose of determining the content of an industrial instrument. However, in relation to matters of process rather than content the AIRC can exercise the powers available to it in section 111 in conciliation, including those specified in paragraph E, D and T of section 111(1).

PN830

Your Honour, those submissions were adopted by the majority judgment in paragraph 64. In setting out their conclusions in relation to the case the majority judgment rejected the submission of Census that making the orders sought by the union would deprive Census of making an agreement directly with it's employees under section 170LK of the former Act, and stated that,

PN831

It was difficult to understand why any fair minded employer would wish to deny any assistance - that is union assistance - to employees in bargaining.

PN832

The rest of the conclusions, your Honour, go to the construction of section 170NA which is not relevant. For the present proceedings, your Honour, we just want to note that there was no problem in making orders in the nature of conciliation to facilitate good faith bargaining. So we submit that it is plainly within your power to make the orders that we are seeking, provided you accept you have that power conferred by the parties under clause 26.8 or as we submitted in the alternative clause 26.6 of the agreement. I will pass a copy of that to Mr Wood so that he can flick through it.

PN833

Your Honour, I wanted to make just one final point about jurisdiction before I move on. What we say you are able to do and that is by reference to the AMRS case. I will hand a copy up to your Honour via your Associate, and this time I do have copies for everybody.

PN834

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN835

MR FETTER: Your Honour, this is the principal decision in the Commission's jurisprudence dealing with findings of jurisdictional fact when conducting hearings in the nature of these, your Honour. This was a decision of Munro J, Kaufman SDP and Commissioner Cribb. I believe that the background to the case is that a dispute arose as to whether a company which had allegedly taken over a business that was bound by a pre-reform collective agreement was properly regarded as a party to the dispute within the meaning of the agreement, and I believe that Commissioner Tolley in the course of hearing the matter found that that was the case, and that was appealed by PowerCorp relevantly, but the successor to PowerCorp's business AMRS.

PN836

The Commission sets out in long detail your Honour the applicable principles that go to the exercise of the Commission's discretion and power to find that jurisdiction to act exists. I apologise because I have either handed to your Honour or the respondent my marked up copy of the decision.

PN837

THE SENIOR DEPUTY PRESIDENT: I don't think I have it.

PN838

MR FETTER: No, here it is your Honour. I printed an extra copy. Battling uphill this morning, your Honour, it's a Saturday morning. I want to refer your Honour to the discussion from paragraph 42 really through to the end of paragraph 69 and I won't go through it in any detail now, your Honour, except to say that it clearly stands for the proposition and summarizes what is, we submit, pretty settled law that in exercising your powers in the shows of a private mediator in this case, you have the discretion - I shouldn't say the discretion your Honour - the ability to make findings as to your jurisdiction, that your ability to do so will in general be respect on appeal because particularly in cases such as this where the jurisdiction cannot be easily established at first instance as a matter of findings of evidence, but it is a question of a mixed finding of fact and law, that your Honour is entitled to find jurisdiction as you see fit, including if I can put it this way, bit by bit and on shifting or alternative grounds.

PN839

So your Honour I think that my learned friend, without pre-empting his submissions, is going to allege you shouldn't hear this matter any further this morning or should not make orders because the jurisdictional findings that you made on Tuesday are flawed. We submit that that first of all is a matter for appeal and shouldn't be agitated here, but if there is any doubt we say this case stands for the proposition that because it's a jurisdictional fact it is actually only something a court can determine, but you are within your rights as the private mediator of this dispute to reasonably find jurisdiction as you go from time to time, depending on what's put to you by the parties. So to the extent that there is a new ground on which we submit there is jurisdiction under paragraph 4 of our outline and arguments, we believe this case doesn't preclude you from relying on that as an additional ground today your Honour.

PN840

If it pleases your Honour I will just go back to that alternative submission. I have said under our primary submission we believe the ultimate source of your powers are the old section 111(1) of the Act and I just wanted to briefly say that we concede you may have a different set of powers if you are minded to find that you also have power to proceed under clause 26.6. That submission is put in paragraph 7 of ACTU3 our outline of argument, where we make the express concession that if you believe you are exercising power under that clause you are limited by the words of that clause, but we do say that you must examine the words and satisfy yourself as to what they mean.

PN841

It is our submission, and this is where, your Honour, again we draw a link back to 26.8. It is our submission that in using the word "conciliation" the sophisticated industrial parties here have deliberately and expressly referred to and invoked the traditional powers the Commission has in conciliation. We would reject the contention that conciliation is a reference for instance just to the power to make orders, to meet and confer it. We submit that the in clause 26.8 to the parties under the Workplace Relations Act and the role of the Commission under that piece of legislation is clearly intended to pick up the normal range of powers. So in our submission, your Honour, it doesn't matter whether you think you are proceeding under 26.6 or 26.8, it is our submission that your powers are actually the sweeping powers in section 111(1), except to the extent that any of those powers are inconsistent with the term "conciliation".

PN842

So if you are going under 26.6 we will concede that you cannot arbitrate the dispute, but we are not seeking orders in the nature of arbitration, so the concession is made freely but is not relevant to proceedings. But if you were proceeding under 26.8 we would reserve our right to submit that you have the power to arbitrate the dispute because of the route that I took your Honour to as 111, and we submit that the only way the respondents could oppose that contention is to suggest that somehow the limitation contained in 26.6 to the Commission mediating is a control on what the Commission can do in 26.8. That is for the respondents to make that submission if they want. But, your Honour, this is interesting from a legal technical point of view but doesn't affect the question before you today, because we submit the nature of the orders sought are in the nature of orders in pursuit of conciliation. So unless your Honour wants to hear anything further.

PN843

THE SENIOR DEPUTY PRESIDENT: In what part of section 111 do you say I can make the types of orders that are being sought in your draft orders?

PN844

MR FETTER: Yes, your Honour, well we - - -

PN845

THE SENIOR DEPUTY PRESIDENT: First of all do the draft orders incorporate what you have proposed in paragraph 12 and paragraph 17?

PN846

MR FETTER: Well, your Honour, perhaps I will if I may walk you through each order sought and explain in detail the power - - -

PN847

THE SENIOR DEPUTY PRESIDENT: Yes.

PN848

MR FETTER: - - - that we are relying on. The first - I should explain that originally we had sought two orders, and I have already submitted that the way that the week has panned out has made it necessary, we believe, for the Commission to make an authoritative statement about what has occurred. We say that your power to do this comes from your power under section 111B(ii) of the former Act which is a power to make an interim award or order, and
your Honour - - -

PN849

THE SENIOR DEPUTY PRESIDENT: Which was that, 111?

PN850

MR FETTER: 111(1)(b)(ii).

PN851

THE SENIOR DEPUTY PRESIDENT: Yes.

PN852

MR FETTER: In fact your Honour considered the power to make such a statement in your decision in the TWU v Brinks Australia and I will hand up copies of that judgment your Honour. I have also provided to His Honour and I will provide to Mr Wood a copy of the relevant parts of the collective agreement that was under consideration in that case, in case any attempt is made to distinguish it.

PN853

THE SENIOR DEPUTY PRESIDENT: Yes.

PN854

MR FETTER: But, your Honour, this was an application before you by the TWU for an order in the nature of an interlocutory injunction restraining Brinks from terminating the employment of a number of employees who were involved in a dispute over their alleged redundancies and if I take your Honour to - - -

PN855

THE SENIOR DEPUTY PRESIDENT: That was appealed, wasn't it your Honour?

PN856

MR FETTER: I'm not sure your Honour.

PN857

THE SENIOR DEPUTY PRESIDENT: I'm not sure the appeal was heard because I think the matter settled.

PN858

MR FETTER: Yes, usually, your Honour, if a case is appealed there is a note at the top of the judgment that a section 45 notice has been lodged, and I can inform the Commission that a search on the Commission's website with the print number of the document does not disclose any decision. In paragraph 11 of the decision you have said that you understand that section 111(1)(p) of the Act, which is the current Act, permits you to make interim decisions and I believe that section 111(1)(p) is relevantly identical to the provisions of the former Act in that it refers to the Commission's power to make interim decisions. Then in paragraph 17 your conclusion is that the power to make interim decisions permits you to make a declaration that on the facts as they presently appear to you it is contrary to the spirit and terms of the agreement in question for the employer there to terminate the employment of the relevant class of employees before a redundancy package has been settled between the parties, and you did make that formal declaration.

PN859

Your Honour, for the avoidance of doubt, this was an application before you under section 170LW of the pre-reform Act. I have given your Honour a copy of the agreement in question and if there is any doubt the dispute settlement procedure is set out in clause 11 and it provides under step 5 that the Commission - well again it doesn't empower the Commission in express terms but it provides a right of the parties to notify the matter to the Commission, but there is a clear reference to conciliation and arbitration. We submit that the statement that your Honour made in that case was clearly pursuant to your powers of conciliation and we would reject any contention that somehow that was made under the other limb in that agreement which is arbitration. I can make further submissions if that point is pressed your Honour.

PN860

So the first order that we seek we say is empowered under section 111(1)(b)(ii) of the pre-reform Act. If you are inclined to proceed under clause 26.8 of the agreement. If your Honour was inclined to proceed under clause 26.6 of the agreement we would also suggest - - -

PN861

THE SENIOR DEPUTY PRESIDENT: Sorry, I lost you then. The first part of the order you say would be under 111(1)(b)(ii).

PN862

MR FETTER: Yes.

PN863

THE SENIOR DEPUTY PRESIDENT: That's the preamble to it is it?

PN864

MR FETTER: No, your Honour, sorry.

PN865

THE SENIOR DEPUTY PRESIDENT: Maybe I've got the wrong draft order.

PN866

MR FETTER: No, no the draft order that you have before you is only in relation to our third claim for relief.

PN867

THE SENIOR DEPUTY PRESIDENT: So you are referring there to the point in paragraph 12.

PN868

MR FETTER: Yes, and we have suggested wording for your Honour but of course we wouldn’t want to verbal your Honour in relation to any statement you might make, but we repeat it essentially the language you have used in the Brinks case. So that is the order that we seek. The power under which the order can be made, as I have suggested, is section 111(1)(b)(ii) and in terms of the merits of making the order, your Honour, Mr Walton has already set out - first of all your Honour, we submit, has already had sufficient evidence before him to be satisfied that Telstra has acted in bad faith and that material was gone through in detail by Mr Walton last week. We submit that - - -

PN869

THE SENIOR DEPUTY PRESIDENT: But if I am making an interim order there are issues of balance of convenience as well aren't there, I mean Mr Fewster in his statement refers to the costs associated with the conduct of the ballot of the employees and so forth doesn't he?

