C2008/3180, Transcript of Proceedings [2008] AIRCTrans 698 (3 November 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 19187-2

COMMISSIONER SMITH

C2008/3180

s.170LW - pre-reform Act - Application for settlement of dispute (certified agreement)

Airservices Australia
and
Civil Air Operation Officers' Association of Australia
(C2008/3180)
Airservices Australia Certified Agreement 2005-2008 (Air Traffic Control and Supporting Air Traffic Services).

(ODN AG2005/8678)
[AG845691 Print PR9670891]

MELBOURNE

10.05AM, FRIDAY, 17 OCTOBER 2008

Continued from 09/10/08

Hearing continuing

PN178

THE COMMISSIONER: Any changes in appearances?

PN179

MR PARRY: If the Commission pleases, I seek leave to appear with my learned friend Mr Jacobs for Airservices.

PN180

THE COMMISSIONER: Thank you, Mr Parry, leave is granted. Mr Bromberg.

PN181

MR BROMBERG: Thank you, Commissioner. Commissioner, when the matter was last before you on 9 October, the Commissioner was told Civil Air wanted to run a jurisdictional argument and the matter had been listed for that purpose today. You recall my learned friend Mr Jacobs gave you a bit of an opening which was limited to material contained - I don't know if it was ever marked, I don't know if it needs to be but the material that came with the application, a number of documents attached and I think he said that that would be the entirety of the material, save for some further material that he wanted to expand upon in relation to another document that I think he handed up which was a survey type document. In any event, Commissioner, I say all that because yesterday we got 102 pages of material which I am not sure if you got it at the moment, Commissioner, but no doubt it will be sought to be relied upon. It is a statement of Peter Curran with exhibits.

PN182

THE COMMISSIONER: And Roderick Frederick Lee.

PN183

MR BROMBERG: There's two, yes.

PN184

THE COMMISSIONER: There's two.

PN185

MR BROMBERG: One of Rodney Frederick Lee and one of Peter Curran.

PN186

THE COMMISSIONER: Yes, and the outline I've got also.

PN187

MR BROMBERG: Yes. Now, there are a number of matters in that material that go beyond the evidence that was foreshadowed. I don't wish to complain about that, other than to say, Commissioner, this that there may be a further jurisdictional argument that we wish to run beyond the arguments we will run today which we can't run today because we need to respond to some of the further material that we weren't expecting and we haven't really had a chance to respond to. I just want to say that so that no one is surprised. We wouldn’t seek to run that independently of the hearing as to the merits if - - -

PN188

THE COMMISSIONER: Should you be unsuccessful today.

PN189

MR BROMBERG: Should we be unsuccessful today, but I just want to make that clear so that nobody is surprised and no complaint is made. We need to deal with the statement of both Mr Curran and Mr Lee in one respect, and that is that whilst we don’t disagree that at this juncture, given that we have got a knock out jurisdictional claim that we want to put, we don't disagree that at this juncture my learned friend is entitled to rely upon the evidence at it's highest, that is prior to the evidence being devalued or whatever by cross-examination or anything else that might occur. But we do say that he is only entitled to rely upon the statements insofar as they contain evidence, not insofar as they contain submissions or conclusions. There is material of that kind and we do object to it. There may be a whole range of other objections that we will raise if the matter should go beyond the stage we are currently at. But can I identify first in relation to the statement of Mr Curran the matters that we say are objectionable. If your Honour goes to paragraph 21. It's the second sentence, it reads,

PN190

The fact that Civil Air and some ATC's hold that view has already caused serious service interruptions.

PN191

So the witness begins by saying that,

PN192

The ATC are able to refuse work conditions allowance merely because they hold a personal view that this is not convenient.

PN193

So it's putting up a proposition and then what is in fact no more than a submission is put that Civil Air and the ATC's hold that view. If there is evidence to substantiate that they do then my learned friend can rely upon it, but that is objectionable. Then at 23, last sentence,

PN194

Civil Air and some ATC's appear to hold the view that working overtime is optional and cannot be required.

PN195

Again, we say that is just a submission or conclusion, it is not evidence and is objectionable. Paragraph 32, first sentence,

PN196

The inequitable distribution of overtime worked by ATC's are consistent with the fact that some ATC's do not accept the Airservices view as to how clause 4.3.1 is to be applied.

PN197

Same character. Then paragraph 43, last sentence,

PN198

It is not clear to me why Mr Star stated that Airservices expectation and the requirement to work reasonable additional hours which arise from it was threatening, unless Mr Star and Civil Air held the view that the agreement did not place an obligation on ATC's to work reasonable additional hours.

PN199

Again just a submission. 47, this is a commentary on a letter that you have before you and in the last sentence it said,

PN200

Mr Maguire did not address Airservices' view that each ATC is required to work a reasonable amount of additional hours if that requirement becomes necessary.

PN201

Well you can decide that for yourself, Commissioner, we don't want the commentary of the witness, it's not evidence. Paragraph 52, there is reference to the protocol and then there's a submission that Civil Air disputes Airservices' view concerning that issue, that's the last sentence. Paragraph 62 is a commentary upon what is said to have happened in the Commission when a related matter was here on a section 496 application. What is objectionable is the first sentence of 62,

PN202

However, Civil Air retreated from this position at the end of the proceeding.

PN203

I don't think my learned friend Mr Dowling appreciates being verballed and that's really what's happening, but if they want to verbal him they can do it in submissions, they don't need this witness to do it. Then paragraphs 73 through to 78 is just a submission as to what is in dispute and all of that should go. Then if we turn to the statement of Mr Lee, paragraph 13. It is really a submission, it is put on the basis of his experience but there is no foundation whatsoever, he doesn’t identify any view that he has heard put by Civil Air to substantiate what he says is his experience, nor does he identify any view put by any ATC which would support the conclusion that he there puts, so we object to the whole of 13.

PN204

Paragraph 38, again just a submission, an assertion that there is a difference of opinion, an assertion as to what view Civil Air holds and what view ATC's hold. No doubt my friends can make those submissions but they will need to make it on evidence. The last sentence of paragraph 40, and the submission that there is a dispute concerning the application of clause 4.3.1, of course that is a matter for you, not for the witness. Those are the matters that we object to, if the Commission pleases.

PN205

THE COMMISSIONER: You are not asking me to make rulings on those now are you? Just so that I am alive to your concerns.

PN206

MR BROMBERG: Yes, I don't think that you do need to make rulings because my friend for the purposes of today may not want to rely on any of that, but insofar as he does want to rely on any of the matters that I have gone to, then we say he is not entitled to, then it is not evidence, it is essentially submissions or conclusions which are not founded upon any evidence and for the purpose of resolving the jurisdictional matter, insofar as you are asked to rely upon any of that we say you should not.

PN207

THE COMMISSIONER: Yes, this is a brief housekeeping matter, I indicate that I have got to rise at about 12.30 until about 2.30. I only say I wish it was lunch.

PN208

MR BROMBERG: I get the impression, Commissioner, that the Commission currently would like a bit more assistance and I understand why. I can't offer that sort of assistance but I can only offer assistance in this case and that's what I will turn to now.

PN209

THE COMMISSIONER: Thank you. We will turn to the determinations sought, is that a convenient place?

PN210

MR BROMBERG: Well it is convenient to identify what that is. We only saw this for the first time at six o'clock yesterday, which in itself is somewhat telling I suppose. It's not often that you have a dispute where it takes a number of weeks for a claimant to identify what it is they want, but anyway that's just an aside. I will come to it in due course, but I am pleased to hear, Commissioner, you have got a copy of it because I will want to take you to it.

PN211

THE COMMISSIONER: Thank you.

PN212

MR BROMBERG: I would like to begin, Commissioner, by identifying a number of statements which I am sure are not going to be regarded as contentious about the nature of the Commission's jurisdiction under 170LW. I would like to hand up two decisions, the first is the meter readers case, automated meter reading services in Australian Municipal Administrative Clerical and Services Union. In particular can I draw the Commission's attention to paragraph 66 in the decision of the Full Bench where the Full Bench falls in the second line,

PN213

The existence of a DO2AA which is a dispute over the application of the agreement is also a condition precedent to the exercise of jurisdiction under section 170LW in injunction with an empowerment in a certified agreement.

