C2008/2972, Transcript of Proceedings [2008] AIRCTrans 554 (24 September 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 19128-1

JUSTICE GIUDICE, PRESIDENT

C2008/2972

s.120 - Appeal to Full Bench
Appeal by Telstra Corporation Limited
(C2008/2972)

MELBOURNE

10.03AM, FRIDAY, 12 SEPTEMBER 2008

PN1

MR S MOORE: If the Commission pleases…..

AUDIO MALFUNCTION [10.04AM]

PN2

…..Allied Services Union of Australia and the Australian Council of Trade Unions.

PN3

JUSTICE GIUDICE: Yes, thanks, Mr Moore. Leave is granted in each case.

PN4

Yes, Mr Wood.

PN5

MR WOOD: Thank you, your Honour. Can I just deal with the administrative matters first.

PN6

JUSTICE GIUDICE: Yes.

PN7

MR WOOD: That is the material that we have filed on this day.

PN8

JUSTICE GIUDICE: Yes.

PN9

MR WOOD: I think my learned friend has an objection to your Honour receiving some of that material, so I might just go through it. We are dealing with the non-objection material first. Your Honour should have an appeal book.

PN10

JUSTICE GIUDICE: Yes.

PN11

MR WOOD: Which has all the exhibits tendered before his Honour Senior Deputy President Lacy. It has the reasons for his Honour’s decision on Monday last.

PN12

JUSTICE GIUDICE: Yes.

PN13

MR WOOD: It doesn’t have the applications by the three unions for which my learned friend Mr Moore appears today, and those are all dated 28 August 2008; does your Honour have those? We’ve got copies if you don’t.

PN14

JUSTICE GIUDICE: I don’t have them. It might be useful to have them.

PN15

MR WOOD: I’ll hand them up your Honour.

PN16

JUSTICE GIUDICE: Thank you.

PN17

MR WOOD: Your Honour, the only other thing that might be said to be missing in the appeal book is a letter written by the Commission on 2 September 2008, to which Mr Fewster responded. Mr Fewster’s response was tendered as an exhibit, as exhibit T2 but the letter to which he responded of 2 September from the Commission didn’t find its way into evidence.

PN18

JUSTICE GIUDICE: Didn’t hand in evidence?

PN19

MR WOOD: Sorry your Honour?

PN20

JUSTICE GIUDICE: It wasn’t in evidence?

PN21

MR WOOD: No, your Honour.

PN22

JUSTICE GIUDICE: But everybody had it, I presume?

PN23

MR WOOD: Yes, your Honour, as I understand it, your Honour.

PN24

MR MOORE: I’m not sure actually.

PN25

JUSTICE GIUDICE: No, well do we need it?

PN26

MR WOOD: We may not, your Honour, I’m just trying to complete the record.

PN27

JUSTICE GIUDICE: Yes. Well let’s leave it for the moment.

PN28

MR WOOD: Yes, your Honour. In terms of the materials we filed on the stay, your Honour, we have a statement of Mr Fewster which is dated today. It’s unsigned and has six exhibits. Your Honour might have observed that there have been proceedings relating to the ballot which is scheduled to occur Monday and Tuesday of next week, both in this Commission and in the Federal Court.

PN29

There have been three hearings in the Commission, one on 1 September before Senior Deputy President Lacy, the second on 8 September, also before Senior Deputy President Lacy, where he made the decision which is the subject of this appeal and the application for a stay.

PN30

Last Wednesday, 10 September, there was conciliation in relation to an application before Commissioner Foggo and the further progress of that matter is listed before his Honour Senior Deputy President Lacy tomorrow, Saturday, at 10.00 am.

PN31

The Federal Court proceeding was initiated on Tuesday of this week before his Honour Sundberg J. It was listed on Wednesday the 10th, adjourned to allow the union respondents to put in materials until Thursday the 11th, and his Honour didn’t grant Telstra’s application for interlocutory relief in relation to what it said were false and misleading statements. Materials filed in that Federal Court proceeding are appended to the statement of Mr Fewster, filed on this application for a stay, your Honour.

PN32

JUSTICE GIUDICE: Why do I need all of that, Mr Wood?

PN33

MR MOORE: You don’t need it all.

PN34

JUSTICE GIUDICE: Do I have to read it all?

PN35

MR WOOD: No, your Honour, you don’t have to read it all. There is some very basic background material that we want to take your Honour to, that is found in the affidavit concerning this grievance.

PN36

JUSTICE GIUDICE: All right.

PN37

MR WOOD: So that’s the statement we rely on. I don’t understand my learned friend to be objecting to that part of the statement of Mr Fewster, which sets out the background material. I rather venture his objection is to the latter part of the statement which deals with matters going to the balance of convenience on the stay. I might let my learned friend address your Honour on that.

PN38

JUSTICE GIUDICE: Yes, well the question of your position, Mr Moore, or your client’s position in relation to the statement.

PN39

MR MOORE: Thank you, your Honour. In relation to what my friend refers to as the basic background material, which is the material which is set out from paragraphs 1 through to 6, what we regard as those paragraphs, and also paragraphs 15 to 17, that information tells you, your Honour, about certain background matters and certain other matters which are relevant to balance of convenience on the stay; in particular the matter which is listed at the moment before Senior Deputy President Lacy on Saturday. They are certainly matters which are relevant for you to have, and there’s no controversy about that your Honour.

PN40

The remanning matters, the bulk of the matters dealt with in the statement though go the question of prejudice. Telstra says it will suffer in the event that the Commission grants the interim orders which the unions seek be made tomorrow by Senior Deputy President Lacy.

PN41

Now they are considerations of course which will be germane to Senior Deputy President Lacy’s consideration of that application tomorrow. They are not matters that are relevant to your Honour’s consideration of the stay today. That’s the basis of the objection. It’s not at all apparent to me how it’s relevant for your Honour to be told about claimed prejudice to Telstra in the event that the interim order sought is granted.

PN42

JUSTICE GIUDICE: Yes, well I want to take it a step at a time.

PN43

MR MOORE: Yes.

JUSTICE GIUDICE: Firstly, it’s an unsigned statement and I presume you want it to have the force of evidence, Mr Wood, so there’s that initial question as to the way in which it’s to be treated by the Commission. Arguments as to relevance may be a different thing but if you’re putting in contest the factual allegations, so far as they are factual allegations, then that’s a different question. I just want to be able to, at the basic level, say that I’m going to accept the statement, possibly with some exceptions if you object to particular paragraphs, and then we can argue about relevance after that.

PN44

MR MOORE: Yes, I understand, your Honour.

PN45

JUSTICE GIUDICE: Yes.

PN46

MR MOORE: I don’t think there would be any difficulty from my side of the bar table if all that went in, in this statement, were the paragraphs I identified before, those paragraphs are uncontroversial.

PN47

JUSTICE GIUDICE: So that was paragraphs?

PN48

MR MOORE: Paragraphs 1 through to 6 and paragraphs 15 through to 17.

PN49

JUSTICE GIUDICE: Yes.

PN50

MR MOORE: They are matters which are not contested, as I apprehend it, by this side of the bar table.

PN51

JUSTICE GIUDICE: Yes.

PN52

MR MOORE: So I understand what your Honour says but a shortcut, if you like, your Honour, through it might be to deal with the question of relevance because if the rest of it is to go in, well that will raise a can of worms potentially.

PN53

JUSTICE GIUDICE: Yes. So these other paragraphs are a mixture of allegations and facts, aren’t they?

PN54

MR MOORE: Yes, you mean the paragraphs that I object to, your Honour?

PN55

JUSTICE GIUDICE: Yes.

PN56

MR MOORE: Yes, they’re in the nature of the sorts of things that one would expect to see in an affidavit going to balance of convenience.

PN57

JUSTICE GIUDICE: Yes.

PN58

MR MOORE: They do contain a narration mixed with some allegations about consequences for Telstra in the event that interim order is granted.

PN59

JUSTICE GIUDICE: Yes, what do you suggest I do in relation to this statement, Mr Moore?

PN60

MR MOORE: Well I suggest, your Honour, that the appropriate course is to proceed this way, that the paragraphs I’ve identified, I’m content for you to treat as read and the affidavit - sorry, the statement otherwise not be admitted.

PN61

JUSTICE GIUDICE: Yes.

PN62

Mr Wood, what do you say?

PN63

MR WOOD: Your Honour, we think you should admit the whole of the statement and treat is having been read. It’s a question for your Honour as to the weight that you give to the material contained in the statement.

PN64

JUSTICE GIUDICE: Yes.

PN65

MR WOOD: I can address you on specific paragraphs but that is the normal practice in this Commission, your Honour. The paragraphs my learned friend has difficulty with, that is paragraphs 7 through 14, simply explain what has been going on elsewhere, both elsewhere in the court and elsewhere in the Commission, and set up some background facts. I can hand up to your Honour - there’s no objection to 14 either, your Honour.

PN66

I’ll hand up to your Honour just the reason that we put in the affidavit filed in the Federal Court. We don’t seek to re-agitate the matters there but you can see that Mr Fewster’s first and second affidavit set out a lot of the relevant background material; that is the current enterprise agreement, the fact of negotiations, who the agreements cover; what the structure of the business units is; the structure of proposed agreements announcement; discussion groups; voting process; cost of voting process; and some further details about the negotiations. We’re not asking your Honour to find any facts in relation to those matters that are contested, but those are largely, apart from one matter, uncontested background facts.

PN67

Then in relation to paragraphs 18 and onwards, that is a mixture of fact and opinion. It’s opinion that the maker of the statement is well able to give, given his experience and your Honour will give it such weight as you see fit. It’s the type of material that’s always put in on a balance of convenience argument. The question being for your Honour that if a stay is not granted there will be consequences as a result of the further progress of this matter, and we depose to or it sets out some of the consequences.

PN68

JUSTICE GIUDICE: Yes, I’m a bit inclined to accept that course, noting your objections Mr Moore.

PN69

MR MOORE: Yes, your Honour.

PN70

JUSTICE GIUDICE: I think that might be the most practical course.

PN71

MR MOORE: Yes, your Honour.