PN870

MR FETTER: Yes, your Honour, but at the moment we are discussing the possibility of a statement that Telstra is not bargaining in good faith. We concede that there is an interim, although you would have to in exercise of your discretion, consider the effect that it would have on the parties.

PN871

THE SENIOR DEPUTY PRESIDENT: Right.

PN872

MR FETTER: But your Honour we say that the dispute is essentially worsening and has worsened over the course of the week and that as Mr Walton has set out, threatens to escalate into a major industrial dispute involving industrial action, and we believe that the Commission has power under clause 26.6 of the agreement and/or clause 26.8 to issue a statement which we believe well assist in conciliating the dispute and it is a relevant consideration given the Commission's general powers that it will assist in, we submit, avoiding significant industrial disputation. So we do ask your Honour to make a statement in those terms. If I can turn to the second order that we are seeking your Honour.

PN873

THE SENIOR DEPUTY PRESIDENT: In the current Act where does it say that the role of the Commission is to prevent and settle industrial disputes?

PN874

MR FETTER: Well, your Honour, we say that that power has unfortunately disappeared I believe from the legislation but we maintain the position that we are acting at the moment under the pre-reform Act and if - - -

PN875

THE SENIOR DEPUTY PRESIDENT: All right, I follow.

PN876

MR FETTER: Your Honour, those are the relevant provisions. The second order we are seeking is an order that Telstra participate in conciliation processes under the auspices of the Commission. We say that this is clearly either, if you are proceeding under 26.8 an order that the Commission is able to make under it's general powers to give directions, to summon parties and so on and so forth and including powers to convene compulsory conferences of the party. I mentioned before that it has been said in the Telstra case and also I think the Census case, the fact that an order is compulsory in nature does not deprive it of the character of being conciliatory in nature. But your Honour under this claim for relief we don't seek any particular orders today, except an order that the parties meet and attempt to program their own schedule of conciliation and negotiation meetings.

PN877

It is only in the event that the parties were having difficulty in agreeing on a schedule or if the schedule was agreed upon but was still not resulting in the resolution of the dispute within a reasonable time that we would have liberty to apply back to your Honour for further concrete orders in the nature of expressly contemplated by clause 26.6 and clause 26.8 in the nature of good faith bargaining orders. Those were the sorts of orders that Commissioner Smith made in the Census case as upheld by the Federal Court, we don't seek them today, we just seek an order that the parties program their own discussions but under the rubric of an obligation to meet and conciliate in good faith for the purposes of resolving a dispute under clause 3.2 of the agreement.

PN878

The third order that we make, your Honour, we also submit is germane to resolve the dispute before you. Given that the dispute is about whether Telstra is genuinely bargaining to replace the agreement with another agreement, and that is our interpretation of clause 3.2. It is our submission that if Telstra proceeds with the proposed ballot of part of it's workforce on Monday and Tuesday, then the outcome of that ballot may well deprive your Honour of the jurisdiction that you have on the grounds that we have set out to conciliate or otherwise deal with the dispute. This is because first of all in paragraph 19A we put the view that the obligation in clause 3.2 of the Telstra agreement is clearly to negotiate a replacement to the existing agreement. It is our submission that the z

PN879

THE COMMISSIONER: But that's only with part of the workforce.

PN880

MR FETTER: Yes, your Honour, the agreement doesn't cover the entire workforce but - - -

PN881

THE SENIOR DEPUTY PRESIDENT: So what part of the workforce does it cover?

PN882

MR FETTER: I'm instructed that it's around 90 per cent of the workforce your Honour.

PN883

THE SENIOR DEPUTY PRESIDENT: Mr Fewster's statement refers to something like 380 employees.

PN884

MR FETTER: Sorry, your Honour, the ballot on Monday and Tuesday covers a very small proportion of the workforce.

PN885

THE SENIOR DEPUTY PRESIDENT: What part of the workforce is that?

PN886

MR FETTER: I believe it's the wholesale division but perhaps the respondent can give you more. 380 employees out of 32,000 employed by Telstra, and the figure of 11,000 employees who are bound by the current enterprise agreement is also, I think, in evidence your Honour, but I am liable to be corrected on that. Your Honour we say, and this is the dispute which your Honour does not have to decide but is asked to conciliate, we say that clause 3.2 when it refers to a replacement agreement can only be talking about an agreement that is relevantly identical to the current agreement at least in terms of it's scope and parties. So the extent that Telstra is seeking an agreement with different parties, we say that that cannot be a replacement agreement, and to the extent that Telstra is seeking to fragment the workforce by offering a vote to these 380 employees, that will reduce the class of employees who are eligible to become bound by any replacement agreement and so - - -

PN887

THE SENIOR DEPUTY PRESIDENT: Are these 380 employees part of the 11,000 employees who are currently covered by the award?

PN888

MR FETTER: Yes, your Honour, so they are within the scope of the agreement and we submit their interests in this first of all are very important and second of all to date appear to have been overlooked, and I will come to the fourth ground of relief we're seeking which goes to the interests of the other, we say, participants in the dispute. But at the moment the point about why we seek orders in the nature of an injunction restraining Telstra from proceeding with the vote is, as I said, first of all it will make the dispute between the parties futile in that if the vote is approved any agreement that the parties then sit down to negotiate will not meet the description of a replacement agreement, it will not be an agreement that covers the same class of employees.

PN889

THE SENIOR DEPUTY PRESIDENT: But if it's voted down what's the - - -

PN890

MR FETTER: If it's voted down, your Honour, yes they are still within the class. But we submit that the interim relief is needed because if the agreement is voted up, your Honour, there is really no way for anybody to do that decision. If for instance either the Commission or a court for instance later found that there was a breach of clause 3.2 of the agreement. So it is very important to preserve the rights of the employees and the unions in this case, that the status quo be maintained, pending the Commission's handling of the dispute. The unions aren't opposed - well - - -

PN891

THE SENIOR DEPUTY PRESIDENT: Why is it important to maintain the class as it exists, why couldn't the unions still negotiate an agreement with Telstra in respect of the other 10,000 - - -

PN892

MR FETTER: 10,700 employees.

PN893

THE SENIOR DEPUTY PRESIDENT: Yes.

PN894

MR FETTER: Yes, your Honour, we made two submissions and they are there at paragraph 19. The first is that our submission is that clause 3.2 obliges Telstra to participate in good faith in negotiations with the intention of reaching a replacement agreement. We say that there are two characteristics that a replacement agreement must meet, that is that it must be an agreement with the same parties and it must be an agreement that covers the same classes of employees, subject to the mutual agreement of the parties to do otherwise. But in this case the unions have by no means agreed to waive their right to be a party to the replacement agreement and they are very keen to be a party to that agreement and the unions have not at all conceded a reduction in the footprint of the replacement agreement. So our first submission, your Honour, is that if the ballot goes ahead and is voted up it will destroy the subject matter of the dispute between the parties because 3.2 will become inapplicable. It will not be possible for the parties to re-negotiate a replacement agreement. They may be able to negotiate for some other agreement, but that will not meet the test in clause 3.2.

PN895

MR WALTON: Could I just add, your Honour, that until a couple of months ago Telstra was allegedly negotiating an agreement for the whole workforce and until recent times has gone down this path of splitting the workforce into small units that ultimately not only affects those employees and their bargaining power and their position, we would argue, but also sets a precedent for other employees. So it affects both groups, and we would argue strongly, your Honour, for them to be able to proceed would be in fact to have Telstra benefit from the bad faith behavior we believe we have provided in evidence and that those employees would be affected as well as the other employees, based on basic industrial principles.

PN896

MR FETTER: Thank you, Mr Walton, that is - - -

PN897

THE SENIOR DEPUTY PRESIDENT: Which section by the way, Mr Fetter, are you suggesting this order should be made under, or where do you say the power would come from to - - -

PN898

MR FETTER: Once again, your Honour, orders of this nature were made by your Honour in the Brinks decision.

PN899

THE SENIOR DEPUTY PRESIDENT: You are saying 111(1)(b)(ii) would support an order of this nature?

PN900

MR FETTER: Yes, your Honour.

PN901

THE SENIOR DEPUTY PRESIDENT: Yes.

PN902

MR FETTER: Just to follow on from what Mr Walton said and to continue the structure of the argument, in paragraph 19B we put the second reason why the ballot ought to be inducted and that is the effect on the remaining employees because in fragmenting the workforce, your Honour I think can take it as accepted that it reduces the bargaining power of the remaining employees in a way which makes it more difficult that the object and end point anticipated in clause 3.2 can be reached. We say that clause 3.2 clearly anticipates the parties negotiate a replacement agreement.

PN903

It doesn't mandate that an agreement be reached but it does mandate that the parties engage in good faith discussions with a view to reaching a replacement, and as Mr Walton has just suggested it is our submission that in offering a ballot to a part of the workforce, Telstra is essentially acting in bad faith in a way which subverts the rights and interests of the remaining employees and the unions in seeking to conclude an agreement as foreseen by clause 3.2. So the second submission on the merits, your Honour, is that it essentially exacerbates the dispute and that it also prejudices the union's ability to participate in negotiations. So, your Honour, if there is any doubt about your powers we refer you to the Telstra case at paragraph 4. I keep getting this wrong but I think that is before you through the respondent's cases, but if it's not I will hand up copies. I believe that's in the respondent's list of cases.

PN904

THE SENIOR DEPUTY PRESIDENT: Yes. Did you already have - - -

PN905

MR FETTER: I think that's already gone up your Honour.

PN906

THE SENIOR DEPUTY PRESIDENT: Yes, it has.

PN907

MR FETTER: Too many authorities.

PN908

THE SENIOR DEPUTY PRESIDENT: I think you foreshadowed referring to some part of your argument.

PN909

MR FETTER: Yes, your Honour, where the Commission - I think I have already referred your Honour to the relevant provisions - clearly finds that the Commission's power to make interim orders of a procedural nature and so we also rely on that case, your Honour, although I don't think in that case an injunction type remedy was sought, but I will just put it on record that we rely on that case.

PN910

THE SENIOR DEPUTY PRESIDENT: Yes.

PN911

MR FETTER: The final order that we are seeking, your Honour, has been notified for a while, so that we have slightly amended versions of the draft order so that the current form of it appears as an appendix to our outline of argument, ACTU3. We have proposed that in the present case there are many parties to the dispute. I think in submissions before you on Monday, your Honour, Mr Wood suggested that the employees were not tappable P parties within the meaning of the clause.