PN214

So we go to that case simply to make the point that the existence of a requisite dispute is a condition precedent to the exercise of jurisdiction. The next case that we want to take you to is the decision of Lacy SDP in Maritime Union of Australia v. Australian Plant Services Pty Ltd. Here we refer you to paragraph 57 of the Senior Deputy President's decision. I won't read it, it's an often quoted paragraph which I am sure you will be aware of. In essence what it's saying is that the first task of the Commission is to ascertain the character of the dispute that is before it in order to determine whether the matter is a dispute over the application of the agreement.

PN215

It's not a dispute over the agreement but a dispute over the application of the agreement and that observation has been followed in many, many decisions of this Commission, including in the Full Bench decision of Watson SDP, Kaufman SDP and Commissioner Foggo in SDA v. Big W Discount Department Stores. We have got a copy of that to hand up. The next legal proposition I want to put, and I am sorry we don't have the decision, but the Commission will know that the Commission's jurisdiction in section 170LW cases depends on two things. It depends firstly on the jurisdiction conferred upon the Commission by the terms of the dispute settlement clause, and secondly by the terms of section 170LW. So it is the two together that do or do not confer jurisdiction upon the Commission, that is the Telstra Full Bench, the appeal from the decision of Lawler VP, I am sorry I don't have a copy.

PN216

THE COMMISSIONER: That's all right, you dealt with it in the private arbitration case in the High Court.

PN217

MR BROMBERG: Yes. Then, Commissioner, given that the starting point is the dispute resolution clause, could I take you please to clause 3.4 of the relevant agreement, a copy of which I have. If you don't have it elsewhere you will find it attached to the application.

PN218

THE COMMISSIONER: I have had cause to refer to it before.

PN219

MR BROMBERG: Yes. 3.4.1 says this,

PN220

In the event of a dispute arising in the workplace -

PN221

And I would ask you, Commissioner, to underline at least in one's head the words "arising in the workplace",

PN222

- about matters -

PN223

And underline the word "matters" as well,

PN224

- regulated by this agreement. So in the event that there is a dispute of that kind the procedure to be followed to resolve the matter -

PN225

And again I emphasise the word "the matter",

PN226

- will be as follows: the immediate supervisor will be notified; arrangements will then be made to meet and confer on the matter. All relevant information regarding ...(reads)... employees may choose to be represented by the union or other representatives of their choice.

PN227

Then 3.4.2,

PN228

If the matter cannot be resolved by following the process outlined above, it may be referred in accordance with section 170LW of the Act to the Commission to settle the dispute over the application of the agreement.

PN229

What is clear from the terms of the dispute resolution clause is that it's not dealing with simply a dispute about the agreement. The dispute must be about a matter. The matter is not the agreement. The matter is separate from the agreement but is constituted by a situation that must be regulated by the agreement. You will see that from the opening to the paragraph it's a dispute not simply about the agreement. If it was read that way you would read out of it the following words, "arising in the workplace," and "matters regulated by". So the first thing that is clear about 3.4.1 is that you need more than a dispute about the agreement. You need a dispute arising in the workplace about a matter separate from the agreement but a matter that is regulated by the agreement.

PN230

The matter must arise in the workplace and it's clear when you look at sub-paragraphs A, B and C, together with the fact that the matter must arise in the workplace, that the dispute must involve a dispute as a disputant. Then could I ask you to look at clause 3.2.1 which is the clause which is said to be the subject of the dispute. That clause says,

PN231

We expect that you will work a reasonable amount of additional hours if the requirement becomes necessary.

PN232

That seems to be the expression of an expectation.

PN233

You may choose not to work additional hours in circumstances where the working of such hours would result in you working hours which are unreasonable after consideration of any risk to your health and safety, your personal circumstances, the needs of the workplace -

PN234

Et cetera. The clause is clearly dealing with a particular request. It is regulating the making of particular requests for the working of additional hours and the circumstances in which a particular request may be refused by the particular individual. That is clear form both it's content and it's style. It is directed to the employee and in dealing with the circumstances in which an employee may choose not to work additional hours.

PN235

The next thing I want to do is apply the dispute resolution clause 3.4 to clause 4.3.1. When you put them both together it is clear that a dispute can arise about a refusal by an employee of a request to work additional hours in the workplace. A dispute can arise in a workplace about a refusal by an employee of a request to work additional hours.

PN236

THE COMMISSIONER: An unreasonable refusal.

PN237

MR BROMBERG: Yes, yes. A dispute of that kind satisfies the elements of the dispute resolution clause. The matter that the dispute resolution clause identifies relevantly for a dispute of this kind is whether or not additional hours should be worked, whether or not it's reasonable or unreasonable for additional hours to be worked. That is the matter. The dispute is the refusal to work the additional hours or the rejection of the request. The disputants in that dispute are the employer and the employee who has chosen not to work the additional hours. That kind of a dispute is a dispute over the application of clause 4.3.1 because in that dispute that I have identified the employer is claiming that the employee has failed to apply the clause. There is no dispute of that kind before the Commission.

PN238

The alleged dispute here is about the agreement, what does the agreement mean? The alleged dispute here is not about a matter regulated by the agreement. The alleged dispute here over what the agreement means and whether Airservices' interpretation of it is correct and whether Civil Air's interpretation of it is any different and/or correct, is not a dispute that has arisen in a workplace. It is not a dispute that involves any particular matter, that is a particular set of facts and circumstances constituting a matter regulated by clause 4.3.1. There is no evidence before you of a request and a refusal which is said or could constitute the matter. No employee is alleged to be a disputant.

PN239

When you look at the application the other relevant party to the dispute is said to be Civil Air. There is no allegation either in the application or in any of the material that any particular employee has failed to apply clause 4.3.1. You will see in the material it said employees unidentified have rejected requests, but that is not enough. What the employer needs to identify is which employees in which workplace rejected a request and in doing so failed to apply clause 4.3.1.

PN240

THE COMMISSIONER: Would you go so far as to say the views of Civil Air have no impact upon the operation of the agreement?

PN241

MR BROMBERG: Not in this clause because clause 4.3.1 doesn’t require Civil Air to do anything.

PN242

THE COMMISSIONER: The agreement rarely identifies Civil Air as having a duty.

PN243

MR BROMBERG: That's right.

PN244

THE COMMISSIONER: I'm just curious to know whether that means that it doesn't have the capacity absent a duty to raise an issue about the proper application of the agreement.

PN245

MR BROMBERG: In relation to the clause?

PN246

THE COMMISSIONER: Yes, in relation a clause.

PN247

MR BROMBERG: Yes, it has that capacity where the clause imposes an obligation on the employer and Civil Air as a party to the agreement can, if you have all of the elements of the dispute resolution clause made out, be a party to that kind of dispute because Civil Air, in conjunction with the relevant employee, can be saying you the employer are not applying this clause and we are in the dispute with you because you don't apply that clause.

PN248

THE COMMISSIONER: Yes, I follow.

PN249

MR BROMBERG: What Airservices can't say to Civil Air about clause 4.3.1 is that you, Civil Air, are not applying the clause and we have got a dispute with you over the application of the clause, because the clause doesn't require anything of Civil Air. The clause is directed both in its terms and the individual nature of it's style but also more importantly because the jurisdiction depends on the dispute resolution clause. The existence of a dispute in relation to a matter regulated by 4.3.1 must involve an employee because the employee has the obligation under the clause, not Civil Air and the dispute must arise in the workplace, and the dispute must be identifiable by reference to a matter, and it is clear that the matter insofar as 4.3.1 deals with employee conduct is the refusal to work additional hours.

PN250

Airservices' case, Commissioner, is based on a rewriting of clause 3.4.1. They strike out the words in the opening sentence of 3.4.1, "arising in the workplace", they strike out the words, "matters regulated by", and they want to tell you that 3.4.1 says in the event of a dispute about this agreement the Commission has the capacity to resolve it. Those words, Commissioner, have work to do. They are not there for the sake of it, they are there to identify that a dispute must arise in the workplace and it must be about a matter separate to the agreement but regulated by the agreement. It can't be simply a dispute about the agreement and what the agreement means. Your jurisdiction, Commissioner, depends upon the existence eof more than a dispute about this agreement.

PN251

All that is alleged by Airservices is a dispute about the agreement, that is the meaning of clause 4.3.1, and it is only a dispute that is alleged to exist between Airservices and one other person, that is Civil Air. If other persons, particular employees, were part of the dispute they would have been and should have been made disputants, and of course the way that clause 3.4.1 works is that if the employer is in dispute with a particular employee or employees, the obligation is to follow the procedure for the immediate supervisor to be notified. I suppose a starting point is for the employee to be notified. The immediate supervisor to be notified, arrangements must be made to meet and confer, information must be exchanged and given to that employee. If it's not resolved with the employee in meetings of that kind then it goes onto a senior level.