PN72

JUSTICE GIUDICE: There are obviously matters in there which are contentious and are really in the nature of allegations, so I think we will understand that.

PN73

MR MOORE: Yes, your Honour.

PN74

JUSTICE GIUDICE: All right. I’ll mark that I think, so the record is clear. What designations did the Senior Deputy President give to the exhibits before him?

PN75

MR WOOD: The exhibit were - - -

PN76

JUSTICE GIUDICE: The Telstra exhibits, how were they marked?

PN77

MR WOOD: T1 through T6, your Honour.

PN78

JUSTICE GIUDICE: All right, I’ll mark this exhibit TA1.

EXHIBIT #TA1 STATEMENT OF DARREN FEWSTER

PN79

MR WOOD: Your Honour, then there is the question of the outline of argument.

PN80

JUSTICE GIUDICE: Yes, I don’t intend to mark that.

PN81

MR WOOD: Yes, your Honour. There’s a slight typographical error in the outline of argument at paragraph 16. It refers to his Honour concluding that he had jurisdiction under clause - sorry, your Honour, I just can’t recall where the typographical error is. Perhaps I can deal with it in the running, your Honour, I think it’s a very small matter.

PN82

JUSTICE GIUDICE: Yes, very well.

PN83

MR WOOD: Your Honour, in relation to the application for the stay we have to prove the three things we set out in paragraph 2 of our argument, relevantly an arguable case and the balance of convenience. We say, your Honour, that the first - - -

PN84

JUSTICE GIUDICE: I think you need an arguable case that leave would be granted and that the appeal would succeed, don’t you?

PN85

MR WOOD: Sorry, your Honour?

PN86

JUSTICE GIUDICE: I think you need a sufficiently arguable case that leave would be granted and that an appeal would succeed.

PN87

MR WOOD: Yes, your Honour.

PN88

JUSTICE GIUDICE: Yes.

PN89

MR WOOD: Sorry, it might - - -

PN90

JUSTICE GIUDICE: Well your first point is that an arguable case an error has been made.

PN91

MR WOOD: Yes.

PN92

JUSTICE GIUDICE: That’s a different thing.

PN93

MR WOOD: Well it’s strong than that, your Honour. I think we’ve set out the case we rely on.

PN94

JUSTICE GIUDICE: Yes.

PN95

MR WOOD: I think that sets out the principles, your Honour, and we can - - -

PN96

JUSTICE GIUDICE: Is that a decision of mine?

PN97

MR WOOD: I think Vice President Ross as he then was.

PN98

JUSTICE GIUDICE: Yes, but anyway you’re adopting the convention - - -

PN99

MR WOOD: No, it’s one of yours, your Honour, so we can safely rely on it.

PN100

JUSTICE GIUDICE: But you’re adopting the conventional test?

PN101

MR WOOD: Yes, your Honour.

PN102

JUSTICE GIUDICE: Yes, very well, that’s the way I’ll approach it.

PN103

MR WOOD: Thanks, your Honour. In relation to the decision under appeal, we say that the appeal arises under section 45(1)G of the pre-reform Act, because that is the jurisdiction that is preserved by the current Act to deal with appeals in relation to matters of this nature.

PN104

It doesn’t really matter whether it’s 45(1)G of the pre-reform Act or section 121 of the current Act; the same test is applicable and in the cases that we have handed up to your Honour at tab 2, we refer to the Tontine Fibres case and your Honour can see there that the - also a decision of your Honour’s - sorry, of which your Honour was the presiding member of the Full Bench.

PN105

Your Honour took the view that 45(1)G, at paragraph 7, was the - - -

PN106

JUSTICE GIUDICE: Yes.

PN107

MR WOOD: Relevantly, your Honour we are saying that the appeal was one as to jurisdiction and that is there has been a decision by the member of the Commission, Senior Deputy President Lacy, that he has jurisdiction and that decision is encapsulated in his reasons of 8 September 2008; which is the decision recorded as 2008 AIRC 714 and it’s in the first tab of the appeal book.

PN108

Your Honour the way the proceeding developed below was that applications were made under section 170LW by three unions and those applications were made on 28 August. It was listed d before his Honour on 1 September and the ACTU were given leave to intervene, and the applications as they were made on 28 August, claimed that there was a dispute over the relevant agreement.

PN109

There’s no dispute as far as I understand it, your Honour, that the terms of the dispute settling procedure of the agreement have not been set out properly at paragraph 4 of his Honour’s decision. But the other clauses upon which the unions relied, as you can see in the application, were relevantly clauses 3.2, 27.4 and 27.5.

PN110

Your Honour, the best place to identify those clauses - this might cause a little bit of difficulty - is in the exhibits to the affidavit filed by Mr Fewster in the Federal Court, which should be in the folder, I think, in front of your Honour’s associate.

PN111

JUSTICE GIUDICE: I think I have those.

PN112

MR WOOD: You have got each of the exhibits but one of the exhibits itself had a number of annexures and the relevant tab is tab 1. So it’s exhibit GF1 to Mr Fewster’s affidavit of 9 September 2008. That’s the relevant enterprise agreement which was certified under section 170LJ of the Act as it then was, and was to remain in force until last Friday, 5 September 2008.

PN113

The two clauses in relation to which a dispute was notified are clause 3.2, which says that Telstra and the unions referred to in clause 2.2 will commence discussions for the purpose of negotiating an agreement to replace this agreement four months before the nominal expiry date of this agreement.

PN114

JUSTICE GIUDICE: I’m sorry, what number is that?

PN115

MR WOOD: Sorry your Honour?

PN116

JUSTICE GIUDICE: What number is that?

PN117

MR WOOD: It’s exhibit GF1.

PN118

JUSTICE GIUDICE: Sorry, I was looking at the wrong exhibit. Yes, thank you. Yes, 3.2?

PN119

MR WOOD: Which talks about commencing discussions for the purposes of negotiating an agreement to replace this agreement, and you’ll see, your Honour, in the applications, each of which is dated 28 August 2008, the matters in dispute were said to be that clause 3.2, and it was said that Telstra, on 17 July 2008, announced an end to any such discussions and has refused to discuss a replacement agreement with the unions since that time.

PN120

It was also suggested that there was a dispute over clauses 27.4 and 27.5 of the agreement, and I won’t bother taking you to those clauses, your Honour, because the way in which the matter developed on 1 September and on 8 September was that the unions narrowed their complaint about the dispute to clause 3.2. I don’t think anything turns on it. My learned friend might tell me I’m wrong about
that - - -

PN121

MR MOORE: No, that’s all right.

PN122

MR WOOD: He accepts that. Thank you for that. You’ll see in exhibit 6 to Mr Fewster’s statement filed in this proceeding that the submissions filed on behalf of the unions for the hearing tomorrow focus very heavily on clause 3.2. You’ll see at part B, your Honour, the reference is to clause 3.2.

PN123

JUSTICE GIUDICE: Yes.

PN124

MR WOOD: There’s no longer any reference to clauses 27.4 and 27.5 and I don’t criticise the unions for this, but the argument is somewhat more developed in these submissions than it was in the application or indeed before his Honour Senior Deputy President Lacy. The focus is not, it seems, so much on the ending of discussions in July 2008, but it appears that the focus is more upon the commencement of the discussions, and presumably the reasons for that is to try to ensure that there is such a dispute over the application of clause 3.2.

PN125

Your Honour, for the purposes of this jurisdictional hearing we repeat what we said before Senior Deputy President Lacy, that we do not take issue at this stage, for the purposes of this part of the hearing, with the argument that there is arguably a dispute over clause 3.2. So for the purposes of the appeal, and indeed his Honour’s decision, we were prepared to concede that much.

PN126

We also conceded, for the purposes of his Honour’s decision on the jurisdictional issue, and we make that concession here again today, that we did not take any issue with the proposition that that dispute over clause 3.2 of the agreement had percolated up through subclauses 2, 3 and 4 and 5 of the dispute settlement clause in 26.

PN127

That is, we didn’t take a Charles Sturt point before his Honour and we don’t take one today, and we won’t on the appeal proper either. But we obviously reserve our position if jurisdiction is established, to make those two points; that there isn’t in fact a dispute over the application of the agreement and if there is, it hasn’t percolated up through subclauses 1 through 5 of clause 26.

PN128

So for the purpose of his Honour’s decision, his Honour was entitled to assume, and he did, that there was a dispute over the application of the agreement, constituted by an alleged contravention of clause 3.2. His Honour was entitled to assume, and he did, that that dispute, or to use the words of clause 26 of the dispute settlement procedure, that that matter remained unresolved for the purposes of clause 26.6 of the dispute settlement clause.

PN129

So your Honour, apart from making some observations about the manner in which some suggestions that some facts might ultimately be found in paragraphs 9 and 10 of the decision, we don’t take any issue, having regard to what I have said here this morning, about his Honour’s reasons for decision up to paragraph 12.

PN130

Can I say, your Honour, that the approach Telstra took to the notification of - sorry, to the unions bringing these applications was to do what it had done twice before in similar circumstances, and that is write to the Commission and say, “We have not agreed to appoint a mediator and we have not agreed that the mediator be a member of the Industrial Relations Commission”.

PN131

In those similar circumstances previously in 2006 and 2008 the Commission wrote back and said, having regard to the absence of agreement, it wasn’t minded to further hear the matters and there was no further hearing, as I’m instructed, of those matters. That is the point of exhibits T1 to T6, which are found in the appeal book, your Honour. Your Honour, I don’t need to take your Honour to those but I just explain - your Honour might wonder why Telstra didn’t turn up on 1 September and I’m explaining by reference to what had happened previously.

PN132

JUSTICE GIUDICE: Yes, I think it’s in the decision, isn’t it?

PN133

MR WOOD: Yes, your Honour.

PN134

JUSTICE GIUDICE: Yes.

PN135

MR WOOD: Except that I don’t think his Honour makes reference to the actual exhibits. He certainly refers to paragraph 11, to referring to the letters from the members of the Commission.

PN136

JUSTICE GIUDICE: Yes.