PN912

THE SENIOR DEPUTY PRESIDENT: Yes.

PN913

MR FETTER: We don't necessarily accept that argument but it is probably not even necessary to conclude it. We say that they are people who are parties to the dispute, in the sense that they are involved and affected, and that it is relevant to the Commission to ascertain their views about what they want to happen. I have referred your Honour in paragraph 24 to a number of cases including one case upheld on appeal where the Commission has ordered a ballot of employees to seek their views, not under section 135 of the pre-reform Act which dealt with member only ballots in relation to industrial disputes, but under the normal powers of conciliation. So I can hand up to your Honour the ASU v. Tenix decision and I have attached for your Honour's benefit the original decision, the appeal decision and actually I had better make sure that's not my marked up copy. I have a habit of handing your Honour the top copy. No, no, that's all right. The original decision, the appeal decision and for some reason which I can't enlighten your Honour about, the ballot was eventually withdrawn and on the application of the union, and I have also for completeness s included the decision - - -

PN914

THE SENIOR DEPUTY PRESIDENT: But this was a section 170NA case wasn't it?

PN915

MR FETTER: Yes, it was your Honour, but section 170NA refers to the Commission's powers of conciliation, so the link is back to section 111.

PN916

THE SENIOR DEPUTY PRESIDENT: But in relation to bargaining.

PN917

MR FETTER: That's right.

PN918

THE SENIOR DEPUTY PRESIDENT: In this case we are talking about a dispute over an application for agreement, not a dispute about bargaining as such. But 170NA talks about part 6B, which as I say is all about the bargaining process and the conclusion of a new agreement.

PN919

MR FETTER: Yes, your Honour, can I say that you are right that that case was about bargaining, but section 170NA merely provides the Commission with it's ordinary powers of conciliation, or did provide the Commission with it's ordinary powers of conciliation in relation to negotiations for a certified agreement, and so in our submission it is irrelevant or it was a preliminary question which need not concern us here as to how you got to section 111 powers but once you are there we are submitting that it is within the Commission's general powers to inform itself as it sees fit and also in resolving a dispute under an agreement in this case to ascertain the views of people concerned.

PN920

THE SENIOR DEPUTY PRESIDENT: So what part of section 111 do you say supports the exercise of this power?

PN921

MR FETTER: Your Honour, I think in the ASU case the power that was identified was section 111(1)(t) and 111(1)(d) and if your Honour has any reservations about this case being one in which the Commission's powers, we submit, under section 111 are enlivened through section 170LW, we would also like to provide a further case where a similar ballot was ordered in respect of the section 170LW application and that is the case of the CPSU and the Australian Public Service Commission where there was a certified agreement on foot with an obligation to re-negotiate and the parties were in dispute about whether that obligation had been complied with, and they were also seeking the making of a new agreement under those provisions and so were entitled also to rely upon section n170NA.

PN922

Her Honour Commissioner Deegan considered that she had power in that case and that it was appropriate to order a ballot of the views of employees as to the type of agreement that they wanted to come out of these dispute between the parties under the agreement. If your Honour looks at paragraph 10 of the decision, you will see the re-negotiation obligation in clause C6 of the agreement set out and we submit that the case is relevantly similar to the one before your Honour and that it matters not that in that case, because it was decided in 2005, that the agreement they were seeking, I believe, to replace the existing agreement was also a pre-reform certified agreement.

PN923

THE SENIOR DEPUTY PRESIDENT: But the difficulty here is, isn't it, that the new Act makes provision for the negotiation of the new agreements and for bargaining or assistance in bargaining under the new Act and that sets out a particular type of procedure to deal with that.

PN924

MR FETTER: Yes, your Honour, but we are not submitting that your power comes from at the moment anywhere other than the four corners of the agreement, and so what the new Act does in relation to bargaining shouldn't apply. We are asking your Honour to make this order pursuant to your function in conciliating or otherwise resolving the dispute between the parties about the application of the agreement.

PN925

The parties do have various rights and remedies under the new Act in relation to any future agreement that they are seeking and they will, no doubt, rely on those rights, but we are not seeking - the issue here, your Honour, is that for better or for worse clause 3.2 of the agreement provides a conceptual link between the state of affairs as they existed in September 2005 when this agreement was certified and the present because we are told under clause 3.2 expressly that the parties must commence discussions in April 2008. So we are asking the Commission in resolving a dispute about what clause 3.2 may mean to seek the views of the employees. For instance, your Honour, this may go against us, you may order a ballot of the employees and they are not perturbed by the fact, as we alleged, Telstra has bargained in good faith and they expressly tell you they are either indifferent to or hostile to Telstra negotiating with the unions in good faith as we submit is required by clause 3.2.

PN926

If that was the verdict of the majority of employees, your Honour, the unions would obviously accept it. But the ballot is not for our purposes, your Honour, we suggest it is for your purposes. We suggest that it is not possible for you to exercise your functions under clause 26.6 or 26.8, ignoring or not having direct access to the views of the employees. Your Honour, if you submit the merit of the submission that there are other parties to this dispute whose views need to be heard, it would be open to your Honour to hear them in any way that you saw fit, but apart from having individual appearances by thousands of workers or a petition we think that the most efficient way to gather a large amount of information about the views of employees is to conduct a ballot and we have endeavored in the draft order to make the ballot as simple for the industrial registrar to administer and least burdensome upon Telstra to cooperate with the industrial registrar.

PN927

A very simple email ballot that can tell your Honour within a very short period of time whether the dispute is one that is merely trivial between the parties and is of no real practical concern to the employees or whether it is actually, as we submit, something of vital burning concern to the employees, such that it may well result in wide scale industrial disputation, industrial action to Telstra if the matter cannot be settled. Your Honour, we say that it is vital to get the employees' views. Telstra in other forums and in the media has suggested that in relation to the substance of the dispute this is simply a union campaign to enforce it's role in Telstra. We proposed on a number of occasions, and it is our submission that this dispute concerns the employees and we consider that if a ballot is ordered your Honour will find that a majority of employees consider that Telstra is in breach of it's obligations and want Telstra to comply with it's obligations.

PN928

THE SENIOR DEPUTY PRESIDENT: But isn't Telstra in effect, by conducting it's own ballot of employees about it's agreement, conducting a ballot of that nature?

PN929

MR FETTER: No, your Honour, it's only conducting a ballot of first of all one per cent of the people affected by the dispute and it has chosen who to ballot, so without suggesting necessarily that there is any gerrymander involved, it is not a ballot of the relevant class, which is the people who are interested in this dispute. The people interested in this dispute are the people bound by this agreement and who will be bound by any replacement agreement. So for Telstra to ballot a part of the workforce and suggest to your Honour that that should go to the exercise of your conciliation and dispute settling powers, I do not think it would be correct for your Honour to rely on the accuracy of that as any indication, except in respect of what those members want about how they see the dispute playing out.

PN930

MR WALTON: Your Honour, if I could add, I think those ballots are totally different. What Telstra is proposing to have a ballot of a small group of employees and say because of what we allege bad faith behavior we are putting before you an agreement with a part A and part B. We are seeking to put you in a position where you are separated from the rest of the workforce and where you have before you a choice to take it or leave it without any right to be represented by your union, even though over 70 per cent of those on the enterprise agreement are union members, without any negotiation you make a choice now to accept or not a pay rise, even though future employees have their conditions reduced should I say. You have a choice now to take it, and by the way in case you don't we will put you on a wage freeze for one year. I mean there is no comparison, we would say, your Honour, in these ballots.

PN931

MR FETTER: Yes, it is not merely a ballot to ascertain people's views, it is a decision people have to make about their income and their rights going forward.

PN932

THE SENIOR DEPUTY PRESIDENT: Tell me this, Mr Fetter, in paragraph 5 of that draft order, it might be just me or it might be because it's Saturday morning or something but what does it mean when it says, "Yes, please send a blank email."

PN933

MR FETTER: Your Honour, what we had anticipated in order to assist the industrial registrar and Telstra, but obviously subject to the views of both, is an email ballot whereby you can see under draft order 4 the industrial registrar will establish two separate email accounts and the response of employees who are voting yes will go to one account and no to the other account. The purpose of that, your Honour, is to make it very easy for the industrial registrar to count the votes because they - - -

PN934

THE SENIOR DEPUTY PRESIDENT: I understand that, but what do I insert for the word "blank" I don't understand.

PN935

MR FETTER: In paragraph - - -

PN936

THE SENIOR DEPUTY PRESIDENT: In the quoted portion under paragraph 5.

PN937

MR FETTER: Right. Just that, your Honour, we thought that with a "yes" vote perhaps we ought to ask employees to write the word "yes", but in the end if they could send it to the correct email address it will function as a "yes" vote. But if it was thought to be prudent to require them to write "yes" or "no" as to how they were voting, then that could be stipulated.

PN938

THE SENIOR DEPUTY PRESIDENT: I see.

PN939

MR FETTER: But we wanted to avoid any arguments if that was the requirement about what a blank email might mean, whether it was an invalid vote because they sent it to the "yes" account but hadn't written "yes". But, your Honour, we are not fixed on any of these orders. We have just done it as a quick and speedy way to get people's options.

PN940

THE SENIOR DEPUTY PRESIDENT: All right.

PN941

MR FETTER: Your Honour, I am essentially ready to sit down. There are provisions in that draft order that I can make further submissions in relation to if for instance Telstra is concerned that the obligation not to interfere in the running of the ballot in draft orders 9 and 10 are too onerous but I will just flag - - -

PN942

THE SENIOR DEPUTY PRESIDENT: I think they will tell me that - apart from the fact they haven't got the power to do anything, the whole thing is too onerous.

PN943

MR FETTER: Yes, yes, but I am happy to leave it there your Honour, except to say this in conclusion as to how we submit you should deal with the matter. We have made the submission that the reason we are sitting today on a beautiful Saturday is that the ballot is occurring on Monday and Tuesday and that if this occurs it will seriously prejudice the rights and interests of the union and the affected employees, and so in the nature of relief we are seeking that an order in the nature of an injunction restraining the ballot issued today. We suggest that given the nature of - we would like the other orders to also be issued today, your Honour, but as I have already alluded to, the orders about participating in conciliation is really an order for the parties to go away and program their own discussions. Given the complexity of the issues I am sure your Honour will want to take some time to issue reasons for the decision, so we wouldn't oppose the making of orders with reasons to follow. If it please the Commission.

PN944

THE SENIOR DEPUTY PRESIDENT: Thank you Mr Fetter. Yes, Mr Wood.