PN252

You can't just come into the Commission and say we are in dispute with employees, some of our employees, we can't tell you who, we don't know which employees are misapplying the clause, we can't identify them by name, we can't identify them by category, all we do is say to you there are some employees we think are misapplying the clause. That, Commissioner, Airservices says is a requisite dispute which has come here validly in accordance with clause 3.4.1. Well that just can't be right. A starting point is identifying an employee that you are in dispute with, identifying a workplace where that dispute has arisen, identifying the matter that is in dispute and then identifying how that matter is regulated by the agreement, and lastly identifying a grievance in relation to that employee's conduct which shows that there is a dispute about the application of clause 4.3.1. Now you have none of that in relation to no employee. Clause 3.4.2 seeks, in our respectful submission, to properly reflect the way in which section 170LW works.

PN253

THE COMMISSIONER: Could I just make you pause for a moment, I understand the proposition that you put, the difficulty I am having is identifying what you say are the duties, rights and obligations or what might be the duties, rights and obligations of a registered organisation party to an agreement, and whether or not it's views as to how the agreement to which it is a party is applied is relevant if in circumstances it only engages an employee and the employer. So in proceedings it appears as agent, not as a party because it has no standing as a party because it has no interest.

PN254

MR BROMBERG: It has an interest but - - -

PN255

THE COMMISSIONER: Where in terms of the agreement that you have just articulated.

PN256

MR BROMBERG: Yes, in terms of the agreement it's there as the representative of the employee in relation to the dispute that has arisen in the workplace that has involved the employee.

PN257

THE COMMISSIONER: I understand that but it has no independent view other than as a representative of the employee.

PN258

MR BROMBERG: It may have.

PN259

THE COMMISSIONER: It takes instructions from the employee.

PN260

MR BROMBERG: No, not necessarily, it's view's not relevant. It's view can't be the matter, that's the point, that it doesn't matter what Airservices' view is - I'm sorry, it doesn't matter what Civil Air's view is. The matter that can give rise to a dispute in the combination of 3.4 and 4.1.3 is the refusal by the employee to work additional hours. Now whether or not that refusal was based upon the employee's own view or my view or your view or the view of Civil Air is irrelevant. The only matter that can be in dispute is whether or not the employee in doing what the employee did has misapplied the clause.

PN261

THE COMMISSIONER: What is the role for the objective intention of the parties in reaching an agreement?

PN262

MR BROMBERG: In interpreting the agreement?

PN263

THE COMMISSIONER: Well they can't do that.

PN264

MR BROMBERG: No, no, that's exactly the point.

PN265

THE COMMISSIONER: That's what you've said to me, I can't do that.

PN266

MR BROMBERG: Yes, but that's what you've been asked to do.

PN267

THE COMMISSIONER: No, but what is the role of the objective intention of the parties.

PN268

MR BROMBERG: No, no, I don't say you can't interpret agreements, Commissioner, of course when you have got a dispute before you, a dispute about whether the agreement is or has been applied, in order to resolve that dispute you are entitled to, as a number of Commission decisions demonstrate and most of them are on my learned friend's list, you are entitled to work out what the clause means. But because you are interpreting, that is not the basis of your jurisdiction, you have got to have the dispute first.

PN269

THE COMMISSIONER: So you don't have any difficulty with the notion in Cram, for example, that the Commission is entitled to take a view as to the meaning of the clause in the exercise of it's jurisdiction as to how it should be applied.

PN270

MR BROMBERG: Of course not, of course not, and that is the great fallacy in our learned friends' submissions that they seek to ascribe to us, that approach. Obviously the Commission has a role within jurisdiction of interpreting the agreement, but you can't found your jurisdiction on the basis that you have got that role. You have got to find your jurisdiction on the basis that there is a dispute in this case arising in the workplace about a matter.

PN271

THE COMMISSIONER: And in the context of what is alleged to be a dispute, your client's views are not relevant.

PN272

MR BROMBERG: No, how can they be? A dispute of the relevant kind under 4.3.1 is a dispute about what the employee has refused to do.

PN273

THE COMMISSIONER: Yes.

PN274

MR BROMBERG: The employee might have done it for all sorts of reasons, none of that is relevant, what is relevant is whether or not the clause has been applied or not applied.

PN275

THE COMMISSIONER: Yes, I follow, thank you.

PN276

MR BROMBERG: Now, the way in which the dispute settlement clause applies or works really reflects the way we say section 170LW works. Even if we're wrong about that it doesn't matter because your jurisdiction comes from 3.4.1 initially and if we're right about 3.4.1 it doesn't matter that we're wrong about 170LW, but there is a consistency between the two and I want to say something about the way in which 170LW works. Does the Commission have a copy of 170LW, you probably don't need to.

PN277

THE COMMISSIONER: The answer is yes, the question is where.

PN278

MR BROMBERG: We can hand up a copy, we have got a - Mr Dowling's old one which I'm sure he will say is a boomerang.

PN279

THE COMMISSIONER: I'm grateful, I'm sure the notations will be particularly helpful.

PN280

MR BROMBERG: I should say, 3.4.2 in the dispute resolution clause reflects the words that come from 170LW.

PN281

THE COMMISSIONER: Yes.

PN282

MR BROMBERG: 170LW says that,

PN283

Procedures in a certified agreement for preventing and settling disputes between the employer and employees whose employment will be subject of the agreement may, if the Commission so approves, empower the Commission to do either or both of the following: to settle disputes over the application of the agreement.

PN284

Then B which is not relevant for our purposes. We say that a dispute over the application of the agreement requires there to be a dispute as to whether in relation to a particular situation arising in the context of the employer/employee and the employment relationship, the agreement has or is being applied. What the words don't say is that the Commission may settle a dispute over the interpretation of the agreement. The word is "application", not interpretation.

PN285

The jurisdiction is not enlivened merely by a dispute which asks the Commission to settle how the agreement works. As I said, you may have to do that if you have a requisite dispute before you, but that is not what gives rise to the jurisdiction. The jurisdiction is to settle the dispute over whether or not the agreement has or is being applied to a matter at issue which has created the dispute.

PN286

THE COMMISSIONER: It provides an interesting dilemma and given this is preceded by way of a 496 in an earlier manifestation, doesn't that proposition mean that an order under 496 if it's demonstrated that there is industrial action can be made against the union that in proceedings under 170LW the union has no view. It can't then agitate for a meaning which might remove the context of the industrial action.

PN287

MR BROMBERG: The union can agitate for a meaning, I am not suggesting that the union when - in relation to a 170LW dispute, once you are seized of jurisdiction and you are involved in an interpretative exercise as to what the clause means, obviously the union can be here telling you what it means.

PN288

THE COMMISSIONER: Yes, I see.

PN289

MR BROMBERG: Just as the employer can, just as any other disputant can. The difference between section 496 and this dispute resolution clause is that in a 496 application there is an allegation made about the conduct of the union.

PN290

THE COMMISSIONER: And the employees.

PN291

MR BROMBERG: And the employees.

PN292

THE COMMISSIONER: Yes.

PN293

MR BROMBERG: And the conduct is the threatening or taking of industrial action. With respect, Commissioner, that says nothing at all about how 3.4.2 operates or how 170LW operates.

PN294

THE COMMISSIONER: Yes.

PN295

MR BROMBERG: I suppose relevantly and in particular in relation to 4.3.1 that analogy only serves to underline that in 3.4.1 there is nothing that the union is called upon to do or can do, unlike 496 when we're dealing with industrial action. It can organise industrial action, but it can't do anything in application of 4.3.1. It's got nothing to do, and in that context you can't have a dispute about what the union thinks the clause means. That can't be the matter that has arisen in the workplace and regulated by the agreement.

PN296

Now, the way that our learned friends seek to interpret section 170LW in essence is to strike a line through "over the application", through the words "over the application of the agreement", replace it with, "over the interpretation of the agreement", and ignore the fact that a dispute over how an agreement is or has been applied must inherently be a dispute about an underlying matter, something that has happened, some particular conduct, some activity or non-activity which has a connection to the agreement and the action or inaction can be said to be in non-application of the agreement.