PN137

MR WOOD: Which he refers to in paragraph 7, and there are two letters from different members of the Commission but there are in fact six exhibits that sit behind those two letters.

PN138

JUSTICE GIUDICE: Yes, in relation to Telstra’s appearance or non-appearance, I was a little confused for a while because for some reason Telstra’s appearance does not seem to be listed at the foot of the decision.

PN139

MR WOOD: Yes. No, no.

PN140

JUSTICE GIUDICE: But in any event the decision makes it clear what happened.

PN141

MR WOOD: Yes, your Honour.

PN142

JUSTICE GIUDICE: Yes.

PN143

MR WOOD: Yes, that’s quite right. We weren’t there on 1 September; we were there subsequently on 8 September.

PN144

JUSTICE GIUDICE: Yes.

PN145

MR WOOD: Moving then to paragraph 12 to 18 of the decision, the basic point we made before his Honour was that there was no power or jurisdiction given by clause 26 in relation to the conceded dispute, because there was not agreement to appoint a mediator and there was no agreement to appoint a mediator who was a member of the Industrial Relations Commission.

PN146

His Honour, I think it’s fair to say, accepted that proposition as a matter of fact and he did not find ,as I read his decision, that there was in fact power given to the Commission by operation of clause 26.6.

PN147

JUSTICE GIUDICE: He seems to have upheld that submission.

PN148

MR WOOD: He seems to have.

PN149

JUSTICE GIUDICE: Yes.

PN150

MR WOOD: Yes, your Honour. The basis upon which his Honour found that the Commission had jurisdiction to deal with the matter appear to be based on clause 26.8. This was not a power or a formal power that was referred to, either in the applications or on 1 September.

PN151

It was developed in argument on 8 September, and the argument as was developed by Mr Fetter, who appears at the bar table with my learned friend Mr Moore this morning, was that there were two routes to get the Commission to exercise jurisdiction under clause 26 in relation to such a dispute; one was 26.6 and one was 26.8.

PN152

The argument we raised, your Honour, was that 26.8 did itself not provide any source of power or jurisdiction for the Commission in relation to a dispute which had percolated up through subclauses 1 to 5, and in relation to which agreement could not be reached to appoint a mediator under subclause 6.

PN153

JUSTICE GIUDICE: Well didn’t he simply find that the requirement for consent in 26.6 does not carry over into 26.8?

PN154

MR WOOD: Yes, your Honour, he did find that in effect.

PN155

JUSTICE GIUDICE: Yes.

PN156

MR WOOD: But the rationale for that was, we think, based on improper thinking. His Honour seemed to be of the view that it was unacceptable that the matter simply stopped at subclause 5 and subclause 6. If you like, your Honour, it’s a little bit like the argument your Honour had to deal with in the Ampol case about 10 years ago, and I’ll hand up a copy of that case. It’s in our list of authorities at tab 7.

PN157

JUSTICE GIUDICE: Was there any reservation of rights under the Act in that case?

PN158

MR WOOD: Any reservation of rights in?

PN159

JUSTICE GIUDICE: Under the Act in that case?

PN160

MR WOOD: No your Honour, not in relation to that. The only reservation was a reservation that one normally sees, “That until the matter is determined, work shall continue as normal. No party shall be prejudiced as to the final settlement by continuance of work in accordance with this clause”. But no reservation of rights under the Act; simply a more blanket statement - this is at page 2 of the decision, your Honour.

PN161

JUSTICE GIUDICE: Yes.

PN162

MR WOOD: Can I say, your Honour, that the reasoning at paragraph 15 and 16 of the decision, and to an extent the last sentence in 14, reflects the type of reasoning that was applied by his Honour Senior Deputy President Polites and was regarded as inappropriate, having regard to the structure of the Act, by the Full Bench on appeal.

PN163

That is, paragraph 14 says:

PN164

It seems to me that if clause 26.5 -

PN165

This is of his Honour’s decision:

PN166

- does not provide for a means of resolution of dispute in the absence of agreement of any of the parties to a dispute over its terms, the contentions of the ACTU have some force.

PN167

That is, that 26.8 applies. His Honour then goes to refer to the private arbitration case and then at the end of paragraph 15 he says:

PN168

It’s not without significance that a substantive condition for certification of the agreement was it included procedures for preventing and settling -

PN169

and settling is italicised:

PN170

- disputes between the employer and the employees whose employment would be subject to the agreement.

PN171

His Honour seems to pick up the reasoning of Senior Deputy President Polites, without referring to it, obviously, but that type of thinking, that such a provision must guarantee the resolution of a dispute, rather than simply facilitating a mechanism to enable disputes to be settled. Your Honour, there were - - -

PN172

JUSTICE GIUDICE: Didn’t the submission be enlivened by what the Senior Deputy President decided to do? He simply - well perhaps this is contentious, but it seems to me that he simply invited more submissions on what powers he might have under the Act generally, and the answer to that question might be some powers or nor powers.

PN173

MR WOOD: That’s quite true, your Honour. In that sense if the decision is read as, I don’t have any power in relation to the applications made because there hasn’t been consent under subclause 6, but note 26.8 preserves - sorry, does not prevent you from exercising any rights you have under the Act. You can go away and make any such applications as you may be advised, and “I’m willing to list them and hear them as soon as practical”. We wouldn’t have any difficulty with that, your Honour. As a proposition that is really our case, that 26.8 does not, through the vehicle of a dispute over the application of the agreement, create any further rights in relation to such a dispute.

PN174

JUSTICE GIUDICE: Yes.

PN175

MR WOOD: That dispute is finished ….. At clause 26.5 when there is a lack of agreement, all 26.8 says well if you go through this dispute settling procedure and if the Commission – or if any mediator mediates it, and if indeed no mediator is appointed, the parties have all the rights that they previously had in relation to the facts which gave rise to the dispute. I might say your Honour that’s perfectly sensible in circumstances where these are provisions which in effect set up a de facto or another enforcement regime in relation to facts which might otherwise constitute a breach of an agreement. In some circumstances without such a clause one could imagine the fact that we’ve been through a disputes settlement clause – disputes settlement procedure, might be regarded as a block to then going and enforcing in regular in the time honoured fashion, the breach of the agreement which you alleged constitutes the dispute.

PN176

26.8 makes it clear that whatever you do under the dispute settling procedure, however far you get you’ve got all the rights you have at law under the Act and if his Honour had just said I can’t take this any further much the same way that Commissioner Smith and Commissioner Bacon did and simply indicated the parties had such rights as they have under the Act, we wouldn’t have an issue with your Honour and we wouldn’t be here.

PN177

JUSTICE GIUDICE: But the critical difference in this case seems to be the conclusion he reached that the requirement of consent in 26.6 doesn’t carry over into 26.8 and in those circumstances he well – again it seems to me, but I may be wrong, is simply providing for submissions to be made about what powers if any he’s got and indicating that simply because Telstra doesn’t agree to that course is not bound to discontinue the proceedings.

PN178

MR WOOD: That’s the bit that we’re at issue with, we agree with everything up to not bound to discontinue the proceedings your Honour because at that point it is said that consent is not required to sub clause 8. We accept that there are other rights available under the Act and we accept that the fact one may have marched through sub clauses 1 to 5 is not to prevent one exercising those other rights under the Act, but those are free standing rights.

PN179

JUSTICE GIUDICE: But aren’t these submissions that you should be addressing to Senior Deputy President Lacy tomorrow? I mean what error has he made apart from listing the matter for further argument?

PN180

MR WOOD: Well he’s indicated that he has jurisdiction in relation to these applications. That is he is indicating that he is going to deal with these three applications. Well that’s been listed your Honour.

PN181

JUSTICE GIUDICE: Well as long as it’s arguable the Commission could for example order a ballot under 135 to the extent that’s a provision relating to the operation to preserve the provisions. It’s a matter that’s not been addressed by the parties, neither has any other provision of the Workplace Relations Act or the preserved provisions of the pre-Reform Act been fully addressed. I think if he were to simply discontinue the proceedings he’d be denying the applicants their rights to put whatever they want to put in relation to those powers.

PN182

MR WOOD: Well your Honour that it really turns on we don’t have any issue with the applicants putting whatever they want to in relation to whatever powers they say currently exist before under the Workplace Relations Act in relation to these matters and we wouldn’t object to there being an expedited timeframe so the current times for the hearing are maintained and that the unions identify – sorry the applicants identify the provisions under the current Act upon which they rely, service of the application, rely upon all the material they’ve put to date, and we wouldn’t have any issue with the jurisdictional basis for the proceeding. But the problem is your Honour as it was said before his Honour on 8 September, the difficulty is that his Honour at paragraph 18 as you’ve referred to, is saying that the fact that this is a dispute over the application of the agreement may bring in other powers that would not otherwise be available to the applicants as an exercise of their freestanding rights under the Act as it currently exists.

PN183

That’s what his Honour is saying, his Honour is saying the fact that this is a dispute under the disputes settlement procedure of a pre-Reform agreement and the fact that clause 26.8 simply indicates that your rights in relation to the current Act are what they are somehow means that you may have rights under the pre-Reform Act and he gives an example, section 135 of the pre-Reform Act. That is the very application that the very order that the applicants are asking his Honour to make. They are asking his Honour to make two orders.

PN184

One is a ballot for all 11,000 employees who are covered by the current agreement and the second is to stop the ballot which is scheduled for Monday and Tuesday in relation to 380 employees who are covered by the two, or would be covered by the two proposed agreements. That’s the nub of the error he made, that he is sitting in the chair as it were saying I have jurisdiction to consider whether I can do anything in relation to this dispute and that anything includes things under the pre-Reform Act.

PN185

JUSTICE GIUDICE: What’s the – I don’t have the pre-Reform Act here is 135 replicated in the – thank you. Well that refers to industrial disputes.

PN186

MR WOOD: Yes your Honour my learned friend has just informed that he’s not going to ask his Honour to rely upon that section tomorrow as the basis for exercising any jurisdiction he might have to make the orders. But the order is in the nature of a ballot and an order preventing the – sorry an order for a ballot of 11,000 and another subsidiary order restraining the ballot for 380 employees. The point is really this your Honour the applicants have today whatever rights they have under the Act. We don’t’ disagree with that. But what this agreement does not do it doesn’t incorporate or soak up or enliven any jurisdiction that the Commission does not have as they have as at this date, pursuant to any rights the applicants then can agitate.