PN945

MR WOOD: Your Honour, may I ask you what time you intend to rise for lunch?

PN946

THE SENIOR DEPUTY PRESIDENT: I didn't know that I was going to, but how long do you think you will be in your submissions?

PN947

MR WOOD: I think my learned friend took two hours.

PN948

THE SENIOR DEPUTY PRESIDENT: I'm not meaning to restrict you in any way, I just - - -

PN949

MR WOOD: No, I thought at least until one o'clock your Honour.

PN950

THE SENIOR DEPUTY PRESIDENT: You think you might be finished by one o'clock?

PN951

MR WOOD: I don't think so, but I may be.

PN952

THE SENIOR DEPUTY PRESIDENT: Well would you prefer to have the luncheon adjournment now? Would it be convenient to have the luncheon adjournment now and come back at one o'clock?

PN953

MR WOOD: It's up to you, your Honour, but we would prefer to at least get a start and say something.

PN954

THE SENIOR DEPUTY PRESIDENT: Yes, very well.

PN955

MR WOOD: Your Honour, can I deal with first of all why we are here and adopt what Mr Fetter has said, that is we are here because of the ballot of 380 employees on Monday and Tuesday and it is only that aspect of the four orders now sought, that your Honour really needs to address, because all the other matters have to await the determination of jurisdiction on final basis and then a determination as to the things that we have conceded for the purpose of ascertaining this preliminary jurisdictional question, that is we're going to have to have a discussion about whether in fact it's ….. the application of the agreement constituted by 3.2, whether in fact it has percolated through sub-clauses 1 to 5, and whether or not it's jurisdiction exists in the absence of agreement the type of orders that the applicants and interveners seek can be made.

PN956

THE SENIOR DEPUTY PRESIDENT: Yes.

PN957

MR WOOD: So really the only point of today is the interim order.

PN958

THE SENIOR DEPUTY PRESIDENT: That's right.

PN959

MR WOOD: The interim order is an order to stop the ballot.

PN960

THE SENIOR DEPUTY PRESIDENT: I should say that' sight, that's as I understand all I could do today quite frankly.

PN961

MR WOOD: I think my learned friend Mr Fetter said as much, he didn't say it in those words.

PN962

THE SENIOR DEPUTY PRESIDENT: He said we'd do the rest of the orders if we could get them today.

PN963

MR FETTER: Sorry to interrupt but we have submitted that it was our view that you had made findings about Telstra's conduct in bad faith already in your decision, if we are right about that then we say it's time we had the statement follow it - but we may be misreading your Honour's decision.

PN964

THE SENIOR DEPUTY PRESIDENT: I think I said that on a fair reading of the material that had been provided it would appear that there was. I didn't use the word "bad faith" but it appeared that there had been a change in the course that Telstra had actually indicated it was going to take.

PN965

MR WOOD: If your Honour went beyond that that would of course be a gross denial of nature justice to my client.

PN966

THE SENIOR DEPUTY PRESIDENT: I haven't heard Telstra on that.

PN967

MR WOOD: Yes, your Honour. In relation to the interim order sought, the jurisdiction in relation to the making of the interim order can be threefold. One is clause 26.6, the other is clause 26.8 and the third is the protected jurisdiction of the Commission, if such a jurisdiction exists, and most of our written submissions are directed to that and assuming such a jurisdiction exists why an order shouldn't be made. I will come to that at the end your Honour. Can I deal with the two main forms of jurisdiction which the unions rely upon, Mr Fetter said the two groups to the Commission's powers when he appeared on 8 September, that is clause 26.6 and clause 26.8. In relation to clause 26.6 we would adopt your Honour's observations that agreement is necessary and you don't get anywhere without agreement.

PN968

That is there is a dispute over the application of the agreement constituted by the alleged failure to commence discussions in April, that's the April dispute or autumnal dispute which has been notified and which was notified on 28 August and there were hearings on 1 September and 8 September, an appeal from your Honour's decision, attempted to stay yesterday which failed and a hearing today in relation to that dispute. Your Honour, before saying anything more about that dispute can I differentiate between two things which are sometimes confusing. That is the dispute over the application of the agreement and the facts that give rise to the dispute, they are not the same thing. The facts which give rise to the dispute could give rise to a whole range of rights and obligations and remedies, both in this place and in other places.

PN969

Those same facts give rise to a dispute over the application of the agreement, a dispute we have relevantly conceded for the purposes of this jurisdictional hearing. It might be the case that no breach of clause 3.2 would be proved if the facts which are said to give rise to the dispute over the application of the agreement are ultimately brought in a court for a court to test. The facts which give rise to the dispute over the application of the agreement are facts which may give rise to other rights but not necessarily so, and that's a consequence of the fact that a dispute, because it is simply two parties arguing over the consequences or the implications of those facts, is necessarily larger than the facts which might constitute a breach of the agreement or whatever provision is relied upon.

PN970

That's the first point to make your Honour. The second, and this relies upon or is based upon what His Honour the President said yesterday. It is important to differentiate between two things: jurisdiction and power. Another word for jurisdiction is the source of power, and those are the words His Honour used in his decision yesterday, he used in argument yesterday and "source of power" means jurisdiction, and without a source of power, that is without jurisdiction one doesn't have any powers because there is no source or not jurisdiction. It's self-evident I know, your Honour, but His Honour made that point yesterday in argument referring to the possibility of a marital dispute being agitated before the Commission.

PN971

At paragraph 251 of the transcript, which I think you have there your Honour, he put that proposition to - he says,

PN972

Isn't it a potential problem here that the powers in section 111 of whichever Act, it probably doesn't matter much, are not powers at large. They have to be exercised in the context of or …(reads)… having at the moment between the exercise of those powers and the particular context with which we are dealing.

PN973

Your Honour, can I just make it clear that in terms of the discussion we have, we have to be precise about the terms that we use, and when we are talking about the source of power, i.e. jurisdiction, we refer to that, and when we talk about the powers that may be exercised, once jurisdiction is assumed or attracted then we are talking about a secondary characteristic. We have got to put the horse before the cart. We have got to have the jurisdiction or the source of power before we have the power.

PN974

THE SENIOR DEPUTY PRESIDENT: Yes.

PN975

MR WOOD: That is a point that is completely glossed over by the applicants and the intervener in this case. They do not come to terms with the fact that there is in fact no source of power, no jurisdiction to allow power to be exercised. Can I deal with that proposition in this way, your Honour, by reference to words that have been bandied about in the transcript and there have been three of them, rights, relief and remedy. Power and jurisdiction interact. In relation to a claim for relief or claim for a remedy, the first thing one must show in any statutory tribunal is that there is jurisdiction to grant that relief or remedy, that is the fundamental basis upon which everything flows up to the point of obtaining relief or remedy, jurisdiction, that is a source of power.

PN976

The second thing one must then show is that there are powers in that body as a consequence of that jurisdiction and they can be shown in a range of ways, but it follows in what we have just observed about the cart following the horse. The third point, which is a very important point, is that the power which is identified as following from jurisdiction must attach to or be attracted by the jurisdiction. That is it's not every power that you have that is necessarily attached to or attracted by the jurisdiction. The jurisdiction will tell you what sort of powers are attracted to or attached to it, and those were the words used by Guidice J yesterday, he used the words "attached to", the power must attach to a jurisdiction. Another way of saying it is the way Lawler DP said it in the Telstra decision which is reported at PR 93 3892 2 July 2003. I think you have a copy of that your Honour.

PN977

THE SENIOR DEPUTY PRESIDENT: You provided a copy of that yes.

PN978

MR WOOD: He says,

PN979

The Commission may only exercise it's powers -

PN980

THE SENIOR DEPUTY PRESIDENT: Whereabouts is this, sorry?

PN981

MR WOOD: Paragraph 31 your Honour.

PN982

THE SENIOR DEPUTY PRESIDENT: Yes.

PN983

MR WOOD:

PN984

The Commission may only exercise it's powers when the exercise of those powers is within it's jurisdiction. Put another way, the Commission's powers are subject inter alia to it's jurisdictional constraints.

PN985

That is that the powers that the Commission has must be attracted by or attached to the jurisdiction which is being invoked. If one looks at paragraph 34 of the Telstra decision which was the appeal from Lawler VP's decision at tab 6 of the cases, your Honour, which is PR 94 0569 Full Bench 18 November 2003.

PN986

THE SENIOR DEPUTY PRESIDENT: Where did you say I'd find that?

PN987

MR WOOD: Sorry, tab 6 your Honour.

PN988

THE SENIOR DEPUTY PRESIDENT: Yes.

PN989

MR WOOD: Paragraph 34,

PN990

There was a suggestion the Commission rejected the suggestions that section 111(2) does not make section 111(1) powers available to the Commission when it is settling disputes over the application of an agreement

PN991

That is that decision stands for the proposition that the section n111 powers are attracted by or attached to the jurisdiction which is being invoked. So you have got jurisdiction basal, the next thing is powers and then you assess at the third level the type of power which is attracted by or attached to the jurisdiction. The fourth level of this analysis is that any such power which is attracted by or attached to the jurisdiction can only be exercised for the purposes of the jurisdiction, that is even if you have 111 powers you can only exercise it for the purposes of the jurisdiction that is being invoked. That's all the Census decision stands for. If you have got powers in conciliation, well you can exercise them for the purposes of conciliation but not for other purposes, that is the matter of the content of the agreement. That's perfectly explicable and when one understands the cases in that fashion, the way Lawler VP put that fourth point is just in a slightly different way but it's the same point, he says at 31,

PN992

Put another way, the Commission's powers are subject inter alia to it's jurisdictional constraints.

PN993

That is, you have got to exercise the powers for the purpose of the jurisdiction.

PN994

THE SENIOR DEPUTY PRESIDENT: Yes.

PN995

MR WOOD: Then we come to the point your Honour - before I move from remedy and relief can I just say one other thing about right. A right must be analyzed in that same fashion as I have analyzed a relief or remedy, a claim for relief or remedy. That is you have jurisdiction first, power second, the particular power which is attracted by or attached to the jurisdiction, third, and fourth, that that power must be exercised in accordance with the jurisdiction, that is to use the phrase that is sometimes used, the power is conditioned by the jurisdiction. The only difference between a right and a relief or remedy in terms of that four part analysis is there is another step to a right, that is you have standing to do all those things.