PN297

That's our first way in which we put the lack of jurisdiction. I suppose as part of the first argument can I take the Commissioner to the order that is sought, because I think it sort of emphasises the nature of the problem and the nature of the jurisdictional problem. One thing you will see immediately is that nothing is sought of Civil Air. Nothing. If you made an order of this kind, who would it apply to? It wouldn’t apply to the employees. They're not disputants, they're not here in any way, shape or form. It might apply to Airservices, but it's a strange situation where Airservices comes to the Commission and seeks an order that Airservices should do something.

PN298

You see, the kind of determination that a properly constituted dispute dealing with 4.3.1 would be calling for is a determination like this employee or those employees should apply clause 4.3.1 by not refusing to do additional hours other than in accordance with the clause, and there may be other things you say but - and that would be based on a finding that there has been a misapplication.

PN299

THE COMMISSIONER: No, I understand. The effect of your first submission is that there is no evidence to say that employees are applying the clause in any particular way.

PN300

MR BROMBERG: No, but it's more than that, Commissioner, there is no evidence that any particular employee or employees are applying the clause in any particular way. The only evidence is that the rate of refusals is higher today than it was at some other period. So the evidence that you will see in the statement says - examples of it are I, the manager called for employees to work additional hours, I asked 10, eight refused or all refused. But the employees aren't identified, we don't know who they are, we don't know - no allegation is made against them, there is no allegation that any employee has refused because of the employee misapplying the terms of 4.3.1.

PN301

Absent that, you don't have a matter. You have at best, and we will come to why they don't even have this, at best you have got a dispute about interpretation between Airservices and Civil Air, but that is not about a matter arising in the workplace involving the misapplication by an employee of the clause. Now, the next matter we want to deal with is based on the rejection of the first argument. So if we're wrong, and there can be, pursuant to the dispute resolution clause in combination with 4.3.1, a dispute between Airservices and Civil Air about how 4.3.1 is to be interpreted, assuming your Honour is against us on all of that and your Honour says you have got jurisdiction in relation to a dispute of that kind if a dispute can be evidenced, we say to you that there is no evidence of a difference in interpretation as between Airservices and Civil Air over clause 4.3.1, and certainly not evidence that would demonstrate a real dispute.

PN302

THE COMMISSIONER: You go so far as to say you take no issue with 3 and 4 of the determinations sought?

PN303

MR BROMBERG: That's not the question.

PN304

THE COMMISSIONER: I'm sorry, did I ask another one?

PN305

MR BROMBERG: I didn't mean that you're not allowed to ask questions. The dispute, Commissioner, relevantly has to arise in the workplace.

PN306

THE COMMISSIONER: Yes.

PN307

MR BROMBERG: What's happened in this case is that nothing has arisen in the workplace as such, nobody has written to the employees and said - written to any particular employee and said, you are misapplying the clause because your interpretation of the clause is X and our interpretation of the clause is Y, that's the first point. The next point - even if you don't need a particular employee what you have had is correspondence between Airservices and Civil Air, and after the application has been brought to the Commission and not in the workplace but in the Commission, Airservices want to float yet further interpretations, new interpretations, different interpretations, of what the clause means that is different to what they put to Civil Air prior to the dispute being brought to the Commission.

PN308

Now I want to deal firstly with what was put in the correspondence, and the most recent articulation by Airservices in the correspondence as to the meaning of clause 4.3.1 is in the letter that Mr Mueller wrote to Mr Magoine of
7 October 2008. If you look at that letter and you go to the third paragraph,
Mr Mueller says,

PN309

At the commencement of that proceedings during brief opening submissions, your counsel stated that Civil Air agreed with Airservices that it's ATC employees are required under the certified agreement to work reasonable additional hours.

PN310

With respect, Airservices agrees with that proposition. The provision does impose such a primary obligation. As we see it the clause then goes on to provide and make clear in effect that if working particular additional hours would result in an ATC working hours that are unreasonable on a consideration of the matters referred to in clause 4.3.1A to E then it would be legitimate for an ATC to decline to work those hours and Airservices cannot properly say if such a refusal that there is a failure to comply with the obligation to work reasonable additional hours.

PN311

Then can I take you to the earlier correspondence from Civil Air of
6 August 2008. I should have said the letter I have taken you to was PC16, I hope you got that.

PN312

THE COMMISSIONER: Yes, that's right.

PN313

MR BROMBERG: The letter I want to take you to now is PC10 and the third paragraph,

PN314

Civil Air does not disagree with the proposition that ATC should work a reasonable amount of additional hours in accordance with clause 4.3.1 of the agreement. As is evident from the terms of clause 4.3.1 in relation to any particular request an individual may choose not to work additional hours where the working of such hours would result in that individual working hours which are unreasonable after consideration of the criteria specified in clause 4.3.1.

PN315

There is no meaningful difference in the interpretations of Airservices and
Civil Air to be found in those views. Whether Airservices sees the obligation in clause 4.3.1 as a primary obligation is immaterial. What the parties are agreed upon is that the clause entitles an ATC to decline to work additional hours if to do so would be unreasonable after a consideration of the matters in 4.3.1A to E. Both letters say that. So we say even if it's possible to have a dispute between the employer and the union based on different interpretations of this clause, there is no meaningful difference and therefore no dispute in this case. Now, the correspondence that I have taken you to - - -

PN316

THE COMMISSIONER: That's using the words themselves, I understand what you put.

PN317

MR BROMBERG: Yes.

PN318

THE COMMISSIONER: You would have to have evidence I suppose on your submission if Airservices wanted to work additional hours, the employee could say that's not reasonable or if the employee wished not to work additional hours based on the criteria the employee could disclose that it is unreasonable to ask me to do that because of these factors, objectively assessed.

PN319

MR BROMBERG: What the clause allows is for a request to be made - - -

PN320

THE COMMISSIONER: That has to be reasonable.

PN321

MR BROMBERG: No, the request has to be - - -

PN322

THE COMMISSIONER: I'm sorry, the hours must be reasonable, the request doesn't - yes, I follow.

PN323

MR BROMBERG: The request must be based on a need - the word "necessary" tells us that.

PN324

THE COMMISSIONER: Yes, and the hours sought must be reasonable.

PN325

MR BROMBERG: And I suppose I put it in the other way, the additional hours which are sought to be worked must not be unreasonable additional hours.

PN326

THE COMMISSIONER: There's a long history of what is reasonable overtime.

PN327

MR BROMBERG: I had better take you back to the clause, I'm just trying to find it.

PN328

THE COMMISSIONER: Yes.

PN329

MR BROMBERG: The first sentence tells us that a request can be made when it's necessary. The second sentence is dealing with when an employee may choose not to work additional hours and an employee may choose not to work additional hours in circumstances where the working of such hours would result in the employee working hours which are unreasonable after consideration of.

PN330

THE COMMISSIONER: Yes.

PN331

MR BROMBERG: Have a look at the way in which Mr Mueller has dealt with it, and I go back to PC16, and you will see in the last paragraph on the first page, he says,

PN332

The employee does not have to work the additional hours if that would result in an ATC working hours that are unreasonable on a consideration of the matters referred to in clause 4.3.1A to E. If on a consideration of those matters the working of additional hours is unreasonable,

PN333

As Mr Mueller putting Airservices position says,

PN334

It would be legitimate for the employee to refuse.

PN335

Now, Civil Air on 6 August has said precisely that, really. As is evident from the terms of clause 4.3.1,

PN336

In relation to any particular request an individual may choose not to work additional hours, where the working of such hours would result in that individual working hours which are unreasonable after consideration of the criteria specified in clause 4.3.1.

PN337

THE COMMISSIONER: Yes.

PN338

MR BROMBERG: The problem with that correspondence for Airservices, your Honour, is that there is no dispute about the meaning of the clause, so what does Airservices want to do now? It wants to put a different meaning. It wants to in it's submissions to you in opening introduce the protocol into the meaning of the clause. Never put to Civil Air - - -

PN339

THE COMMISSIONER: As I understood it, and please correct me if I'm wrong, I understand the protocol was called in aid to say that the application of the clause which was Airservices' view was put to your client and your client declined to adopt the protocol and that they say is evidence that in applying the clause you disagree what it means. That's as I apprehend it was put.

PN340

MR BROMBERG: Yes, I know, but Mr Mueller in his letter doesn't raise the protocol. It was not suggested outside of these proceedings - it has never been suggested to Civil Air that the protocol is relevant to the interpretation of clause 4.3.1. Now how can there be a dispute in relation to something that - to a point of view that has never been put to Civil Air, and something that is put in the Commission doesn't count, with respect, this might be your workplace, Commissioner - - -

PN341

THE COMMISSIONER: No, I understand the point that you make.