PN187

JUSTICE GIUDICE: Well that’s your case presumably there’s another case on the other side and the Senior Deputy President seems to be embarked on a course of hearing what everybody has got to say.

PN188

MR WOOD: Yes your Honour he has, but that’s your Honour what we say is the jurisdictional error because - - -

PN189

JUSTICE GIUDICE: But you want to – you want the conclusion before the argument.

PN190

MR WOOD: We just want to say that there’s a – we just want to say that at the moment if there is an argument we’re so strong over, because of the operation of clause 26.5 that there is nothing in the pre-Reform Act that could be said to be soaked up or incorporated or enlivened. We do accept and we did accept I think before his Honour - - -

PN191

JUSTICE GIUDICE: Well was the Senior Deputy President wrong when he said in paragraph 18 that these questions hadn’t been addressed by the parties?

PN192

MR WOOD: The question of - - -

PN193

JUSTICE GIUDICE: Well if you just look at that paragraph 18 the second sentence, where he says, that certain things haven’t been addressed, was that wrong?

PN194

MR WOOD: No, it’s not wrong to say they haven’t been fully addressed, they were – sorry you’re talking about the second sentence your Honour?

PN195

JUSTICE GIUDICE: Well he says some things haven’t been addressed at all and some things haven’t fully addressed.

PN196

MR WOOD: Yes, sorry your Honour the way in which the debate developed below was that Mr Fetter referred to clause 26.8 is the second route to exercise the Commission’s jurisdiction. Mr Fetter identified two sources of power under the pre-Reform Act as result of the dispute as notified the dispute as conceded I should say for the purposes of the jurisdiction. One was section 170NA of the pre-Reform Act and the other was section 111 of the pre-Reform Act. True it is I think, I could be wrong about this, but I don’t think there was any debate in relation to section 135 of the pre-Reform Act, but my learned friend has conceded - - -

PN197

JUSTICE GIUDICE: Apparently that’s not an issue.

PN198

MR WOOD: It’s not an issue. There was a – his Honour says:

PN199

Neither has any other provision of the WR Act or the preserved provisions of the pre-Reform Act been fully addressed –

PN200

Well that’s probably correct also in the sense that the operation of section 170NA was not fully addressed and I guess it’s a matter of debate about whether the operation of section 111 was fully addressed. But that’s the source of the power upon which - the union’s tomorrow are going to turn up to Senior Deputy President Lacy and they’re going to say you have jurisdiction to deal with this dispute over the operation of clause 3.2 and we want you to do two things. In order to protect your jurisdiction we want you to restrain the ballot for Monday and Tuesday. Secondly, pursuant to section 111 we want you to order a ballot of 11,000 employees. So the source of the power which is to be exercised section 111 was a matter which was debated before his Honour on Monday.

PN201

It was debated at some length and I couldn’t say if it had been fully addressed because the way in which the matter came 9on, 26.8 hadn’t been identified prior to the 8 September. But it had been addressed and the proposition we made and we make again, is that section 111 is a procedural power - - -

PN202

JUSTICE GIUDICE: Mr Wood this is the – this is an application for a stay of operation.

PN203

MR WOOD: Yes, your Honour.

PN204

JUSTICE GIUDICE: The merits have got something to do with it obviously, but it’s not the venue for arguing the case.

PN205

MR WOOD: No, your Honour.

PN206

JUSTICE GIUDICE: If the Senior Deputy President was within his rights to use perhaps a strange expression but if it was open to him to say look these matters haven’t been fully addressed and I’m going to give an opportunity for them to be fully addressed, why should I intervene in that?

PN207

MR WOOD: Your Honour you shouldn’t in circumstances where his Honour simply says I am satisfied there is no jurisdiction under these applications in relation to the dispute as conceded and in relation to the concession as to the percolation up to sub clauses 1 and 5. If his Honour found that and said you can make any application you wish and I’ll hear your debate, I’ll hear your argument on that and I’ll hear it quickly, having regard to the timeframe of the ballot next Monday and Tuesday, and you can rely on the material you put in this application on the fresh application we wouldn’t have any issue with it your Honour.

PN208

But the point is there is no such application that can be made. There isn’t one. The union just can’t turn up tomorrow and identify, make an application under section 111 because that is a section that presumes there is jurisdiction and refers to the powers that can be exercised in the exercise of the jurisdiction. There is nothing that the unions can identify as the source of jurisdiction apart from clause 26. Clause 26 does not confer any jurisdiction in the circumstances before his Honour. Once you get to that conclusion there is no more work to do for the purposes of these applications.

PN209

But there may be a lot of work to do in relation to any other application that can be made. It’s just that for the particular application that will be made tomorrow there is no source of jurisdiction that can be identified. His Honour is proceeding on the basis that there may be such a source of jurisdiction and the reason that he says there may be is because clause 26.8 creates jurisdiction. That’s the point of paragraph 18 and the reasoning in paragraph 16 and 17. Your Honour if my learned friend got up and said I can say tomorrow, I can say at 12 o’clock today we’ll file applications under this section of the Act and we’ll seek the same relief that we currently seek before Senior Deputy President Lacy then that would be – and we withdraw the current applications, then they are going to be in exactly the same position as we say they ought be having regard to their legal rights.

PN210

The problem was your Honour that his Honour seemed to find that clause 26.8 did something other than state the obvious. That is dear reader there are other mechanisms, that may exist from to time, that can be used in relation to the facts that give rise to a dispute and it’s because his Honour found that 26.8 might soak up or incorporate some rights that no longer exist under the current Act and might be used as a vehicle in the absence of any other jurisdiction to exercise powers under section 111, we say his Honour has gone too far in the exercise of that jurisdiction under clause 26.

PN211

We say that our argument on this point is not only arguable but a strong one, that this vehicle for the exercise of the Commission’s powers is simply a vehicle that is not available for any reason in the absence of consent to the processes under subclause 6 and particularly not available because 26.8 is a circuit breaker. The whole point of the rationale of clause 26.8 being a circuit breaker was that it itself provided jurisdiction to do things which you couldn’t otherwise do pursuant to any other rights which exist under the Act from time to time. That’s the point of the reasoning in clauses – paragraphs 16 to 17 and that’s why we get to paragraph 18 where his Honour says that there are:

PN212

There is a jurisdiction under clause 26.8 –

PN213

And he says:

PN214

I am satisfied that under clause 26.8 of the agreement the Commission has jurisdiction to deal with the dispute over the application of the agreement.

PN215

Now that statement is just wrong your Honour. There is no jurisdiction to deal with a dispute over the application of the agreement under 26.8, there simply isn’t any.

PN216

JUSTICE GIUDICE: But all he’s saying is that there’s no requirement for consent isn’t he?

PN217

MR WOOD: But your Honour if he said - - -

PN218

JUSTICE GIUDICE: He’s not saying he’s concluded if there are any powers of an exercise, he’s reserved that matter for submissions.

PN219

MR WOOD: Your Honour there are no powers one can exercise pursuant to any jurisdiction to deal with a dispute over the application of an agreement pursuant to clause 26.8. The only powers that this clause give the Commission or any mediator, pursuant to a dispute over the application of the agreement are the powers that the parties agree to give to a mediator who is identified and agreed and the reference to mediation is provided. If his Honour was met that the processes of the Act that would otherwise be available to the Telstra unions have not been excluded by the dispute procedure in the agreement well we of course, we agree that’s exactly what it means.

PN220

His Honour didn’t say that, his Honour said the dispute over the application of the agreement continues, continues despite the absence of under subclause 6 and it continues so far because clause 26.8 is a circuit breaker because of the type of pre-Ampol thinking that you must have settlement of – you must have a guaranteed settlement of the dispute, and in those circumstances his Honour is proposing to deal with as he says, he is proposing to deal with the dispute over the application of the agreement under clause 26.8 and he can’t. There is no jurisdiction in the absence of consent to deal with that dispute. There is of course jurisdiction to deal with the facts that give rise to the dispute.

PN221

Those facts could give rise to a whole range of rights under the Act but the actual dispute itself that is picking up the terms of section 170LW, the dispute over the application of the agreement which has been notified and which is percolated up through subclause 5 is a dispute over the application of the agreement. That’s all one can say about it, because the Commission or indeed, there is no arbitrator, no mediator, who has any jurisdiction over that dispute, over the application of the agreement absent consent. All 26.8 says, irrespective of what happens with that dispute, whether you mediate it successfully or not, if you do it before the Commission or not, you’ve got all your other rights.

PN222

So you bring your other rights. You exercise your other rights under the Act and the fact that you’ve mediated, or not a dispute over the application of the agreement doesn’t have any impact upon the exercise of those rights. We give a lot of examples of the rights that might be invoked in relation to the facts that underpin the dispute your Honour in paragraph 7 of our submissions and refer to the rights to pursue it under the dismissal. A right to cease work in relation to genuine safety concerns. A right to make application in relation to alleged failure to consult unions on proposed redundancies.

PN223

One of the important rights that exercise is the right to take prohibited action which could include a claim for as part of a new agreement a new disputes procedure that led to compulsory mediation or compulsory arbitration at the election of one of the parties as a result of the negotiations of the new certified agreement. But that’s not what the parties are bargaining for your Honour. They didn’t bargain last time for any mediator to resolve any dispute over the application of the agreement without consent. Once you get to that point that is the end of the jurisdiction in relation to that dispute. But the facts underpinning the dispute could give rise to a whole lot of other rights under the Act. That’s how we put the arguable case point your Honour.

PN224

JUSTICE GIUDICE: Yes.