PN996

So you can stand up and say, I turn up here today and I ask you to find jurisdiction for me in order that you give me the relief or remedy I seek. Without the right to stand up there and argue that point or ask for that relief or remedy, you can't. The jurisdiction is invoked in some other way. All that right is is the right to make application, and so it becomes the first part of the process, a right to make application to have jurisdiction established, power then follows the jurisdiction, only those powers which are attached to or attracted by the jurisdiction, and lastly the powers must only be exercised in accordance with the jurisdiction, that is for the purpose of the jurisdiction.

PN997

THE SENIOR DEPUTY PRESIDENT: That is where we are at at this stage.

PN998

MR WOOD: Yes, your Honour.

PN999

THE SENIOR DEPUTY PRESIDENT: There is a right as I found - well the Full Bench might disagree with me and you disagree with me, that there is a right under 26.8.

PN1000

MR WOOD: Yes.

PN1001

THE SENIOR DEPUTY PRESIDENT: The question then is where does the jurisdiction come from to exercise any powers that might be available under the current Act or as related to section 170LW by way of the transitional provisions, part 7.

PN1002

MR WOOD: Yes, your Honour, in one sense that is quite right that where we are today is if one looks through the prism of a right, the applicants have the right to make application and they did. The interveners have the right to make application for intervention and that was granted, and your Honour has got to the first stage of the process by ascertaining that your Honour has jurisdiction under clause 26.8, and to an extent I can't quibble with that because that's the subject of a finding. But can I just make this observation about what the unions say today and what they said yesterday before Guidice J in defending the stay on that exact point. What they say today, they say at clause 26, this is the exact words of Mr Fetter,

PN1003

Clause 26.8 is an independent source of power.

PN1004

That is what I understood the unions to be arguing for on 8 September and that is what I understood your Honour to have found, contrary to our submissions.

PN1005

THE SENIOR DEPUTY PRESIDENT: That is what I understood myself to have found.

PN1006

MR WOOD: Yes, your Honour. We are all in agreement at the Bar table and on the Bench about that, apart from the fact that Guidice J didn't find that's what you found for the purpose of the stay application. What happened, your Honour, and can I just deal with the decision at paragraph 9 and 10 of the decision of Guidice J yesterday.

PN1007

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1008

MR WOOD:

PN1009

There are two views as to the import of the Commission's position. The first is that the Senior Deputy President has decided that clause 26.8 is a separate source of power to settle disputes over the application of the agreement.

PN1010

That's the proposition that Mr Fetter says that you have found and you say you found and we say - - -

PN1011

THE SENIOR DEPUTY PRESIDENT: I agree with his second proposition I think it is.

PN1012

MR WOOD: Sorry, your Honour.

PN1013

THE SENIOR DEPUTY PRESIDENT: That I have found that there is a way to jurisdiction through 26.8, but first of all it needs to be identified in the new Act or in the related parts of the old Act to section 170LW that there is jurisdiction to exercise powers that are sought to be exercised under section 111.

PN1014

MR WOOD: Very well, your Honour, if your Honour has found that the Commission can hear the parties without the requirement of the consent in clause 26.6 as to what other powers might be exercised under the Act then we can't give any - - -

PN1015

THE SENIOR DEPUTY PRESIDENT: That's right, that's what I say clause 26.8 stands for.

PN1016

MR WOOD: I can't have any - - -

PN1017

THE SENIOR DEPUTY PRESIDENT: That's what I said before when you said we've come to the - well, when you were talking about a right to make an application what I am saying is that under 26.8 the parties have a right to make an application, the question is whether there is jurisdiction under the existing Act or related parts of the old Act.

PN1018

MR WOOD: Then the only point between us, your Honour, on that construction of your Honour's reasoning is the question really of a procedural nature which doesn't need to detain us here today about whether such a right can be exercised nun pro tunc as it were by Mr Fetter standing up here without filing any documents in the Commission, saying I identify this section, this section and this section. Now presumably you can given the urgency of the matter, we're not gong to make him go and file a document and all that sort of stuff, but - - -

PN1019

THE SENIOR DEPUTY PRESIDENT: But all I understand Mr Fetter to have put so far is that section 111 provides the source of powers for me to deal with the dispute.

PN1020

MR WOOD: Yes, your Honour, but he also said clause 26.8 is an independent source of power, that is picking up the exact words of Guidice J and exactly when this was put to the unions' advocate yesterday, Mr Moore, Mr Moore adopted the exact construction that your Honour has just adopted, that is that it's not an independent source of power.

PN1021

THE SENIOR DEPUTY PRESIDENT: It's not an independent source of power, it's an independent route by which a party may apply to the Commission for resolution of a dispute, provided that there is jurisdiction within the Act itself to deal with that matter.

PN1022

MR WOOD: It's not for the resolution of dispute, your Honour, that we would say with respect, it is in relation to the facts which underpin the dispute.

PN1023

THE SENIOR DEPUTY PRESIDENT: Sorry, yes.

PN1024

MR WOOD: On that basis, your Honour, can I just take your Honour to paragraph numbers 299 to 301 of the transcript.

PN1025

THE SENIOR DEPUTY PRESIDENT: That's the transcript before - - -

PN1026

MR WOOD: Before Guidice J yesterday.

PN1027

MR FETTER: Your Honour, I'm sorry to interrupt here, to the extent that
Mr Wood is taking you through what in light of your Honour's comments just now might be a misapprehension on our part as to the grounds on which your Honour's decision was made on Tuesday.

PN1028

THE SENIOR DEPUTY PRESIDENT: But your advocate before His Honour articulated it in the way in which I had said it basically.

PN1029

MR FETTER: Yes, your Honour.

PN1030

THE SENIOR DEPUTY PRESIDENT: And His Honour accepted that.

PN1031

MR FETTER: That's right, your Honour, so to the extent that my submissions under paragraph 1 today are a mis-reading of your judgment on Tuesday, then we don't need to rely on that so we can leave that to one side.

PN1032

THE SENIOR DEPUTY PRESIDENT: Paragraph 1 of your submissions?

PN1033

MR FETTER: Paragraph 2 of my outline of argument.

PN1034

THE SENIOR DEPUTY PRESIDENT: Yes, right.

PN1035

MR FETTER: We had understood that to be the correct basis of your Honour's decision, but in light of your confirmation that it is the second proposition put by the President, then I would need to put the arguments which appear under paragraph 3 to you, which I am happy to do in reply, because that is the argument we have about the independent route to the Commission. But I certainly, your Honour, hadn't understood that - - -

PN1036

THE SENIOR DEPUTY PRESIDENT: But that doesn't - and again I mean we'll perhaps wait until your reply, that still doesn't - there is no other provision that you take me to other than section 111 is there?

PN1037

MR FETTER: Well, your Honour, just to foreshadow the reply, it will be that the Commission has inherent jurisdiction, that's the jurisdiction point, to preserve it's ability to conciliate the dispute. So the powers either arise by implication from the statute - sorry the jurisdiction either arises by implication from the statute in our correct reading of your Honour's decision suggests clause 26.8 of the agreement, so we would submit that brings section 170LW into play. If Mr Wood is content I can actually put that submission to you quite briefly and then - - -

PN1038

THE SENIOR DEPUTY PRESIDENT: Mr Wood, would you be assisted in your submissions if that was done? It seems that Mr Fetter has put his submissions on a misapprehension of what the decision that I gave initially stood for.

PN1039

MR WOOD: Your Honour, you can never say that you never learn anything, so from that perspective. But before I hear from him on that point can I just clarify this absolutely, your Honour. These proceedings were proceedings that were initiated by the three applicants and the unions intervened in them. They were proceedings that sought orders in relation to a dispute over the application of the agreement constituted by clause 3.2.

PN1040

THE SENIOR DEPUTY PRESIDENT: Initially 3.2 and 26 point - yes.

PN1041

MR WOOD: There being 27 has been dropped, so we just have a dispute which has - they were entitled to seek an order and the order they sought was on what I might call the big ballot, the ballot of 11,000 employees by way of final order. To truncate the need for findings in relation to all the independent jurisdictional elements in relation to that application and to truncate the need for findings in relation to merit, we took a very narrow jurisdictional point, a jurisdictional point that your Honour has partly ruled on last Monday, Tuesday, and will partly rule on today.

PN1042

THE SENIOR DEPUTY PRESIDENT: It is expected I will but I anticipated we might have heard some evidence today about the facts that gave rise to the dispute.

PN1043

MR WOOD: Yes, your Honour. Can I just say what has happened, if you like this dispute was started by the applicants and interveners initiating the dispute.

PN1044

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1045

MR WOOD: On top of that we have moved for a jurisdictional finding of a preliminary nature which we say will prevent the Commission having to deal with the overall applications made by the unions. On top of that the unions have by their application on Thursday, that is an application within these proceedings, sought an interim order to protect the jurisdiction that they have originally invoked to ultimately have the final order they seek made. That is the reason that I let Mr Fetter go first today is because properly his application for interim relief is more urgent than my application for a preliminary finding for jurisdiction.

PN1046

So he went first and he announced that there were two bases upon which he seeks the Commission to find jurisdiction for the purposes of granting an interim order, that's why we're here on Saturday at 12.30. If he now wants to say there are three bases we should be given that opportunity, your Honour, because it's his application for interim relief made on an urgent basis and he should be able to persuade your Honour that there is indeed a third bases for the exercise of that jurisdiction. It is the type of jurisdiction that we have referred to but he should have that opportunity to say that, but I just wanted to make it clear that that is what we are actually doing and that is why I am not standing up and fighting about Mr Fetter being given this opportunity because it's his application today for interim relief.

PN1047

THE SENIOR DEPUTY PRESIDENT: I must say I understood that today the unions and the ACTU, the intervener, would identify for me where the jurisdiction arises under the current Act or the extent that it may apply to the previous Act, the pre-reform Act.

PN1048

MR WOOD: Yes. That is in relation to our application, that's right.

PN1049

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1050

MR WOOD: As part of making the claim for interim relief he will no doubt do that, but I thought because his application was more urgent than ours I should let him go first in relation to that and then I would deal with both the continuation of our application and response to his interim application and then he could go next. I hope it doesn't make it too confusing.

PN1051

THE SENIOR DEPUTY PRESIDENT: No, that's fine.

PN1052

MR WOOD: I think it's proper that if they say there is something urgent they should go first.

PN1053

THE SENIOR DEPUTY PRESIDENT: I agree, that is quite proper, yes.
Mr Fetter, what is the third ground?

PN1054

MR FETTER: Your Honour, before I set out the third ground I just again stress that on our reading of the AMRS case that I have handed up to your Honour, there is nothing that precludes you from finding additional grounds in addition to the one which you found on Tuesday to support your exercise of discretion.