PN342

MR BROMBERG: Yes, this might be your workplace, it might be my workplace, but it's not the relevant workplace.

PN343

THE COMMISSIONER: Yes.

PN344

MR BROMBERG: The protocol as a matter relevant to the interpretation of the clause has never been put in any workplace relevantly and if I take you to the protocol - - -

PN345

THE COMMISSIONER: In any event on your first argument, whether Civil Air agreed to it or not, it's irrelevant.

PN346

MR BROMBERG: Yes, but I am putting this now on the basis you find against us, but obviously if our first argument is right we don't need to come here.

PN347

THE COMMISSIONER: Yes.

PN348

MR BROMBERG: But can I take you to the protocol and just identify properly what that is.

PN349

THE COMMISSIONER: All right.

PN350

MR BROMBERG: PC11. No reference to the protocol is in the application, Commissioner. It was first raised in opening. Now if you go to the protocol you will see that the document in its terms seeks an agreement that would be put in place for a particular period.

PN351

THE COMMISSIONER: For a particular purpose.

PN352

MR BROMBERG: For a particular purpose. So what was being asked of Civil Air was will you, during the course of the current negotiations for a new collective agreement, agree to this protocol? No one ever said to Civil Air, the matters in this protocol are relevant to the proper interpretation of clause 4.3.1 and therefore Civil Air could never have addressed that proposition and has not addressed that proposition, and there can be no dispute about it.

PN353

THE COMMISSIONER: Yes.

PN354

MR BROMBERG: Then if you come to our learned friend's submissions, you will see paragraph 29. Airservices' view is that the first sentence of clause 4.3.1 of the agreement which reads,

PN355

We expect that you will work a reasonable amount of additional hours if the requirement becomes necessary operates such that Airservices can require any ATC will work ...(reads)... is implicit in the words "if the requirement becomes necessary" the clause proscribes the requirement to work a reasonable amount of additional hours, otherwise those words would have no meaning.

PN356

That is not how Mr Mueller put it and that's only the half of it because the other part of a new interpretation you will see in paragraph 43.

PN357

The second issue in dispute between the parties concerns whether or not the choice conferred on ATC by the second sentence of clause 4.3.1 must be exercised objectively in circumstances where a consideration of the matters set out in clause 4.3.1 lead to the result proscribed by that clause, or may be exercised if an ATC forms a personal view that the matters set out in clause 4.3.1 means that working additional hours is inconvenient.

PN358

I haven't seen that in the material anywhere, Commissioner. That view wasn't put to Civil Air in anything and it certainly wasn't put by Mr Mueller in his letter. There we have what is said to be the third issue in dispute, and that's at paragraph 46, and that is the protocol issue and I have dealt with that. Then amazingly, and this is a document, Commissioner, we first saw at six o'clock last night, and I am grateful that my learned friends provided it, but that is when I first saw it. Civil Air hasn't even been put in a position where it could respond to it by reason of time. I don't know what my client would say about any of that and I don't put a view about it because I don't know. Civil Air has been appraised of this new interpretation put for the first time to us last night today.

PN359

Then amazingly you come to the determination and that seems to be based on yet another interpretation of what clause 4.3.1 means. What is suggested here is that the clause means that Airservices will properly implement clause 4.3.1 of the agreement where it requires an ATC to work a reasonable amount of additional hours where the requirement for the working of additional hours is necessary, which ATC then has an obligation to work such hours. Then further to 1),

PN360

The proper implementation of clause 4.3.1 allows an ATC to choose not to work such additional hours only where after a consideration of all those matters in A to E the working of those hours would be unreasonable to the ATC.

PN361

Clause 4.3.1,

PN362

Cannot be read as permitting an ATC to choose not to work those additional hours simply because the working of such hours is not convenient to them or because they do not want to work those hours. Then the order seeks to pick up the protocol.

PN363

So what you have got is a series of interpretations differing at each level coming from Airservices but the proposition being the proper interpretation of the clause has never been put in any workplace, that is Airservices' proposition about the interpretation. If you stretch "workplace" to mean all of the workplaces and therefore by correspondence to Civil Air, if you do that stretch, and we don't think you can, but even if you do that stretch then you get to the point where there's an exchange between Mr Mueller on behalf of Airservices and Mr Magoine on behalf of Civil Air, and I took you to it and there doesn't seem to be any substance to the suggestion that there is a difference of substance, and the rest of it is irrelevant because the rest of it has been put in the Commission not in any possible workplace that's relevant and no view about it has been put by Civil Air.

PN364

In circumstances where Civil Air was not asked in the workplace to address the view, there can't be a dispute between Airservices and Civil Air about the interpretations that are now seemingly being pursued in this place and for all of those reasons, even if we are wrong on our first argument, the Commission should come to the view that there is in fact no evidence of a dispute as to the interpretation of the clause between Airservices and Civil Air.

PN365

THE COMMISSIONER: It's two pronged. No difference in dispute as to the interpretation and no difference to it's application - no evidence as to a dispute as to it's application.

PN366

MR BROMBERG: That's right, so no evidence of a dispute arising in the workplace about a matter regulated by the agreement which requires an employee as a disputant, but many employees but requires at least one employee and which the matter must be, if the finger is being pointed at employee conduct, the matter must be the allegation that there has been a refusal by that employee to apply the clause. There is no evidence of that. The second point is that even if it was sufficient for our learned friends to point to a difference of views, there is no evidence of a difference of views. The evidence in relation to the exchange of views shows that the interpretation put by Mr Mueller and the interpretation put by Mr Magoine on behalf of their respective organisations has no substantive difference and therefore the - - -

PN367

THE COMMISSIONER: I don't say this in a pejorative or in an objectionable sense but both sides have relied upon the words "of the agreement".

PN368

MR BROMBERG: Yes. Well, up until that stage they did.

PN369

THE COMMISSIONER: Yes, I follow.

PN370

MR BROMBERG: Up until that stage they did. Airservices doesn't seem to rely upon that any longer but those - they can't rely on that, a dispute arising in the Commission is not the kind of dispute you are given jurisdiction to deal with. Just further to that, Mr Dowling helps me by saying you can't create the dispute in the Commission because that's putting the cart before the horse.

PN371

THE COMMISSIONER: Yes, exactly.

PN372

MR BROMBERG: You don't get to the Commission unless there is already a difference of a opinion, and if the difference of opinion is not there at the time you come to the Commission, you can't then create a difference of opinion in the Commission, that would be not only illogical to the working of the section but clearly in breach of what the dispute resolution clause requires. If the Commission pleases.

PN373

THE COMMISSIONER: Thank you Mr Bromberg. Mr Parry.

PN374

MR PARRY: If the Commission pleases, this notwithstanding much of what we have heard for the last 40 minutes is about whether there is jurisdiction for the Commission to then go on and deal with the matter, and deal with the matter listening to the evidence and weighing it up. We filed only on the jurisdictional issue an outline of submissions and we filed a large range of other material. Just to correct a couple of things. My learned friend started off saying yesterday they received 102 pages of material, it was the day before. So these are things that I just don't want left on the record.

PN375

MR BROMBERG: To be fair, Commissioner, 7.40 p.m. the day before.

PN376

MR PARRY: That wasn't yesterday. As to the suggestion that there is a further jurisdictional matter to be raised if this matter goes on, well it would be nice to have some notice of it and a bit more detail than just some throwaway line at this stage in the proceeding. There has been a number of objections, we note the Commission is not going to rule on those and I won't say anything further apart from the fact that we would say the material is admissible and the Commission can give it what weight it seeks at this particular stage in the proceedings.

PN377

There has been some interchange about what the union is doing here, and in some senses I am not absolutely sure myself. There is an agreement, it was an agreement made under section 170LJ of the Act, it's an agreement to which there are parties and those parties in clause 1.5 Airservices, the union and all employees bound by the agreement. These agreements don't operate where you name each and every employee, it is clearly a collective of employees and the normal position in our industrial system is that the union is taken as representing the position of the employees. If that proposition be necessary to be supported there is a decision of a Full Bench, Prior v. Cole Allied Operations which I will hand a copy up to the Commission.