PN225

MR WOOD: Your Honour on the balance of convenience can I say this that what the unions wish to do is do two things. The first is to conduct a – ask his Honour to order a ballot of all 11,000 employees who are currently employed under the current enterprise agreement and secondly, make an order preventing the conduct of the ballot which is scheduled in two areas of Telstra’s operations for Monday and Tuesday next week. That ballot is – involves 380 people. They are persons who are employed in the wholesale business unit and the service advantage business unit. Employees in the wholesale business unit number 300 they are based in Melbourne, Adelaide, Brisbane, Canberra and Sydney. Some of them are voting by post, all the ones in Canberra are voting by post. Those are employees who interact with Telstra’s competitors, that is the persons who buy wholesale product from Telstra and Mr Fewster gives some evidence in his first affidavit at paragraphs 26 to 30 about the type of people that these people are. That is they are all long serving and their connection with the rest of the business mandated by legislation is more remote, because they have to sit away from the other parts of the business because they are there to ensure that other carriers can connect at the relevant wholesale rates to the Telstra network.

PN226

The 80 employees in the service advantage business unit are employed in Townsville and Perth. They deal with the field workforce and deal with as the first point of contact, complaints. The proposition being advanced is that those 380 people should not be able to exercise their lawful rights under the Act to vote on an employee collective agreement. They should be denied the right on Monday and Tuesday and some will have already voted by post to determine whether by majority, they should accept Telstra’s offers of employee collective agreements for them. That we say your Honour is a very substantial factor on the balance of convenience that there are third party rights that are affected by the exercise of jurisdiction which is not available to the Commission.

PN227

Turning to the Patrick’s case explains having regard to the decision in Miller and Jackson the cricket oval case, the third party rights are one’s that the Commission – sorry that any tribunal should take into account in an application such as this. In relation to Telstra’s rights Mr Fewster on the balance of convenience is concerned Mr Fewster has said in his statement and in his two affidavits to the court, that it’s very difficult to turn the ship around. The ship has sailed that there were draft agreements that were published on 25 August which is almost three weeks ago, Monday three weeks ago. That there were discussion groups about those draft agreements that the actual agreements were published on 1 September, that is Monday two weeks ago, the same day that his Honour first heard from the union applicants in this proceeding.

PN228

That the costs of running this ballot are substantial in the order of $16,000 for the AEC, the costs of an independent hotline with independent solicitors for the employees is in the order of $30,000. That the costs of briefing managers and employees in relation to this ballot both in actual costs and in management time, this is set out at paragraphs 21 to 24 of Mr Fewster’s statement are very substantial. That the costs of stopping the process now two days before deadline, two non working days before deadline in circumstances where the process at least insofar as the postal votes, has already commenced is very substantial in the many thousands of dollars.

PN229

That the difficulties of reversing the process are substantial and that most importantly there are very significant non monetary factors to be weighed on the balance of convenience. That is if this process of negotiating what would be the second and third non union collective agreements with Telstra was to be seriously disrupted then that would be very difficult. That would cause a great deal of difficulty in terms of Telstra’s future agreement making options. That is set out at 29 to 30. Your Honour can I say I don’t mean any criticism about this because the unions have got their own interests to protect, but that is the point of their application that not only will it disrupt this particular ballot but it will make the conduct of a future ballot in relation to this part of the workforce, or indeed any other part of the workforce much more difficult.

PN230

Your Honour can I also refer to Bullock’s case which stands for the proposition that where there is a strong arguable case then the balance of convenience need not be so strong. We say here your Honour that there is a very strong arguable case and there is a very there are very strong factors having regard to the balance of convenience that on both limbs we say there are very significant reasons as to why a stay should be granted and the proposition that is being advanced on the other side, does not insofar as I’m aware, refer to any balance of convenience considerations on the part of the unions. The proposition being advanced is that the employees should be given, that is the 11,000 employees should be given an opportunity to decide which form of agreement they wish to make in the absence of any particular agreement being put to them.

PN231

That is just as a theoretical question, that’s the balance of convenience factor a purely theoretical question is the reason for disrupting a ballot involving 380 actual employees in relation to actual terms and conditions which will actually benefit them, including by a pay rise from 2 October of four and a half per cent and the other benefits which are set in Mr Fewster’s affidavit the performance based pay and bonuses.

PN232

JUSTICE GIUDICE: Well the Senior Deputy President hasn’t decided to conduct a ballot.

PN233

MR WOOD: No your Honour he hasn’t but he’s sat in the chair and has indicated that he has jurisdiction in relation to a dispute over the application of the agreement. Our proposition is that he does not have any such jurisdiction over such a dispute, though he may well have some jurisdiction in relation to the facts that give rise to the dispute. The very point of sitting tomorrow will be to skip over that essential pre-requisite for any statutory tribunal which only has the powers that the Parliament gives them according to the statutory. To simply skip that step over and start considerable whether or not to issue powers, to exercise powers, including section 111 powers in relation to jurisdiction that plainly does not exist.

PN234

My learned friend got up and said we’ll identified the jurisdiction, we’ll point to this section, this section, this section these are the sections under the current Act which we say the Commission can be exercised by the Commission and section 111 powers can be used. My learned friend did that and the force of your Honour’s observation would be profound. But there’s a missing step, the missing step is jurisdiction we can’t simply avoid it by saying well it’s something we’re going to argue about - the powers in relation to a missing jurisdiction is something we haven’t yet considered because his Honour has said he has jurisdiction when he clearly has none. Is there anything further your Honour?

PN235

JUSTICE GIUDICE: Thanks Mr Wood. Mr Moore?

PN236

MR MOORE: Thank you your Honour. It is the case that there’s quite a bit more to be done in this matter and that business will happen initially at least tomorrow subject of course to whether or not your Honour accedes to the application before you. Can I say in general terms that my learned friend’s submissions demonstrate in our respectful submission the fact that the application and the nature of the appeal and the stay is fundamentally premature and that what is left hanging here is what his Honour Senior Deputy President Lacy referred to in the final paragraph of his decision which is to hear the parties on the further steps which need to be taken dealing with the dispute and that is what will happen tomorrow.

PN237

The question of jurisdiction your Honour Senior Deputy President Lacy approached that in an orthodox way. He construed the agreement before him and my learned friend has taken you to it and I don’t want to unnecessarily labour the point it deals with matters which are in dispute between the parties sets out a process which culminates at the penultimate stage as one of mediation, that the question for Senior Deputy President Lacy ultimately as the matter emerged in the running was whether or not the mediation step was the last step in terms of the jurisdiction and what role the Commission might be able to play and his Honour determined in looking at the terms of the agreement that 26.8 manifestly provided jurisdiction for the Commission to further deal with the dispute.

PN238

That is, because it reserved the rights of the parties to exercise their rights under the Act. Now a debate will have to be undertaken and I can tell from my learned friend’s submissions that it will be a vigorous debate as to what Senior Deputy President Lacy can do by way of the ground of relief and that’s the debate for another time. On the question of jurisdiction, my friend has really failed to grapple with the core of the decision which is the subject of the appeal, which is purely an orthodox application of the principles for the construction of the agreement. His Honour did not wrongly import into his reasoning, as Telstra suggests, some suggestion that certain agreements must be preferred over others, or the principle which the Full Bench in Ampol overruled the decision below by Polites DP. His Honour didn't apply any of that reasoning.

PN239

Contra to what was before the Commission in the Ampol case, that case did not - the agreement clause there did not contain a provision in the nature of
clause 26.8. In clause 26.8 the Senior Deputy President determined, and my friend has really failed to challenge in any substantive way his reasonings on that, afforded the jurisdiction. As I've said, it's a matter for the Commission to determine what, if any, powers might be exercised hereafter. I'd urge your Honour not to accept the way - to reject my friend's submission. With respect, it would, in our view, conflate the question of jurisdiction and power.

PN240

What the Commission might proceed to do, having found on the face of the agreement itself that jurisdiction does exist, the powers that are - without going into the debate which is a debate for tomorrow, or in the event that a stay is not granted, the powers, if I can just identify them, your Honour, are the powers contained in section 111 of the pre-reform Act or section 111 of the current Act and they are the powers that are relied upon for the relief which will be sought in due course and which will be sought tomorrow.

PN241

JUSTICE GIUDICE: Was that argued before the Senior Deputy President?

PN242

MR MOORE: Section 111, I'm instructed it was, your Honour. My understanding, and I wasn't appearing at the time, your Honour, is that the matter of powers that might be exercised was generally canvassed but not in any extensive way. It might be that's consistent with the way his Honour - - -

PN243

JUSTICE GIUDICE: With the last paragraph.

PN244

MR MOORE: Yes. It's not a question of, as my friend suggests, to file new applications and it's also not the case that the procedure does not identify any procedures to be exercised by the Commission. The clause, clause 26, regulates a dispute resolution process up to and including mediation and then leaves the matter of dispute resolution and the procedures to be adopted. It directs the reader's attention to those contained in the Act so there's no question of the agreement not furnishing the Commission with an understanding of what powers it might exercise in its discretion.

PN245

JUSTICE GIUDICE: What's the connection between the exercise of rights by a party and the conferring of powers on the Commission? Exercising of rights being the terms in 26.8(a).

PN246

MR MOORE: If I understand your question, your Honour, correctly, what that is doing is in the context of a clause which deals with dispute avoidance and consultation, is identifying that either party may seek to exercise those rights which are available under the Act, not being particularly overcomplicated, in my respectful view, about that. It leaves it wide in terms of the ambit of types of powers which the Commission would have jurisdiction to exercise, obviously not a question as to whether or not they might be exercised in any particular case. Looked at objectively, the parties have closely regulated up to and including mediation and then have cast the net wide via the reservation of rights in 26.8.

PN247

JUSTICE GIUDICE: I could perhaps give a bit more focus to the question. What's the right which a party has under the Act in relation to a dispute arising under an agreement? What right or rights does a party have in that respect?

PN248

MR MOORE: It has a right to seek the assistance of the Commission through section 170LW to resolve disputes.

PN249

JUSTICE GIUDICE: Once you get to LW, don't you run into the 26.6 point?

PN250

MR MOORE: No, your Honour, with respect. 26.6 is merely regulating, in our view, a particular phase in the dispute resolution procedure and mediation has to be - the parties may refer to it and it would appear that that phase is to be by way of the methods of mediation and conciliation as quickly as possible. I don't see that there's any inconsistency between that phase and the dispute resolution process and then the step up, as it were, in 26.8, that a party may seek to press its rights to have the dispute resolved in accordance with the provisions of the Act, with the powers which are available under the Act if it makes out a case.