PN1055

THE SENIOR DEPUTY PRESIDENT: Be that as it may, but you might recall when we started off what I was trying to clarify with you is that you agreed or you didn't agree that 26.6 is the gateway to the mediation and conciliation provision and that if you don't get agreement from the other party to open that gate then that is the end of that point. What you then have is the 26.8 point and you need then to identify in what part of the current legislation or to the extent that it applies, the pre-reform legislation, there is jurisdiction for the Commission to deal with the type of dispute you have got.

PN1056

MR FETTER: Yes, your Honour. I will set out the independent route for you but - - -

PN1057

THE SENIOR DEPUTY PRESIDENT: Well, Mr Wood might take objection to you using the word "independent".

PN1058

MR FETTER: Sorry, sir, we have come before you today, your Honour, suggesting three sources of jurisdiction and we say it's open to you, even though you have essentially knocked out the first route, which is noted in paragraph 2 of our decision - of our outline of argument. It is open to your Honour to adopt either the first route in paragraph 2 as to supplement your decision or the route that I have suggested in paragraph 4 to supplement your decision, if your Honour felt that it was necessary.

PN1059

I note simply that if you were minded to adopt any additional grounds upon which to proceed in terms of jurisdiction, then it would be open to Telstra to challenge that if it felt that was wrong and in fact seek a stay of it's order. So before I launch into what we say is this ground under paragraph 3 I just say that our submission is it doesn't preclude - the following arguments won't preclude your Honour from supplementing your decision of Tuesday with the sorts of arguments I have already put to you today. I make the following submission in addition to everything that has gone before and we stand by the submissions about the route through clause 26.8 and also the route through clause 26.6. Your Honour, I have just received a note that my instructors would like a brief adjournment, can I ask for one for five minutes.

PN1060

THE SENIOR DEPUTY PRESIDENT: Would it be convenient to have the luncheon adjournment now for half an hour?

PN1061

MR WOOD: Yes, from our point of view your Honour.

PN1062

THE SENIOR DEPUTY PRESIDENT: Is that convenient from your point of view?

PN1063

MR FETTER: Yes, your Honour.

PN1064

THE SENIOR DEPUTY PRESIDENT: 30 minutes, half an hour, we'll say until quarter past one.

PN1065

MR FETTER: Yes, your Honour.

<LUNCHEON ADJOURNMENT [12.41PM]
<RESUMED [1.22PM]

PN1066

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Fetter.

PN1067

MR FETTER: Thank you, your Honour. Over the course of lunch it has become apparent I think to me that what I need to do is just present the three grounds on which we have been submitting that the Commission has jurisdiction to proceed and to consider what your Honour might say about that. I indicated earlier, your Honour, that we were certainly under a misapprehension as to the grounds on which you made your decision on Tuesday.

PN1068

THE SENIOR DEPUTY PRESIDENT: I thought I actually gave an example of the sort of substantive power that might be necessary, I think I referred to
section 135.

PN1069

MR FETTER: I know, we were clear on power but on jurisdiction your Honour.

PN1070

THE SENIOR DEPUTY PRESIDENT: That's what I mean, jurisdiction, where does jurisdiction arise.

PN1071

MR FETTER: Yes, your Honour. But in the end, your Honour, we don't seek to rely on section 135 of the pre-reform Act, but I am about to give you an argument about - - -

PN1072

THE SENIOR DEPUTY PRESIDENT: I don't know that you could have anyway.

PN1073

MR FETTER: It's not the sort of order that we want anyway, but your Honour we maintain that we have had three grounds upon which we say the Commission has jurisdiction, and we maintain we attempted as best I could as a junior advocate to put it to you on Monday. Our reading now of your decision, now that you have clarified what you meant, makes it clear that you haven't ruled on the first ground that I have been putting to you or on the third ground.

PN1074

THE SENIOR DEPUTY PRESIDENT: Which one is that?

PN1075

MR FETTER: That's in paragraph 2 of the outline of argument, and I don't believe you have ruled on ground 4, but I now take what the President has said with your remarks to mean that in the decision on Tuesday you have left it open that you see that there is a way through under the second ground set out in paragraph 3, but because we haven't had a ruling about the other two grounds I just want - because I have spent two hours already setting out those two grounds - for a final time going once, going twice, just to explain what I mean and then straight on to the ground which we have reserved our rights in respect of in every stage of the proceedings but we did not understand on Monday, your Honour, or yesterday even that that is where your thinking was but we now understand it.

PN1076

THE SENIOR DEPUTY PRESIDENT: But in point 2 there of your submissions, you say,

PN1077

The union maintain their primary submission that the source of the Commission's jurisdiction to make orders is clause 26.8.

PN1078

You mean there, do you, that that is the source of the jurisdiction, that itself is the power?

PN1079

MR FETTER: No, your Honour, in a sense argument one in paragraph two and argument three in paragraph four are the same, they are - that is that the Commission has power under section 170LW, ultimately of the Act, to accept a private conferral of jurisdiction by the parties.

PN1080

THE SENIOR DEPUTY PRESIDENT: I don't think there is any dispute about that.

PN1081

MR FETTER: No, your Honour, but we say then so that 170LW then directs you to the terms of the private conferral of parties and we understood your Honour's decision, but we have now been corrected, that you had found that the actual words of clause 26.8 were sufficient to confer power on the jurisdiction to hear the case.

PN1082

THE SENIOR DEPUTY PRESIDENT: The source of jurisdiction.

PN1083

MR FETTER: Yes, as the source. We understood your Honour to have ruled that as a matter of interpretation clause 26.8A should be read almost as if the words there were "the parties have the right and the Commission has the power to conciliate and arbitrate."

PN1084

THE SENIOR DEPUTY PRESIDENT: I see, yes. What it means is the parties have the right to access the jurisdiction of the Commission through 26.8, but it must identify a substantive power within the current legislation, so to the extent that it might occur in the pre-reform legislation by way of relationship to 170LW or one of the other preserved provisions has substantive power.

PN1085

MR FETTER: Your Honour, we press the submission, we don't seek a ruling on the spot because you will see in our submissions under ACTU2 that we set out in a lot of detail why we say that that is a valid construction of clause 26.8A given that the task of the Commission or indeed the court is to construe the ordinary words of an agreement in their context, and in paragraph 8 of ACTU2 I suggested there that the context of the agreement supports the interpretation that we press on you that it's not just a throwaway line, that the words are intended to do some work.

PN1086

THE SENIOR DEPUTY PRESIDENT: That’s right, but look at the words themselves, it says,

PN1087

The parties may exercise their rights under the Workplace Relations Act.

PN1088

Your rights unde the Workplace Relations Act must stem from some substantive power for you to invoke the jurisdiction of the Commission in relation to it.

PN1089

MR FETTER: Yes, your Honour, there are two ways of interpreting 26.8A, we concede, one is that it's in the nature of a note to the parties, advising them that they have right outside the document, so rights as Mr Wood suggested on Monday to take unfair dismissal proceedings, rights to sue under contract, although they are not mentioned there, so it is merely advisory and does no work. The submission that I believe I put to your Honour on Monday was that in interpreting a document between private parties the approach of the courts is to look at the objective intention of the parties including with reference to surrounding circumstances where it is necessary for the purposes of construing a clause or even implying new words into them, the rest of the document and the objection context. It has been our contention that these words do not appear in the document by accident, that these are sophisticated industrial players who wanted those words to do some work. The particular reason that you can see that they need to do work is because of the deficiencies of clause 26.6, namely that one party may withhold consent, perhaps unreasonably, capriciously - - -

PN1090

MR WOOD: Your Honour, we are just going over everything that was put this morning.

PN1091

THE SENIOR DEPUTY PRESIDENT: This has been put to me.

PN1092

MR FETTER: Yes, your Honour, all I say is we press the submission.

PN1093

THE SENIOR DEPUTY PRESIDENT: Yes, I understand your argument about that.

PN1094

MR FETTER: Thank you, your Honour, so we do seek - although not immediately a ruling about our first and third sources of jurisdiction. Turning to the second one which is obviously of interest to your Honour because it's the specific ground that was adverted to in your decision now that we properly understand what your Honour meant. We do say that there is power for the Commission to act under the Workplace Relations Act but independently of clause 26 and we put it this way. The agreement between the parties contains the well known obligation in clause 3.2 to negotiate towards a replacement to the agreement. There is a dispute between the parties as to first to fall the meaning of the clause and second of all whether given the dispute as to meaning, whether there is a breach of the clause.

PN1095

On the basis of that dispute the parties have notified the Commission under section 170LW the dispute and there is now a valid proceeding before the Commission. In dealing with that proceeding the Commission, we suggest, has the powers available to it under the Workplace Relations Act in relation to a proceeding that comes before it where the jurisdictional facts giving rise to the proceeding are themselves in dispute, and it is a fairly limited jurisdiction which is the jurisdiction for the Commission to hear the matter irrespective of what the parties may have privately contracted, whether in a collective agreement or otherwise, and it is also a power for the Commission to make all procedural orders necessary for it to preserve it's jurisdiction to further hear the dispute and decide whether or not it has substantive jurisdiction to deal with the dispute.

PN1096

THE SENIOR DEPUTY PRESIDENT: The difficulty with that is that Mr Wood says look, we concede for the purpose of this jurisdictional point that all of the jurisdictional facts are satisfied.

PN1097

MR FETTER: That's' right, your Honour, so in light of that concession we say it's essentially conceded that there is this limited jurisdiction that all courts and statutory tribunals in this nature have to issue holding orders to freeze the subject matter of the dispute pending further investigation as to whether you have substantive jurisdiction to do anything about it. Frankly, your Honour, if you were to rule against us then on grounds one and three that we say you have substantive jurisdiction, then the applicant's would have nowhere to go. But we say first of all you have jurisdiction, but more importantly you need to satisfy yourself that you have jurisdiction and we doubt very much, with all due respect to your Honour, but in light of the parties' extensive arguments and submissions and cases submitted if you could do that by Monday.