PN378

The Commission will be familiar with, I think it's on page 305 of that, where there were debates in that particular proceeding about whether a union or whether employees had been served and their role, and the Full Bench said there, at about three quarters of the way down,

PN379

PTU is a registered organisation -

PN380

I'm paraphrasing,

PN381

It is there to further protect the interests of it's members. In proceedings before the Commission an organisation is normally regarded as representing it's members and their interests, and during the proceedings the union did not say or indicate that it was not representing it's employees.

PN382

In that proceeding, as was obviously the case, those particular orders don't seek orders naming individual employees. Normally in this Commission the union turns up and says I am here and it is stating that they are representing the employees, and I take it from nothing that Mr Bromberg said today that Civil Air is not here representing it's members. Further, and it is dealing with this sort of argument about when the word "you" appears in 4.3.1 - does the Commission have a copy of the certificate agreement?

PN383

THE COMMISSIONER: Yes, I do.

PN384

MR PARRY: The Commission will see, and it appears in 1.2(18),

PN385

You, your and employee means and refers to all employees bound by this agreement.

PN386

That, when you go to clause 4.3.1, makes fairly clear that 4.3.1 is setting up a mechanism, a circumstance in which employees can be required to work additional hours. That is the mechanism, the use of the word "you" and "we" can't have anything more read into it than that. Now, the clause in 4.3.1, which is the dispute settling clause, refers to a dispute arising in the workplace about matters regulated by this agreement. I will deal with the workplace again shortly, but the matter regulated by this agreement is the mechanisms and circumstances in 4.3.1 whereby employees can be required to work additional hours.

PN387

We say required and that's where we say there's a difference, but I won't dwell on that for the time being. The dispute can arise obviously concerning parties to the agreement, it can concern Airservices, it can concern employees and it can concern the union. We take it that the union are here today in their representative capacity as representing employees. Indeed if one goes through a certified agreement or a workplace agreement, it would be rare that there would be obligations placed on a union or it would be rare that there were specific roles allocated to them. The vast majority of workplace agreement contents deal with matters regulating the position of employers and employees.

PN388

When there is a dispute between that single employee, perhaps groups of employees, perhaps large groups of employees, the normal position of a normal mechanism is that that dispute goes through the Commission, the union turns up and represents the interests of the employees collectively or perhaps individually. We have set out, and it is important to set out in our outline of submission, firstly paragraph 7. These procedures are designed as Lacy SDP said,

PN389

To ensure that the agreement made between the parties is effective and enduring.

PN390

It is meant to maintain the settlement and that is settling a dispute isn't about regulating particular rights, but it's about making sure that where parties have disputes about the issue the Commission can settle those disputes and the purpose of that settlement is to make the agreement more enduring. The position in the Seven Network Full Bench - I'm sorry, the Big W - we set out in paragraph 9. You don't come to this from the sort of narrow approach, you come to it from an approach where - and as the Full Bench said, you don't narrowly construe what comprises a dispute and they set out the obvious reason for that. To do so, and I quote,

PN391

Would be contrary to the notion that certified agreements are intended to facilitate the harmonious working relationship of the parties during the operation of the agreement.

PN392

So this isn’t a dispute that concerns - a past dispute that concerns one employee, it's a dispute arising out of what we say the evidence discloses is a practice that has developed of employees not being available to work additional hours. We, being Airservices, can be in dispute with our employees at a general level with regard to such a matter. The Commission would say, well there needs to be some evidence of that and there is, and we have set that out in the material of Mr Lee and Mr Curran. We have attempted in our outline of submissions to summarise that and there are some rather important aspects. There has been correspondence between Airservices and particular employees within the site, and can we say at this stage about this proposition of workplace, this - and I am not sure absolutely what the argument is because it seems to be half a suggestion that unless this concerns within the confines of a tower then it is not within the workplace.

PN393

This is an industrial agreement that regulates a wide range of working conditions. It allows for people to be contacted at home, it covers travelling arrangements. It would be an absurd construction to think that things that are relevant to this agreement would require the workplace to be read as only if each and every aspect of the matter occurred within the confines of the tower or occurred within the confines of the office of Civil Air - I withdraw Civil Air, I mean Airservices. The practical reality is that there will be telephone calls made and letters sent from the workplace to employees and to the union concerning matters arising under the agreement. That would mean, in my submission, that those matters arise in the workplace. Any other construction would mean a most narrow and confined operation of 3.4.1 and it would indeed add a rather significant restriction on whether matters are regulated by the agreement or not. So we say such a narrow construction should be urged against.

PN394

Our material on which we base the argument that there is a dispute about the matter I have identified appears in paragraph 19 in particular. Around this time there was reductions in average additional hours or additional hours worked. We say there is a logical explanation for that in our outline of submission. However, we have got more than that just being a matter of logic. In paragraph 20 there was a discussion with a Mr Lee and he gives evidence about this, and we don't see in any sense how that sort of evidence can be said to not be admissible. It involves a discussion between Mr Lee, and Mr Lee is an experienced Airservices manager, he had been an air traffic controller for a long period of time, he has worked in management in Melbourne, Perth and Adelaide. This is a highly experienced manager of Airservices.

PN395

He, concerned about matters, has a meeting and he has a meeting with a Mr Lake who is the delegate, and Mr Stansfield who is the vice-president of Civil Air, and various ATC's. That evidence was,

PN396

I said that Sydney ATC's had previously worked additional hours and were expected to continue working additional hours from time to time.

PN397

In response the persons present at the meeting gave some reason for the reduction in the acceptance of additional duty, all those in attendance conveyed that working overtime was optional and they could not elect to do it. So we have prima facie evidence that this is a view held in the Sydney TCU by delegates, officers and ordinary members of Civil Air, being ATC's. There is no reason to suggest or infer at this stage that that is a view confined to simply that five or so group of people. The Commission also has evidence, further through the outline of submission we have detailed that, of a conversation that Mr Lee had with
Mr Hickey, and Mr Hickey was the delegate in the Sydney TCU, paragraph 34 and we would submit that it's fairly obvious from a fair reading of that that
Mr Hickey, when he says in response to Mr Lee saying ATC's were required to work additional hours when necessary, which is the position of Airservices, he said he had a private life, he might have had other things on, and if he had personal reasons for not coming in then they were valid.

PN398

Now that sort of material, Commissioner, is totally consistent with a view being taken that it's optional, that they don't have to come in and they can't be required. There is material there which would indicate that some employees and certainly the delegates take this as a position. We would say that that position is at odds with the way we say the clause should be applied. We say the clause should be applied in the way that employees off work can be required to come in when that work is necessary. We have set this out in our submission that that view or that position of refusal, we don't have direct evidence of employees saying I'm not going to come in for X, Y, Z reasons but that's not to prevent the Commission from looking at all the evidence and saying what is a normal, rational explanation for this in all the circumstances. A normal, rational explanation, the most probable inference is that ATC's take the view that it is optional to refuse hours if they want to.

PN399

We have set out in paragraph 32 of our outline upon which we say that is a fairly obvious inference. Now that means that we are in a position where there is a matter, as we would say, whereby there are mechanisms and circumstances in the agreement where we can require employees to work additional hours. Certain employees in Sydney, in Canberra and Brisbane have refused and we would say on the material that we have that it is a reasonable inference, and a proper inference, that the reason they are doing that is because they consider they have an option. We say that it is not only necessary that it be inferential because we have what we say is the direct evidence of the statements and the positions of ATC's and union officials.

PN400

My learned friend has commenced and I think the Commission summarised it by saying that there is not evidence of a dispute over a matter. Can we say we would say at this stage it's crystal clear that there is an easily identified matter, there is, we would say on the evidence of what we have been told and observed, that there is a dispute about that matter. Therefore we say the dispute settling clause in the award obviously applies and when we are contacting people from our offices and contacting and requesting they come in, that would appear in the workplace. When people are in our workplace and telling us that they have an option, that is within the workplace. So we say the argument about workplace has no substance.

PN401

Then that leads to the argument about is there any dispute because we are asking about how the agreement should be applied. We would say that it's crystal clear again that when the Commission comes to deal with a dispute it has the power to make determinations, formation of views and I am here referring to a Full Bench decision of CFME v. Geelong Grammar School (2002) 123 IR 216 at 221, and it was a Full Bench upon which you sat, Commissioner, with others, and it there dealt with a quote which I will - - -

PN402

THE COMMISSIONER: It was a transmission of business matter wasn't it?