PN251

JUSTICE GIUDICE: Isn't it the potential problem here that the powers in section 111 of whichever Act, probably doesn't matter much, are not powers at large. They have to be exercised in the context of - or in conjunction with some broader power in the Commission to deal with the matter. The power in 111 to make an order - or there was in the pre-reform Act - the Commission can't go around making orders about marital disputes or various other things. It has to attach to a particular exercise of jurisdiction. The difficulty I'm having at the moment is making that link between the exercise of those powers and the particular context with which we're dealing.

PN252

MR MOORE: Looking at the pre-reform Act, section 111(2) refers to other proceedings before the Commission. True it is, of course, the case, your Honour, that the power to be exercised must attach to both the jurisdiction and to a factual controversy which is appropriate to be addressed through the power. The jurisdiction here is enlivened by the filing of the applications and by the terms of clause 26 and then the remaining requirement would be to establish the factual basis, the merit basis, as it were, for the exercise by the Commission of the powers which the disputes procedure itself permits the Commission to use. Here those powers are expressed at large.

PN253

JUSTICE GIUDICE: Are you saying the effect of this provision - just to test this - is that by the use of section 170LW the parties have decided, so far as the Commission is concerned, on the 26.6 procedure, that is agreed mediation but also that intentionally conferred on the Commission any other power the Commission can exercise?

PN254

MR MOORE: Yes, your Honour. There's nothing necessarily incongruous in that. It's quite legitimate for the parties in making their contract, as they did, to regulate the fairly close way the penultimate phase of mediation but the parties, for whatever reason, your Honour, have decided to cast the net widely when it comes to the requirement to resolve the dispute.

PN255

Your Honour, the way in which parties make contracts and agreements can be for a range of reasons, of course, and it's not relevant or possible to inquire into the subjective thinking that went on to produce the terms of an agreement or contract. One can think of all sorts of different reasons why clause 26.8 was put there. There's a range of different scenarios that one might postulate and the relevant task in terms of construing the agreement which his Honour Senior Deputy President Lacy did is to attempt at least to focus upon the objectively ascertained intention of the parties and here, Senior Deputy President Lacy went through some reasoning in his decision which led him to the view that given the presence of 26.8, by its terms the parties were not contemplating that a disputes procedure would end at a mediation process which both parties had to agree to, or which could effectively be held hostage by one party not providing its agreement to either a mediator at all or a particular mediator and that that was an outcome which was consistent with section 170LT of the Act as it was, and the mandate in that section that the agreement contained provisions which settle and prevent industrial disputes.

PN256

Your Honour, to reiterate, my client's position is that there is no error disclosed, or to use the test which your Honour correctly, of course, identified at the outset, there is not a sufficiently arguable case that Senior Deputy President Lacy was in error - or to put it more accurately, that the appeal would be upheld in relation to the question of jurisdiction and that is because the parties, through their private agreement, have set out a staged process for dispute resolution which his Honour analysed in a way which is consistent with established principles and which my friend has not seriously challenged, in my view, today, which leaves the process in the hands of the Commission if a party elects to do so at the end of that process in clause 26.8. At that juncture, the proper construction of the clause is essentially that that clause picks up the right of a party to seek whatever remedy or relief might be available to it under the Act to settle, to resolve the dispute.

PN257

On the question of leave to appeal, the requirement of the established approach is that the appellant must show that there's a sufficiently arguable case that leave would be granted on the appeal. His Honour's reasons do not stand for the proposition asserted by Telstra that disputes procedures must result in the referral of a matter for resolution by a third party. His Honour has made no such decision. His Honour's reasoning and conclusion is directed at the terms of the agreement before him.

PN258

Other than the fact that the appeal raises the question of jurisdiction, which necessarily occurs in any appeal of a decision about jurisdiction, there's no other public interest enlivened in the appeal, such that there's not a sufficiently arguable case that leave would be granted.

PN259

On the balance of convenience, your Honour, the onus is on Telstra to demonstrate that the balance favours the grant of a stay and my friend's submissions, with respect, were misdirected. They are submissions which, in the event your Honour does not grant the stay, which would most relevantly be made before Senior Deputy President Lacy tomorrow, whether or not the interim relief sought by the union should be granted. It's not appropriate or relevant, in the union's submission, that matters going to claimed prejudice and loss for Telstra, they don't arise at this juncture, your Honour, because his Honour - and this highlights the prematurity of the appeal, they don't arise at this juncture because we don't know what, if anything, Senior Deputy President Lacy may do.

PN260

The most central balance of convenience point in this matter is one which favours the union, your Honour, the union. I think my friend has outlined to you, at least satisfactorily for present purposes, the nature of the relief which is sought tomorrow by the unions. Two orders are sought, one is for the conduct of the ballot of Telstra employees, the other, the relevant one for this submission, is an interim order that the ballot scheduled for Monday and Tuesday not occur in substance.

PN261

They are occurring on Monday and Tuesday. If your Honour grants the stay, the unions will be unable to exercise their rights to persuade the Commission to use its jurisdiction to grant the relief sought. The proceeding will come to a stop.

PN262

JUSTICE GIUDICE: I'm not sure about that. I don't have any power to grant a stay of proceedings.

PN263

MR MOORE: No, the stay is sought in relation to the decision below.

PN264

JUSTICE GIUDICE: I don't know if there's any practical difference but I can't make an order that the Senior Deputy President not sit tomorrow.

PN265

MR MOORE: No, indeed, your Honour, but the effect of the stay, if granted, would be that the decision below - - -

PN266

JUSTICE GIUDICE: That's probably right.

PN267

MR MOORE: - - - is stayed, the consequence being that the unions will be denied the right which they seek to exercise to seek interim relief, the purpose of which is to preserve the Commission's jurisdiction. That argument follows, your Honour, because clause 3.2 of the agreement, which is the clause about - the operation of which is in dispute. I'll just read it to your Honour:

PN268

Telstra and the unions referred to in clause 2.2 will commence discussions for the purpose of negotiating an agreement to replace this agreement four months before the nominal expiry date of this agreement.

PN269

The unions' submission to be made in due course that that clause carries with it an obligation that the discussions identified in it be discussions undertaken in good faith, bona fide and that they be discussions for a replacement agreement, namely an agreement of a union collective agreement. The unions will seek, and the other order which is sought for tomorrow, namely the holding of the ballot, is an order which is sought in aid of this greater end, the unions will in due course seek relief directed at the conduct of the discussions, such that those discussions occur in a way which furthers the meaning of clause 3.2 properly construed as I have just outlined.

PN270

JUSTICE GIUDICE: You can lead a horse to water.

PN271

MR MOORE: Indeed you can. There are many other hurdles to be overcome in the case, your Honour and we're here because Telstra has come too early. In any event, your Honour, the purpose of the interim relief which is sought tomorrow, without getting into an argument about the merits of the grant of that relief, that interim relief is designed to protect the Commission's jurisdiction, to preserve its jurisdiction to grant subsequent relief, final relief dealing with the conduct of the discussions and negotiations.

PN272

If the stay is granted, in effect, your Honour, the unions will not be able to - the opportunity which currently exists for the unions to seek that relief tomorrow will be lost and the votes will occur. There's 300-odd employees subject to these two proposed agreements and if they're voted up, they're voted up and it can't be undone. They will then crystallise the results of what the unions submit have been bad faith negotiations by Telstra, and negotiations which are contrary to the import of clause 3.2.

PN273

That, we say, is the central consideration that your Honour should consider in weighting the balance in this matter.

PN274

JUSTICE GIUDICE: It seems to you want me to make some judgment about the negotiating conduct of the parties.

PN275

MR MOORE: No, I do not invite you to do that, your Honour. That's not a necessary consideration at this juncture. What I'd ask your Honour to focus upon is the application which the unions have on foot for interim relief, which application will be determined tomorrow and in the event that the stay is granted, that opportunity for that interim relief to be granted will, for all practical terms, not be available.

PN276

JUSTICE GIUDICE: Mr Moore, I have to adjourn for a few moments. Something needs to be attended to. We'll adjourn until 10 past 12.

<SHORT ADJOURNMENT [11.49AM]
<RESUMED [12.04PM]

PN277

JUSTICE GIUDICE: Mr Moore.

PN278

MR MOORE: Your Honour, I was just about to conclude my submissions on what I've identified as the primary balance of convenience point which, to summarise it, is that if the stay is granted, the unions will be denied the ability to seek interim relief, which relief is necessary to preserve the capacity of the Commission to effectively use the jurisdiction which Senior Deputy President Lacy has found to exist.

PN279

What flows from that also, in practical terms, your Honour, is that there are serious matters at stake here if the agreements do proceed to ballot and they are voted up, which is a scenario which could occur in the event that a stay is not granted. The industrial regulation in respect of the employees employed pursuant to those agreements will be fixed and determined because the agreements must be lodged after they are approved, in the event that they are approved, and - - -

PN280

JUSTICE GIUDICE: Won't that be their choice?

PN281

MR MOORE: That will be their choice in terms of voting up the agreement, as it were, but the controversy which is before the Commission in the application is a dispute over the application of the agreement and the allegation that Telstra has acted contrary to clause 3.2 in conducting the negotiations in bad faith and without bona fides, and in a way which is not directed at the required end, namely a replacement union collective agreement. That book will be closed in respect of those employees. They are purely academic issues and, in fact, issues that won't be able to be agitated in respect of those employees.

PN282

If the stay is not granted on this point, there's no prejudice to Telstra. Telstra will have its opportunity tomorrow at the listed hearing to attempt to persuade Senior Deputy President Lacy why, as a matter of the merits or the powers provided for under the clause, the interim relief shouldn't be granted. So the stay, of itself, won't prejudice Telstra.