PN1098

So in order to preserve your capacity to even determine fully and finally our arguments one and three about whether you have jurisdiction under section 170LW and clause 26 of the agreement, you need and have the power to issue procedural orders freezing the subject matter of the dispute. If it were otherwise, your Honour, the dispute would evaporate and you would have - as I said the parties would be significantly prejudiced in the event that you did find that a dispute existed and that you had the power to hear the dispute. So to put it another way and to take your Honour to the relevant sections, we are not sure if we should press the position that the power that I am speaking of, the jurisdiction arises under the old Act or the new Act, but before you there is a proceeding under section 170LW. You don't know at this stage whether or not that proceeding is within the jurisdiction of the Commission, you have to decide that, but pending your decision - - -

PN1099

THE SENIOR DEPUTY PRESIDENT: But you haven't identified for me a jurisdictional provision or a provision in either of the Acts that actually gives me jurisdiction. For example in the new Act there are provisions for dispute resolution. One of them is a model dispute resolution provision for example, but you don’t get anywhere with that because again you need the agreement of the other party to bring that sort of dispute before the Commission.

PN1100

MR FETTER: Yes, sir.

PN1101

THE SENIOR DEPUTY PRESIDENT: In the absence of agreement of course there is a process by which you can go through the registrar and so on, but that's just an example of the sort of things I am saying you need to identify in the current act or in the previous Act that gives me jurisdiction to do something like that.

PN1102

MR FETTER: Yes, your Honour, I would take your Honour then to begin with to the new act, to section 111(1).

PN1103

THE SENIOR DEPUTY PRESIDENT: But that doesn't confer jurisdiction.

PN1104

MR FETTER: Well, your Honour, I am suggesting that it is within the inherent jurisdiction of the Commission as constituted under statutory - - -

PN1105

THE SENIOR DEPUTY PRESIDENT: I don't know the Commission has any inherent jurisdiction. Jurisdiction as I said in the previous decision is entirely dependent on statute.

PN1106

MR FETTER: Yes, your Honour, but because we didn't think you were interested in the second argument, I don't have the relevant case law for your Honour but my understanding is there is a string of cases of the highest authority that proved even a tribunal of statutory jurisdiction has by implication in the express conference of jurisdiction made by the parliament, the inherent jurisdiction to hear a proceeding as to whether or not the court has jurisdiction.

PN1107

THE SENIOR DEPUTY PRESIDENT: Of course, yes.

PN1108

MR FETTER: That is the source of the jurisdiction that we are asserting.

PN1109

THE SENIOR DEPUTY PRESIDENT: But that is the purpose of what this hearing was today, to see whether or not I have got jurisdiction.

PN1110

MR FETTER: If I can take it that you accept the proposition that there is limited jurisdiction, the question we can move to, the issue of whether the facts of this dispute bring us within that inherent limited jurisdiction, because it is our submission, your Honour, that essentially a notice has been put into the Commission under section 170LW.

PN1111

THE SENIOR DEPUTY PRESIDENT: It's not actually 170LW, a notice has been given to the Commission in the form of a pre-reform agreement that included provisions that were allowed under 170LW.

PN1112

MR FETTER: Sorry, your Honour, I don't catch that last part.

PN1113

THE SENIOR DEPUTY PRESIDENT: It's not a significant point, I'm just saying the application itself is not technically under 170LW.

PN1114

MR FETTER: I'm not sure if necessarily the right form was put in your Honour.

PN1115

THE SENIOR DEPUTY PRESIDENT: I am not suggesting the form is wrong.

PN1116

MR FETTER: Yes, there is some debate about it, but irrespective of which Act it is under there is a proceeding before the Commission and the Commission has got to decide whether it's a proceeding that is within jurisdiction, and within the normal course of events the Commission would convene the parties together and there would be hearings as to that and there would be a ruling as to jurisdiction. I think properly understood the course of proceedings to date has meant that you haven’t made yet a finding as to jurisdiction, you have perhaps only hinted to us.

PN1117

THE SENIOR DEPUTY PRESIDENT: I have said that you have a right under 26.8 to apply for assistance in resolution of a dispute to the extent that you can find jurisdiction in the current Act or the pre-reform Act to support the claims.

PN1118

MR FETTER: Yes, but then I know I shouldn't ask questions of the Bench but in your Honour's ruling that there was power under 26.8 to approach the Commission for - to exercise it's powers or jurisdiction under the Act, is it within the scope of that ruling that that would include the sort of inherent jurisdiction that I am arguing for?

PN1119

THE SENIOR DEPUTY PRESIDENT: I'm not aware - I mean certainly the Commission can inquire into the facts to establish whether or not it has jurisdiction. But in this case what I need to know is what part of the Act would I be exercising the jurisdiction under?

PN1120

MR FETTER: Your Honour, it has got to be our submission that there isn't an express provision in the Act that says the Commission may in advance of determining whether it has jurisdiction exercised limited jurisdiction to hear the parties and do all things necessary for the purposes of that hearing, but we submit that it is not surprise that that doesn't appear expressly in the Act because of the longstanding understanding that courts and statutory tribunals have exercised quasi-juridical functions like this one does has that jurisdiction. So if your Honour's ruling requires me to point to a particular provision in the Act that is the source of jurisdiction then it can't be done, but I wouldn't have understood your Honour's ruling as ousting the Commission's normal jurisdiction. This limited jurisdiction, in the language of the High Court, to inquire into whether it actually has substantive jurisdiction. I concede it is not from the terms of the Workplace Relations Act - - -

PN1121

THE SENIOR DEPUTY PRESIDENT: What sort of inquiry do you suggest I should make to establish whether I have got substantive jurisdiction?

PN1122

MR FETTER: In this case we submit under our first and third arguments, which we submit you haven't ruled upon, that you have jurisdiction under section 170LW of the Act to exercise any jurisdiction conferred upon you by the parties and we have suggested two conferrals of power. Clause 26.6 we suggested is a conferral of power where we read the clause as being controlled by a notion of good faith and we have also suggested clause 26.8.

PN1123

THE SENIOR DEPUTY PRESIDENT: Just on that point, do you suggest then under 26.6 any of the parties to the agreement can apply to the Commission for relief, independent of agreement of the other party to make that application. In other words, are you saying the agreement doesn't only apply to the selection of a mediator or it doesn't apply to anything other than the selection of a mediator, is that what you're saying?

PN1124

MR FETTER: No, your Honour, I'm just saying that in reading the route to mediation we don't read consent as being a reference to consent given or withheld on any grounds, we think it is controlled by an implied notion of good faith and I have already set out why it would lead to absurd results if that were otherwise. Because we haven't had yet a ruling on this argument about 26.6 we submit that the Commission must have limited jurisdiction to consider it and within the scope of that limited jurisdiction is the power to freeze the status quo while your Honour considers the matter. If it were otherwise and you found for us, for instance at some point next week, what is the point then of going to mediation if our interests have already been prejudiced.

PN1125

THE SENIOR DEPUTY PRESIDENT: Is there a provision in the Act that suggests an implied notion of good faith in bargaining?

PN1126

MR FETTER: No, we don't rely on the Act your Honour, solely on the four corners of the agreement. So, your Honour, as I have suggested we don't unfortunately have any case law to hand up to you today but I could provide it to your Honour shortly after the proceedings adjourn today, but then if the flow of argument under this second thing is to be completed we say that the source of jurisdiction is inherent to the Commission to decide whether or not it has substantive jurisdiction to hear and determine our claim.

PN1127

If you were to decide that on your interpretation of clause 26.6 that the consent of both parties is always required, even where one party is acting completely capriciously, then we would be barred from proceeding and the Commission would have no jurisdiction under that clause, and if you also ruled that clause 26.8 was a mere note to the parties and did no work we would be barred too, and if that was your ruling then we would concede that there was no jurisdiction to make the three final orders that we are seeking from you, namely orders to participate in conciliation, a ballot of all the workers and also a statement that Telstra has acted in good faith. But the fourth order, the interim order, we say is open to you on all three bases.

PN1128

If you are prepared to rule today that you accept our arguments about jurisdiction under clause 26.6, I have submitted that you have power to make that order. If you rule that you have jurisdiction under clause 26.8 you have power. But even if we are wrong about that or if your Honour is not prepared to make a ruling today, we do press this second ground of jurisdiction, your inherent jurisdiction to freeze the status quo pending your full consideration of the matter. Although I said we don't have an express provision going to your jurisdiction to do that, we say that your power to do that is in line under either section 111 of the current Act or perhaps the former Act. Probably nothing turns on it because there is the same power there to make interim decisions, so that's section 111(1)(p) of the current Act and section 111(1)(b)(ii) of the pre-reform Act.

PN1129

We say that it is enlivened either because there is a proceeding before you within the terms of the chapeau to section 111(1), or if Mr Wood is going to say it has got to be a proceeding within jurisdiction and we get into a circular argument then we would be prepared to say that your powers to act don't come from the express terms of the Workplace Relations Act at all but are within, as I said, the implied limited jurisdiction of the Commission to act to preserve it's jurisdiction and so to do all things necessary or convenient for the purposes of that limited jurisdiction. So for instance, your Honour, we would submit that if you did consider that you weren't prepared or in a position to rule today on our arguments number one and three about the substantive jurisdiction, that you could make orders not only freezing the ballot but directing the parties to refrain from taking other action that might prejudice your capacity to act under clause 26 of the agreement, whatever that might be.

PN1130

THE SENIOR DEPUTY PRESIDENT: Thank you Mr Fetter. Yes, Mr Wood.

PN1131

MR WOOD: Thank you your Honour. Your Honour, I think there are three sources of jurisdiction that are relied upon, two of which we knew about today and one of which is new today. So we anticipated in our submissions. In relation to the two that are old, they are 26.8 and 26.6 and your Honour can I say that if your Honour was prepared to rule in relation to whether you had jurisdiction under either of those clauses in the next little while, then I wouldn’t need to make any submissions in relation to the protected jurisdiction, assuming that your Honour ruled in our favour, that is all the facts are assumed for the purposes of the jurisdiction hearing. The only fact of any moment is the identification of some source of jurisdiction, some source of power, some substantive power, those three terms are used interchangeably within the current or former Act, and I asked twice for Mr Moore yesterday to identify such a source of power, such a jurisdiction, such a substantive power and twice he refused to do so, and it turns out at
1.30 today after a week of this Mr Fetter can't identify a source of jurisdiction, a source of power, the substantive power and he says we have got nowhere to go. Well that's been our argument, that's exactly what we say, that's all your Honour has to rule upon.

PN1132

MR FETTER: Sorry, your Honour, we didn't concede that, we have asked you to rule upon, we put that to you.

PN1133

THE SENIOR DEPUTY PRESIDENT: Mr Fetter, let Mr Wood have his turn now.