PN403

MR PARRY: It was a transmission of business matter but the Full Bench - there was an aspect of using LW, as is occasionally the case, to deal with transmission of business matters. There was arguments about whether the decision was an attempt to ascertain, declare or enforce existing rights, and there is a quote there about - and I say,

PN404

There is no substance in the suggestion that an industrial tribunal cannot interpret laws, awards or other legal instruments, a tribunal could not discharge it's ...(reads)... on matters of interpretation in arbitral tribunals that does not itself amount to an usurpation of judicial power.

PN405

I go on,

PN406

Importantly indeed a tribunal may find it necessary to form an opinion as to the existing legal rights of the parties as a step in arriving at the ultimate conclusion on which the making of an award intended to regulate the future rights of the parties.

PN407

THE COMMISSIONER: I think Mr Bromberg conceded the point.

PN408

MR PARRY: Well we say here we seek certain relief in respect of this dispute. The relief that we actually sought is unremarkable in an LW matter, indeed the wording I think is largely based on a decision of the Commission as constituted, and this is the way that we would seek the matter proceed. That there be clearly arguments about how the provisions should be applied. We do take issue with the argument that somehow the argument has just been raised in the Commission or comes as any surprise to Civil Air or the employees.

PN409

The Commission will have seen in the material a number of meetings held on site between Airservices representatives and employees. The Commission will have seen much correspondence with the union, indeed we would content that there is no issue that we have been appropriate and correct in corresponding with the union as the representative of employees. It is also, we would submit, incorrect to suggest that we haven't put our views on the way the clause should be applied. There are letters in the material from Mr Mueller and from others setting out our position. And with respect there is a difference in our position, and certainly the position between Airservices and the employees that we have spoken to, and I have taken the Commission to those elements of evidence, there is certainly a difference there.

PN410

As to the position of Civil Air, well they are the representative of the employees. It seems they have been with respect very coy and careful about their actual position. They seem to take the position in the material that by simply repeating the words the 4.3.1, that is sufficient for putting them in a different form. Well, if that was simply the case then it would be rare that there would be a dispute over the application of an agreement. With regard to the position of Civil Air, we have taken the Commission to the fact that it is practically on the ground the view of delegates and the views of the Vice President that there is a position that it is the option of ATC. So practically on the ground, leave aside the correspondence from Civil Air, practically on the ground there is a difference.

PN411

We say we can require - and my learned friend has been very careful to accept that, indeed the correspondence in other parts refers to phrases like "use our best endeavours" or "employees should do something" and the union have been most careful not to accept that we at Airservices can require employees in any particular circumstance to come in unless each of those other factors are dealt with. So in a practical sense we say the union are party to this, we say they are party at two levels. We say they are party because they represent employees and we accept they represent the employees. Secondly, we say that on a careful analysis in any event there is a difference between us and it is a practical difference.

PN412

Perhaps I will just deal with the protocol matter. The protocol was a document, and this appears in the statement of Mr Curran, he goes into a fair bit of detail about the protocol. It was presented to Civil Air. Now clearly it wasn't presented to Civil Air because it's a registered union, it was presented to them because it was a registered union who represents the employees subject to the agreement. It is a protocol that clearly is addressed and designed to fit in with section 4.3.1. And that there was a meeting involving a Civil Air officer and an officer of Airservices and there was telephone conversations and the long and the short of it is it was rejected and Civil Air said it was draconian and couldn’t do it. Now in any view that would, in our submission, suggest a difference of opinion as to 4.3.1E. It would suggest a difference of opinion which is practical in that it arises directly from the issues and disputes that we say are in existence.

PN413

If the Commissioner pleases, we have handed up these submissions, I don't propose repeating them to the Commission but for all those reasons we say there is jurisdiction and we would want the merit of this matter heard as expeditiously as possible. If the Commissioner pleases.

PN414

THE COMMISSIONER: Thank you Mr Parry. Yes, Mr Bromberg.

PN415

MR BROMBERG: Commissioner, I've forgotten when you said you had to adjourn.

PN416

THE COMMISSIONER: 12.30.

PN417

MR BROMBERG: 12.30, well let me try and finish if I can.

PN418

THE COMMISSIONER: Thank you.

PN419

MR BROMBERG: My friend went to Prior v. Cole Allied Operations, that's a case about whether service effected upon the union could be held to be sufficient service upon it's members and in that context the Commission said that the union was representing it's members. So it's a case dealing with a completely different context, but in any event Commissioner you will notice that what my friend did was extend members to employees so as to say the union represents all of its employees, all of the employees, the ATC's. He didn't then go on to confine it to members - - -

PN420

THE COMMISSIONER: Or those eligible.

PN421

MR BROMBERG: Or those eligible and what he didn't identify and what the application doesn't identify is if the union is here representing it's members, which members are they? Is it all 900 ATC's who are misapplying clause 4.3.1? Is it 800? Is it 500? Is it 50? Is it all of the employees at Sydney? All of the employees at Canberra? Who is it, whether they be members or non-members, that Civil Air is said to be representing? Surely that's got to be the starting point and that has to be the starting point - - -

PN422

THE COMMISSIONER: I have heard that resisted a lot of times by unions on the basis that they represent the interests of their members and the identification of members is unnecessary.

PN423

MR BROMBERG: But it depends on the context, your Honour.

PN424

THE COMMISSIONER: Indeed.

PN425

MR BROMBERG: It depends on the context, it depends on what the union is there doing. If the union on behalf of - let me put it this way, your Honour, if an employer has a policy of refusing to pay a certain amount for overtime, and this is a bit like - sorry, it's not like the Swire case that I will come to but the Swire case was about redundancy, and that was a case where the employer dismissed employees by reason of redundancy and it followed a particular approach and the union said we are here representing the interests of all employees because your application of that redundancy cluse is something that has the capacity to affect all employees and therefore all employees have an interest in it.

PN426

In that situation where the union comes along and says, you have got a particular approach to a clause that has the capacity to affect our members, the union is entitled to stand there and represent the members. But that is not this case. This is a case about a particular clause, a clause, despite my learned friend's efforts by reference to the definition, is directed to a request made to a particular individual. My friend went to the definition of "you" in the agreement and he says "you" means "all". I'm sure that what he is not suggesting the Commission should do is interpret the word "you" to mean all employees in the context of clause 4.3.1. Otherwise, the second paragraph,

PN427

You may choose not to work additional hours.

PN428

Is converted from what it obviously intends and that is the choice of the person requested to all of the employees choosing whether a particular employee works additional hours. So obviously that's not right and the clause is directed to a request made to a particular person about a particular circumstance, and in that context there may arise a matter in the workplace of the kind that the dispute resolution clause deals with.

PN429

Now, which employees is the employer complaining about that the union can be here said to be representing. We don't know that. It's obviously not all 900. It's obviously not all members. How in representing the conduct of those employees can the union be here defending it when the union doesn't even know who they are. Who do we get instructions from in trying to represent those employees when the employer doesn't identify that it has a grievance in relation to any one of them? If that is what is meant - and that is just not what is meant in Prior and Cole Allied when it dealt with the issue of service and the fact that the union could be regarded as the post box for it's members.

PN430

My friend said the usual case is the union is there in the representative capacity representing employees. Well that is often the case, but it is there representing particular employees who have been said to have done particular things and that's what's missing here. Now, my friend also went to paragraph 9 of the applicant's submission and that paragraph says it is important the dispute not be narrowly construed, and we have got no quibble with that statement as it fell from the Full Bench in the SDA v. Big W Department Stores case, but your Honour needs to read it in context. What the Full Bench was talking about there was that one does not take a narrow view of the connection between the matter in dispute and the agreement. In other words, when you consider whether the dispute relates to the application of the agreement you don't take a narrow view of the connection. Your Honour, will know that - - -

PN431

THE COMMISSIONER: Health and safety it was about.

PN432

MR BROMBERG: Yes, and the Commission has said in many cases that there needs to be a sufficient connection between the matter in dispute and the agreement. You don't take a narrow view of that connection and we agree with that. The problem with this case - and we heard our friend - the problem with this case is Airservices has not identified the matter. What is the matter? The matter can't be, in our respectful submission, a difference of opinion about the agreement. What is the matter? And as we said to you earlier the only matter in relation to employee conduct that can constitute a matter in relation to which the dispute resolution clause can have application to 4.3.1 is a refusal. It is that particular refusal that can come here and be resolved by the Commission, but we don't have any particular refusal and we don't have a matter.