PN283

Can I also just reiterate that - going back to the point I was making before in relation to the employees employed pursuant to the two proposed agreements to be voted on on Monday and Tuesday, not only does that mean, if a stay is granted, that the book is closed in relation to those employees and that there's no capacity then to unravel the agreement-making process in relation to those employees, it also affects other Telstra employees in that there will then be a segment of the workforce who bargaining has been concluded and bargaining will have been concluded in a way which is contrary to what the parties intended, pursuant to clause 3.2, be the result of bad faith bargaining. The position of the unions and the position of the remaining employees will - their bargaining position will be reduced in a commensurate way.

PN284

A couple of other issue son balance of convenience, I've made a submission already, I think, your Honour, about the question of the costs and the inconvenience Telstra asserts is associated with the refusal of a stay and my principal submission on that is those submissions are irrelevant. They are submissions that Telstra should make to Senior Deputy President Lacy tomorrow. However, in the event that your Honour is attracted by any of those submissions, I urge your Honour to see them in context. Telstra is referring to various moneys being expended, well, some portion of those moneys will necessarily not be thrown away - I withdraw that. Some portion of those moneys may not be thrown away in the event that interim relief is granted but the proposed agreements go to a vote at some later time, so not all of the money is thrown away. It will be moneys that will be expended without any relevant utility.

PN285

Secondly, one needs to see these moneys and the claimed financial losses in context. Telstra is an entity which has a capitalisation on the Stock Exchange of
$52 billion. It's an entity which the chief executive was awarded a pay rise of $13.4 million last year. This is an entity of mammoth size so it really ought not be of particular moment, in our respectful submission, that 10, 15, 30 thousand dollars might possibly be - some portion of it might be wasted. It really ought not trouble you, we would say, your Honour, in relation to the claimed financial losses.

PN286

There's another matter on balance of convenience, a specific matter I should draw your Honour's attention to. One of the matters that is the subject of the other order which is sought to be made by the Commission tomorrow is an order dealing with right of entry. This is not in the interim order. It's an issue which the unions propose to agitate and will be dealt with - what the unions will seek to be dealt with tomorrow before Senior Deputy President Lacy, and it's a dispute which concerns the access to the workplaces of employees who are covered by the proposed agreements, those employees being members of APESMA - all the unions, I understand not just APESMA. It's been the subject of correspondence between the unions and Telstra over the last week at least, or perhaps more, and, your Honour, in the event that a stay is granted, that would be an inconvenient and unhelpful outcome in relation to that particular dispute.

PN287

JUSTICE GIUDICE: How is that affected by these proceedings?

PN288

MR MOORE: It's one of the orders that are sought in the draft order which is attached to the unions' submissions tomorrow so orders are sought relating to providing access to the workplace of the union officials and that's a dispute which should and ought conveniently be dealt with as soon as possible before the dispute escalates.

PN289

JUSTICE GIUDICE: That's not the subject of a separate application.

PN290

MR MOORE: No, it's not. It's a dispute which is caught up - I thank my learned friend. It's a dispute which concerns access by the officials in relation to the balloting of the proposed agreements, so it's not right of entry. It's not an argument about right of entry to some other extraneous or other circumstance, it's access to the workplace within the context of the balloting of the agreements.

PN291

JUSTICE GIUDICE: That's regulated by the Act, isn't it?

PN292

MR MOORE: It is, your Honour, but as a matter of convenience and utility, given that these matters are interlined, it is a factor - I don't wish to overemphasise it, your Honour, that does bear in the balance in terms of not staying this proceeding so the proceedings can move forward to an early resolution.

PN293

The other matter which your Honour should not lose sight of in assessing the balance of convenience, is that we are here because of disputes which were notified by the three unions, my clients. Those disputes were notified in an endeavour to seek the assistance of the Commission to settle the disputes which were specified in the notices - - - And to avoid disputation out on the ground, as it were, and I'm instructed that these issues are matters of very real agitation amongst employees and members of the unions at Telstra and that there is every prospect that in the event that the good officers of the Commission are unable to be used in aid of the resolution of the dispute, that the matter may escalate.

PN294

I don't mean to suggest that that's any intention but it’s just a statement of the reality, your Honour. These are issues of very hot concern amongst the employees, quite understandably, and the unions are keen to avoid a situation where there is disruption both to Telstra and the employees and also to the community more generally. That is a factor which should bear in your Honour's consideration of the balance of convenience in terms of letting this matter proceed and to reject what is in substance a premature application by Telstra.

PN295

Just two last matters. My last matter on balance of convenience, your Honour, I misled you inadvertently. I think I referred to Telstra's chief executive officer as having a pay rise of $13.4 million. I think I was gilding the lily a bit there. I'm instructed that that's the chief executive officer's annual salary, unless inflation has gotten way out of control.

PN296

Your Honour, the last thing I would say just before I sit down, just returning to the question of the merits of the appeal. There's a matter which your Honour questioned me about concerning clause 26.8 and the reference in it to exercising its rights. Can I just go back to that for a moment just to ensure there's no confusion that your Honour might have in relation to the union's position in respect of that clause.

PN297

The analysis is that what's referred to in that subclause, given that it forms part of a larger clause dealing with dispute avoidance and consultation, is the right of parties to the agreement to seek the assistance of the Commission for the prevention or settlement of a dispute over the operation of the agreement. That's what is identified by the clause and what the clause then picks up is the powers of the Commission identified under the Act.

PN298

Those powers then are identified by that clause as being the powers which the parties, by way of the private arbitration agreement, have agreed may be exercised by the Commission in relation to the dispute over the operation of the agreement. That's how we put it in relation to the construction of that clause.

PN299

JUSTICE GIUDICE: I understand your submission and it's useful to know that but I'm also concerned to know what your construction is of the Senior Deputy President's finding, in particular the first sentence of paragraph 18. It seems to me there are two ways of looking at the decision. One has to read the paragraphs together, obviously.

PN300

One construction is that the Senior Deputy President has simply decided to embark on a further hearing as to what powers might be available on the basis that he doesn't need the consent of both parties to do that. Another construction is that he's decided that section 26.8 is a separate source of power to settle disputes under the agreement and that that construction, I think, is the one that Mr Wood is concerned about.

PN301

I'm bound to say to you that if that were the correct construction, there's quite a bit in Mr Wood's submission that there's a sufficiently arguable case because that's a significant matter and one which would probably require quite a bit of argument. Now, it's really a question of what the Senior Deputy President has decided in that context. I'll be quite frank with you, if it's a finding that 26.8 is a separate source of power then I've got some great misgivings about the decision.

PN302

MR MOORE: I understand the issue you've raised, your Honour, and I think that as your Honour eluded to, one does need to see that sentence in the context of the paragraph and in the rest of the paragraph, his Honour goes on to consider the question of the powers that might be available and he observes that the provisions of the Act, the preserved provisions of the pre-reform Act haven't been fully addressed. That, we would suggest, is consistent with the former of your Honour's posited interpretations of what is on found below.

PN303

MR WOOD: Can I deal with the balance of convenience points in reply and I just want to make three points, your Honour. One is the question of the Commission's powers to stay the proceedings. We think it's not a matter of any great moment, your Honour, because the effect will be the same, that you can stay a proceeding or stay a decision.

PN304

We do note, your Honour, that we've put at tabs 14, 15, 16 and 17 four decisions. One of Senior Deputy President Polites, I think the time for appeal for his decision has long since run but he did issue an order staying the proceedings in the Qantas Airways case and Vice President Moore picked up your point, your Honour, and said he wasn't sure whether he had the power to stay the proceedings but he was prepared to assume that he had the power for the purpose of the exercise of the stay in three cases.

PN305

JUSTICE GIUDICE: It does raise the question. I mean, 120 is in the same form as 45 I think, isn't it?

PN306

MR WOOD: Yes, exactly the same form, your Honour.

PN307

JUSTICE GIUDICE: And it's a power to stay the operation of the whole or a part of the decision or a concern. It does raise the question of what precisely you wanted stayed.

PN308

MR WOOD: Well, your Honour, what we want the effect of the stay to be is for his Honour not to proceed further with the proceedings. So in substance, we would like an order akin to the one his Honour, Senior Deputy President Polites was prepared to make under relevantly identical powers in the Qantas case.

PN309

JUSTICE GIUDICE: Well, I'm not prepared to make that order.

PN310

MR WOOD: Well, your Honour, then we're happy - - -

PN311

JUSTICE GIUDICE: I just don't think there's the power to do it.

PN312

MR WOOD: It was something that concerned us, your Honour, which is why we dug the cases up that are before you. We understand exactly the point you make.

PN313

JUSTICE GIUDICE: Look, in most cases, it's a general order that the decision be stayed and there's an acceptance that the practical effect of that is that it won't go ahead but I just wondered in this particular case whether there's any point to the enquiry. What the Senior Deputy President has decided is that he's going to have a hearing and he's going to hear some argument about his powers.

PN314

MR WOOD: And he's decided that he's in the car, your Honour. He's got jurisdiction. It comes back to the point, bearing in my friend's submission, he's in the car.

PN315

JUSTICE GIUDICE: So you say he's got no jurisdiction?

PN316

MR WOOD: Yes, that's right, your Honour. That's our point. Secondly, related to that point on the balance of convenience, there's a prematurity argument and it does have some substance, your Honour. It's a point your Honour has made. But can we say, your Honour, if it had any real substance, what my learned friend would so is get up and say "We would like this proceeding adjourned until 4 o'clock Saturday. Let's wait and see what Senior Deputy President Lacy does" and we would be bound to accept, subject to the Commission, that everyone's got considerations of work/life balance, your Honour. Subject to all those considerations then - - -

PN317

JUSTICE GIUDICE: I think you've come to that fairly late, Mr Wood.

PN318

MR WOOD: Yes, your Honour. But what my learned friend does, we accept that Senior Deputy President Lacy is in the car. We accept he hadn't turned the engine on. But tomorrow, they're going to turn up and say "Take it for a drive, and drive it fast." Yet, here they say "We don't know what Senior Deputy President Lacy is going to do. He might not do anything."

PN319

The one thing he won't do is he won't get out of the car because he's already assumed that he's got jurisdiction to be in the car. So to that extent, it's not right for my learned friend to say "Well, who knows what he's going to do?" in circumstances where he's advocating that he do most extreme things, we would say, in relation to a jurisdiction he's already found.