PN1134

MR WOOD: Your Honour, I don't want to take too much time up on those two points, 26.8 and 26.6, but can I just finish off where I was just before we had a slight change before lunch and at paragraph 299 of the proceedings before Guidice J. Guidice J is putting a proposition to Mr Moore who appeared for the applicant's intervener. Guidice J,

PN1135

I understand your submission, it is useful to know, but I am also concerned to know what your construction is of the Senior Deputy President's findings, in particular the first sentence at paragraph 18 ...(reads)… as to what powers might be available on the basis that he doesn't need the consent of both parties to do that.

PN1136

That when directly asked at the end of the submissions before I got up and replied, that was the proposition that was put to avoid a stay and the decision reflects that at paragraphs 9 and 10 which I took you to before your Honour. Then we get submissions after this decision, paragraph 2 which maintain the proposition that clause 26.8 is a separate source of jurisdiction.

PN1137

THE SENIOR DEPUTY PRESIDENT: You might recall, Mr Wood, when
Mr Fetter got on his feet I tried to clarify the situation with him at that point about 26.6 being a gateway and that we were now looking at 26.8 to find if there was anything in the current legislation or pre-reform legislation whereby we get jurisdiction to deal with it.

PN1138

MR WOOD: Yes, your Honour, that is quite proper having regard to what went on yesterday and your Honour's finding, but 26.8 is not a separate source of jurisdiction.

PN1139

THE SENIOR DEPUTY PRESIDENT: It is a right to bring an application for rights under the Act.

PN1140

MR WOOD: Absolutely, that is all it is and to get back to what I said when I first got up, in ascertaining what your rights under the Act are you have to step through the process, what is the jurisdiction. Jurisdiction comes before power. Horses before cart. What are the extent of the powers that are attracted and how do you exercise the powers?

PN1141

THE SENIOR DEPUTY PRESIDENT: I understood Mr Fetter to concede that there is no specific express provision in the legislation by which he can identify jurisdiction, apart from some implicit jurisdiction to inquire into whether or not I have jurisdiction.

PN1142

MR WOOD: Yes, your Honour, and I say your Honour the only need for you to do that - to embark on that inquiry is whether in the circumstance where your Honour needs a great deal of time to determine facts or to determine some jurisdictional point.

PN1143

THE SENIOR DEPUTY PRESIDENT: There is only one issue I think that
Mr Fetter raised that might give rise to that and that is this idea of a notion of implied good faith. I have asked Mr Fetter to identify for me in the legislation where I would have any jurisdiction to determine that in any event and I don't believe that he has.

PN1144

MR WOOD: I don't think then I need to say anything more your Honour. I don't need to say anything more on 26.8 or anything more on 26.6 and I don't need to say anything about the protective jurisdiction because your Honour is well able, as your Honour sits now - - -

PN1145

THE SENIOR DEPUTY PRESIDENT: Don't feel any constraint, Mr Wood, on anything you might want to say, I am just saying that is the way I see it. If you see it differently then you should say so.

PN1146

MR WOOD: Your Honour, I'm sure you would tell me if there was something that was agitating your mind on that point.

PN1147

THE SENIOR DEPUTY PRESIDENT: So what do you say about the implied jurisdiction, that even if there is an implied jurisdiction there would still need to be some power or jurisdiction itself. If there is an implied jurisdiction to inquire into which I can accept in any event the jurisdictional facts, and then I would need to look at whether or not there is as a matter of fact a lack of good faith on the part of Telstra. The question then arises as where do I get the jurisdiction to do anything about that?

PN1148

MR WOOD: Again there is no answer to that your Honour.

PN1149

THE SENIOR DEPUTY PRESIDENT: All right.

PN1150

MR WOOD: Your Honour, I am just reminded, even if there was a protected jurisdiction that gave your Honour jurisdiction to deal with the matter, there has been nothing put in support of the interim order by the unions by way of evidence. You don't need to get to that point your Honour.

PN1151

THE SENIOR DEPUTY PRESIDENT: There is material before me which I can take into account which hasn't been rebutted, but the point that I am asking about is - well, the point I have asked Mr Fetter about and he hasn't identified it is the jurisdiction that I would have to determine the question of good faith.

PN1152

MR WOOD: Yes, your Honour, well I don’t need to say anything further having regard to the answers.

PN1153

THE SENIOR DEPUTY PRESIDENT: Yes. In all the circumstances I am not satisfied that I have the jurisdiction to make the orders that are being sought at this present time. There is before me material that is suggestive of a lack of good faith on the part of Telstra. However, that has not been investigated fully and there has been no evidence before me by which I can make a final determination in that regard, but even if I could make a final determination in that regard I am not satisfied that there has been identified in the legislation any provision by which the Commission can exercise any jurisdiction in relation to an absence of good faith on the part of one party to a bargaining arrangement to do anything other than continue with their negotiations.

PN1154

MR FETTER: Your Honour, now you have ruled that way we would request your Honour, given what you have before you, that you would at least make a recommendation to the parties.

PN1155

THE SENIOR DEPUTY PRESIDENT: I would certainly make a recommendation to the parties, I don't think Telstra should take any pride in the fact that - - -

PN1156

MR WOOD: Your Honour, can I say we object to that course.

PN1157

THE SENIOR DEPUTY PRESIDENT: I am not making a recommendation, I'm making a statement, Mr Wood.

PN1158

MR WOOD: Your Honour, we would ask that your Honour have jurisdiction to make the statement.

PN1159

THE SENIOR DEPUTY PRESIDENT: I think I can make a statement any time I want to, Mr Wood, whether or not it's got any force or effect is another matter I suppose.

PN1160

MR WOOD: Requiring your status as a natural person that is certainly the case, your Honour.

PN1161

THE SENIOR DEPUTY PRESIDENT: As a member of the Commission I have power to make a statement. I mean this matter has been brought before me, it's been argued at length. It seems to me that Telstra has been invited to participate in proceedings in the Commission, apart from raising the issue of jurisdiction it has done nothing to rebut what has been put by the other parties and in fact it has refused to participate in the proceedings apart from the jurisdictional point.

PN1162

MR WOOD: That last point is not quite right, your Honour, the second affidavit of Mr Fewster rebuts in part what is put by the ACTU.

PN1163

THE SENIOR DEPUTY PRESIDENT: In which part?

PN1164

MR WOOD: In paragraphs 15 to 19 of the second affidavit. That's the affidavit of the - well it's a statement. It attaches an affidavit which is sworn in the Federal Court and that affidavit asserts - - -

PN1165

THE SENIOR DEPUTY PRESIDENT: What number - - -

PN1166

MR WOOD: It's exhibit DF3 I think, it might be DF5 your Honour.

PN1167

THE SENIOR DEPUTY PRESIDENT: DF3 is headed the second affidavit of Darren Vines.

PN1168

MR WOOD: Yes, DF3, your Honour, thank you your Honour.

PN1169

THE SENIOR DEPUTY PRESIDENT: Paragraph 15 is it?

PN1170

MR WOOD: Sorry paragraph 8-19, Mr Fewster says that,

PN1171

Telstra formally invited the unions to a meeting with representatives of Telstra to commence discussions.

PN1172

THE SENIOR DEPUTY PRESIDENT: Sorry, Mr Wood, what paragraph is that?

PN1173

MR WOOD: I'm sorry, paragraph 8 your Honour.

PN1174

THE SENIOR DEPUTY PRESIDENT: You did say. Yes.

PN1175

MR WOOD:

PN1176

During the course of a series of meetings held between 15 May and the end of June both Telstra and Telstra unions put forward a variety of proposals regarding the terms and conditions …(reads)… negotiations would not result in any agreement between Telstra and the Telstra unions, accordingly negotiations came to an end on 17 July 2008.

PN1177

The chronology is then picked up in the applications, your Honour, and I won't take you to the chronology of applications filed by the union, but they start at
17 July '08. Then 15, this is a reference to JBB5 and JBB6 which are documents which were also put in by Mr Walton in these proceedings on 1 September, they are the same documents, and Mr Fewster says that these documents exhibited as JBB5 and JBB6,

PN1178

Are internal confidential documents belonging to Telstra. The documents explored potential options for Telstra in the event that …(reads)… websites of the Telstra unions without the permission or authorization of Telstra.

PN1179

Your Honour, can I just make this point. Both sides have made statements about what they say their respective positions were in relation to the commencement of discussions. At some point perhaps in some tribunal, perhaps, that issue will be resolved. It will be unfair we would say for the Commission to take a view that one view is to be preferred over the other in the circumstances where the Commission has accepted it doesn't have jurisdiction to deal with the matter and to in effect pre-judge the matter, not having heard from either side. That is not a circumstance which would give the Commission any joy, no tribunal likes to be told it doesn't have jurisdiction, but that is just the fact of the matter your Honour.

PN1180

THE SENIOR DEPUTY PRESIDENT: It doesn't trouble me too much
Mr Wood.

PN1181

MR WOOD: Sorry, your Honour, it may be at two o'clock on a Saturday it possibly doesn't, your Honour, but there is a temptation in circumstances where one of the parties to a piece of litigation have asserted that a tribunal shall not further inquire on the matter for the tribunal to not rush to judgment but perhaps make the sort judgment that it might not make having heard the parties fully in relation to the question which makes up - - -

PN1182

THE SENIOR DEPUTY PRESIDENT: I understand that, Mr Wood, all I say is this that in the material before me it is disappointing that Telstra has conducted itself in the way that it has.

PN1183

MR WOOD: Yes, your Honour, well I don't have to say anything more than that.

PN1184

THE SENIOR DEPUTY PRESIDENT: Very well, anything else? The matter is adjourned.

PN1185

MR WALTON: Your Honour, I was wondering if you would be willing to suggest to Telstra what they should do regarding the ballot on Monday and Tuesday and whether they should re-enter negotiations.

PN1186

THE SENIOR DEPUTY PRESIDENT: I have no jurisdiction, Mr Walton. The legislation as it stands gives the parties the rights that they have taken, there is nothing I can do about what the law is, the law is written by parliament, it is simply my role to apply the law as it stands.

<ADJOURNED ACCORDINGLY [2.05PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #ACTU2 - OUTLINE OF SUBMISSIONS DATED 11/09/08 PN582
EXHIBIT #ACTU3 - OUTLINE OF ARGUMENT DATED 12/09/08 PN582
EXHIBIT #(TELSTRA 7) - TELSTRA SUBMISSIONS IN RELAITON TO INTERIM ORDER DATED 12/09/2008 PN627
EXHIBIT #(TELSTRA 8) - TELSTRA OUTLINE OF ARGUMENTS STAY APLICATION DATED 12/09/2008 PN627
EXHIBIT #(TELSTRA 9) - STATEMETN OF DARREN FEWSTER WITH 6 EXHIBITS PN638