PN320

I don't need to deal with most of what my learned friend said in balance of convenience because it was sufficiently said in our submissions unless you'd like me to address something particular on it, but the third point we make generally on the balance of convenience is there's actually no conflict between what the unions say they wish to stop and what they wish to have done.

PN321

There's no difficulty in having a small group of 380 employees vote, and your Honour indicated that what was the problem with them having the choice to vote whichever way they want, in relation to a real agreement which affects real rights. That doesn't conflict with a purely theoretical question that that group which is only about 1 or 2 per cent of the overall group of 11,000 might say in relation to the theoretical question. There's just no conflict.

PN322

You've got a small group who are saying "I want the right to have a vote on real conditions that affect real rights, including a pay increase next month" with the ballot in relation to a much broader group on a purely theoretical question. One should presume, one would think, that those who vote no in relation to the agreement, having regard to the industrial campaign that's being run, that is the agreement that is subject to a ballot Monday and Tuesday, those of the 380 who vote no are presumably going to vote no in relation to the proposition that there be an overall employee collective agreement and those who vote yes in relation to the real question on Monday and Tuesday out of the 380 that they'd like this agreement are presumably going to vote yes in relation to the theoretical ballot covering the 11,000 employees on the question of which form of agreement they would prefer.

PN323

So in truth, this is the point I make, there is no detriment to be suffered by the unions in circumstances where this current ballot, that is the ballot for the 380, is allowed to go ahead if it doesn't conflict with the right that they seek to have exercised before his Honour Senior Deputy President Lacy.

PN324

Your Honour, can I then move back to the arguable case and can I pick up the point that your Honour raised. If Senior Deputy President Lacy is saying no more than it doesn't require the consent of the parties for either of the parties to exercise their rights under the Workplace Relations Act, that is of course a proposition with which we agree.

PN325

Indeed, I invited my learned friend to identify the applications under the Act that he said that they could make and we indicated in our initial submissions that we wouldn't have any issue about all the evidence in this proceeding going into such applications, there being short service and the current hearing, 10am Saturday remaining. But there was silence. There wasn't one section identified which would allow the Commission to exercise the powers under section 111 that my learned friend wants the Commission to exercise.

PN326

He said three different things. His first proposition, your Honour, in answer to your Honour's questions about section 111 powers having to attach to some substantive jurisdictional right, after you asked him about that, your Honour, he said "Well, the parties have agreed to confer any other power that the AIRC has and for the AIRC to do what it needs to to resolve the dispute." Now, that proposition must be based on what your Honour has regarded as the second way of reading Senior Deputy President Lacy's decision because the jurisdiction is assumed by the operation of clause 26.8.

PN327

My learned friend then said it a different way and said "What the clause does, it picks up a right of a party to seek a remedy", he didn't use the word power, "or relief that might be available to them under the Act" and of course that's a proposition with which we agree. If right and remedy mean both jurisdiction and power, that is if you can identify a section under the Act that gives you the jurisdiction to get to the Commission then of course you can have whatever remedy, that is have the Commission exercise whatever power there is available according to that jurisdiction, in your favour.

PN328

The same for the word relief. If relief means identify a section under the Act that gives the Commission jurisdiction then of course you can have the Commission give you that relief by the exercise of whatever powers are appropriate to that relief. But then by the end of his submissions, he came back to where he started initially in response to your question, your Honour, and he said "The right of the parties to agree to seek the assistance of the Commission in relation to a dispute over the application of the agreement confers all powers of the AIRC."

PN329

So we've moved away from rights and relief and we're back to all powers of the AIRC identified and the parties have agreed that they may be exercised. Now, that proposition is on the basis that clause 26.8 represents some separate source of jurisdiction.

PN330

JUSTICE GIUDICE: In fairness, I think that I was asking Mr Moore as to the submissions he was going to make as to what could be done. The issue here is what the Senior Deputy President has decided.

PN331

MR WOOD: Yes, your Honour, we accept that. But what happened initially was the proposition your Honour put as clause 26.8 representing a separate source of jurisdiction is the very argument that was put by Mr Fetter. That's why we're here. He said there are two routes to get access to the Commission's power. One is through clause 26.6 and one is through clause 26.8.

PN332

That's what Senior Deputy President Lacy was asked to find and that's what he decided in paragraph 18 and he's prepared to accept that he has jurisdiction and he's about to exercise that jurisdiction. At any time, my learned friend can get up and stop me and say "No, we don't say that, we're going to say tomorrow, 'Your Honour, clause 26.8 does not confer a separate source of jurisdiction on you. You misunderstood our submissions. The only rights we have are the rights we can identify are the Act.'"

PN333

But of course they're not going to say that. That wasn't their position before him on 8 September. They've got the benefit of the decision. They want to protect it. They want to use that jurisdiction which his Honour has said that he has to then use powers that the Commission wouldn't otherwise have to do to override a ballot that's been in place for two weeks and to ask the Commission to make a broader order.

PN334

That's really why we're here, your Honour, and that's the process arising from the jurisdiction that the applicants asked his Honour to find which his Honour did find is the process that we're asking to be stopped by reference to a stay of the decision.

PN335

JUSTICE GIUDICE: Thank you, Mr Wood. It's necessary to adjourn for awhile to consider what's been put. I'll give my decision at 1 o'clock.

<SHORT ADJOURNMENT [12.36PM]

PN336

JUSTICE GIUDICE: Thank you for waiting. This is an application by Telstra Corporation Limited for a stay of operation of a decision made by Senior Deputy President Lacy on 8 September 2008, pending the determination of an appeal against that decision subject to any later agreement between the parties. The terms of section 45(1)(g) of the Workplace Relations Act 1996 pre-reform are invoked by the appeal.

PN337

The Senior Deputy President's decision dealt with the construction of a dispute resolution provision in a workplace agreement between Telstra and the union respondent's to the appeal, APESMA, CPSU and the CEPU. The agreement is the Telstra Enterprise Agreement 2005-2008.

PN338

So far is relevant, the agreement reads at 26.6:

PN339

If a matter in dispute remains unresolved, the parties may refer it to an agreed mediator which may be the Australian Industrial Relations Commission.

PN340

At 26.8:

PN341

Nothing in the procedures prevent any party from exercising its rights under the Workplace Relations Act 1996.

PN342

The unions applied to the Commission on 28 August to have a dispute resolution process conducted pursuant to the agreement. The application was dealt with by Senior Deputy President Lacy. Telstra contended before the senior deputy president that while it was prepared to concede for the purpose of the argument that there was a dispute over the application of the agreement and that the matter was unresolved, that it had not agreed to refer any matter to mediation, it had not agreed a mediator and that the unions therefore had no standing to refer the matter to the Commission in those circumstances.

PN343

The senior deputy president decided that clause 26.6 of the agreement could not confer jurisdiction on the Commission unless the parties agreed. He went on to find, however, that clause 26.8, the reservation of rights under the Act, should not be read subject to clause 26.6. On this view, the requirement in 26.6 for consent to the exercise of mediation powers by the Commission does not carry over into clause 26.8.

PN344

The senior deputy president indicated he would hear further argument on the powers that might be available to the Commission. In doing so, he indicated that in his view, a number of questions of power had not been adequately addressed in the submissions to that stage. Proceedings are listed for further hearing before Senior Deputy President tomorrow, 13 September 2008.

PN345

The parties are agreed that should I stay the decision of 8 September, the practical effect will be to stay the proceedings tomorrow. The unions have indicated that they will contend before the Senior Deputy President that the Commission has the power to make orders requiring Telstra to postpone a planned ballot of a section of its employees on an agreement which Telstra proposes should be made. They will also contend that the Commission should make orders for a ballot of the whole of Telstra's workforce on a question as to the type of workplace agreement the workforce favours.

PN346

The Senior Deputy President will therefore be required to consider whether the Commission has power to make such orders and if so, whether some or any of them should be made. The approach to applications of this kind is well known. There is a two-fold test. There must be a sufficiently arguable case that leave will be granted and the appeal will succeed and the balance of convenience must favour the grant of a stay.

PN347

I deal first with the question of whether there is a sufficiently arguable case. There are two views as to the import of the Commission's decision. 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. The second is a more limited view of the effect of a decision, namely that the Senior Deputy President has decided simply that the Commission can hear the parties without the requirement for consent in clause 26.6 as to what other powers can be exercised under the Act in the circumstances.

PN348

Telstra submitted that I should accept the first interpretation. If that interpretation were correct, I would be inclined to find that there was a sufficiently arguable case that the appeal would succeed. However, I do not understand the Senior Deputy President to have gone that far. The construction which seems to me to be the preferable one, and the one which the unions tentatively adopted in argument, is the more restricted one.

PN349

In my view, a balanced reading of the decision indicates that the Senior Deputy President has not decided that clause 26.8 of the agreement is a separate source of power to settle disputes over the application of the agreement. Rather, he has decided to hear the parties as to the powers that might otherwise be available to the Commission in the current circumstances.

PN350

On the submissions before me, which were admittedly limited, it is difficult to identify a source of substantive power in the Act that the Commission can exercise in the current context. To that extent, Telstra's submissions have considerable force. Nevertheless, the better course at this stage appears to be that the proceedings should continue before the Senior Deputy President as planned.

PN351

An application for a stay of operation of a decision should not become a vehicle for a decision on the merits. What the Senior Deputy President has so far decided, properly considered, does not indicate, to my mind, any jurisdictional error. For that reason, I find there is no sufficiently arguable case. Given that finding, it is not strictly necessary I deal with evidence and arguments as to the balance of convenience.

PN352

It is appropriate to indicate, however, that most, if not all, of the material advanced by Telstra was directed at the stay of operation of an order which might never be made. For these reasons, the application for a stay of operation of the Senior Deputy President's decision is dismissed. The decision will be reduced to writing and made available to the parties before the end of the day. If there is nothing else, I shall adjourn.

<ADJOURNED ACCORDINGLY [1.17PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

AUDIO MALFUNCTION PN1
EXHIBIT #TA1 STATEMENT OF DARREN FEWSTER PN78