PN433

My friend said "workplace", the word "workplace" should not be narrowly construed. We are not saying that workplace is necessarily confined to the tower or to the office, but the dispute has to arise in a workplace. A workplace is not a letter that goes from Airservices to Civil Air, that is not a dispute arising in a workplace, that doesn't give rise to a dispute arising in a workplace. It might be that the workplace extends to the path from home to work or the path from one workplace to another. We are not arguing for a limited definition of "workplace", but what we say is that the exchange of letters from employer to union does not of itself give rise to a dispute arising in the workplace. It can't create it. It can deal with it but it can't create a dispute arising in a workplace.

PN434

Then my friend went to paragraph 20 of Mr Lee. Can I take the Commissioner to that paragraph. First o fall might I say about the comment that my friend focuses on and it is in the sentence,

PN435

All those in attendance conveyed that working overtime was optional and they could elect not to do it.

PN436

I'm not sure what the word "conveyed" means. The deponent doesn't say they said it. Did they do that by - - -

PN437

THE COMMISSIONER: You're not going to introduce the vibe, I trust.

PN438

MR BROMBERG: Well I don't know, I don't know what's meant by the word "conveyed". Obviously if they had said it the witness would have said that. Perhaps it might have been conveyed by their silence. Perhaps it might have been conveyed by their shrugging of shoulders. I mean it's so ambiguously put that it does not bear much further consideration, but let me say this about it. What is said to have been conveyed was that employees could elect not to do the additional work. Well that is in fact what the clause says, if the circumstances that the clause requires, are there. No doubt if those persons said that they could elect they were referring to 4.3.1 and the words "you may choose not to work additional hours", but to say that they were doing that without reference to the rest of the clause is to ascribe to them an absurdity, and you wouldn't infer that that is what they meant.

PN439

Then if you go to RFL3 to the statement of Mr Lee you will see that there were a series of emails and I want to go to the second page of the emails and the bottom half of that page. There is an email from Sean Lake, who is one of the attendees of the meeting referred to in paragraph 20, and the email is directed to Rod Lee, the maker of the statement. You will see, Commissioner, that in the third paragraph this is said,

PN440

I do say that the reason that there could be no commitment to staff improving their acceptance of AD was that the people at the meeting were all speaking from a personal viewpoint and couldn’t comment or make commitments for other people not in attendance.

PN441

They certainly weren't speaking for the union or anybody else. It is not the evidence that these three individuals were asked to do additional hours and rejected that request on the basis that they considered working overtime was optional. If that had been the case and they had been brought here as disputants, there may well be jurisdiction for the Commission to deal with that. But all you have here is three people giving their own personal view in the absence of any matter arising in the workplace that could give rise to a dispute about their application or non-application of clause 4.3.1.

PN442

Reviews of these individuals are no different to the views of Civil Air or my views or anybody else's views, they just don't matter in the context of what is required to found jurisdiction under the dispute resolution clause. Then my friend went to paragraph 34 of Mr Lee's statement and he referred to the third line where it said,

PN443

Mr Hickey said to me that he had a private life, he might have other things on and if he had personal reasons for not coming in then they would be valid and they were valid.

PN444

It is clear beyond doubt that the clause allows consideration of personal matters. Mr Muir tells us that in his letter. I just don't know why that is said to be somehow different to either the proper interpretation of the clause or what has come from Airservices. In any event, it is a view, so what? My friend at no point sought to explain all of the different machinations in the differing interpretations that are offered by Airservices out of this place and in this place, he just said about relief, the relief that is asked, it's unremarkable, it is based on something Commissioner you have ordered in other proceedings. No doubt, Commissioner, you did that in a matter in which you had jurisdiction.

PN445

THE COMMISSIONER: No doubt. It may have been the formulation is one I use regularly, I don't issue orders.

PN446

MR BROMBERG: I understand, but my point is, Commissioner, that you do that having satisfied yourself of the jurisdiction.

PN447

THE COMMISSIONER: Yes.

PN448

MR BROMBERG: I don't think we were saying that the new interpretations come as a surprise. What we were saying was the new interpretations, coming as they did last night or yesterday, are not interpretations that Civil Air has ever been asked to address, and certainly never been asked to address outside of these proceedings. My friend said that there are differences between Airservices and the employees they have spoken to. Which are they and if they are in dispute with those employees where are they? A necessary aspect of the dispute resolution clause is the involvement of an employee as a disputant and I don't repeat our submission about that, but our friend, with respect, simply didn't deal with our submission on the proper interpretation of clause 3.2, the dispute resolution clause.

PN449

My friend said that the rejection of the protocol amounts to a rejection that the protocol is part of the proper interpretation of clause 4.3.1. Of course the protocol was rejected. What legal operation was it meant to have? What was it meant to do? Override the certified agreement? What was Civil Air supposed to be agreeing to, how could a protocol which bears almost no resemblance to the clause which applies, how could that have any legal and/or practical effect? Of course it was rejected, but it wasn't rejected because it was put to Civil Air that the matters in the protocol are proper to be taken into consideration under clause 4.3.1 sub-clause E of the agreement. It was rejected because it was regarded as a completely inappropriate agreement designed to substitute, not interpret,
clause 4.3.1.

PN450

It was no more than an attempt to get a new clause, Commissioner, and as the Commissioner knows, the place in which to get that might be at the bargaining table and the bargaining table, as I understand it, has been opened for some time and rather than dealing with these matters through the bargaining table it seems to be the position of Airservices that some jurisdiction ought to be manufactured in this place, in order to give the Commission a role where neither the agreement nor the Act does.

PN451

Lastly, just a couple of things in the outline of my learned friend's. At 19 there is an assertion that the logical explanation of a refusal is that the ATC's take a view about the working of additional hours and a view about the clause. Are Airservices really saying that that is what happened in relation to every employee that refused? Can you draw an inference in relation to every employee? Might it not have been the case that an employee's child might have been sick at home? Might it not have been the case that the employee, when called to return to work, had just come from a drinking session down the pub? Might it not have been the case that when the employee had their phone off and was not contactable, which also seems to be a bassi for the so-called practice, might it not have been the case that there were some legitimate reasons for the phone being turned off? Might it not have been the case that the employee, when called, was not him or herself not feeling well?

PN452

How could you possibly draw an inference in relation to any of the employees that all were acting in accordance with some practice and of course you can't do that and that just serves to emphasise that unless and until a particular refusal is brought before the Commission and a particular misapplication of the clause is alleged, the Commission can have no jurisdiction in seeking to resolve matters of this kind. At paragraph 21 there is a suggestion ascribing to Civil Air a position by reason of some anonymous document. Obviously, Commissioner, when you look at that you will reject the suggestion. It bears no relationship with Civil Air whatsoever, and there is no evidence that it does.

PN453

Then can I say a couple of things about TWU v. Swire. First of all at
paragraph 40 reference is made to the decision on appeal in that case. The jurisdictional argument that Commissioner Lewin dealt with was not pursued on appeal and paragraph 40, Commissioner, you should look at very carefully. It doesn't bear up to scrutiny. Paragraph 5 of the Full Bench decision is not even referred to, and at paragraph 5 you will see that what is said expressly is that Swire Cold Storage did not pursue the jurisdictional challenge on appeal.

PN454

When you look at the facts of that case as identified by Commissioner Lewin, you will see that there was a redundancy clause, an application of that redundancy clause by the employer to, I think it was three identifiable employees. A dispute brought by the union on behalf of employees claiming that that application in relation to those three employees was a misapplication of the clause and therefore in that case there was a matter in relation to which the Commission was called upon to interpret the agreement, and interpreting the agreement the Commissioner does, but he does so in circumstances where the jurisdiction that he finds is founded upon a particular concrete matter, and in relation to an allegation that in relation to that matter the employer has misapplied the agreement.

PN455

That is all we want to say in reply, Commissioner. Commissioner, we may need to deal with the dates that were listed for a hearing, should a hearing be necessary. Can I just confirm, Commissioner, the dates that I think the Commissioner announced on the last occasion were the 27th and 28th, is that right?

PN456

THE COMMISSIONER: Yes, I think so.

PN457

MR BROMBERG: I thought the award modernisation bench was sitting on those days.

PN458

THE COMMISSIONER: No, I think they're sitting the last three days of that week.

PN459

MR BROMBERG: Right. Thank you for that clarification. I need to check whether I've made a mistake about my availability.

PN460

THE COMMISSIONER: That's all right.

PN461

MR BROMBERG: Perhaps if I can check that and communicate with your Associate should there be a difficulty.

PN462

THE COMMISSIONER: What I propose to do is this, Mr Bromberg. I propose to adjourn until three o'clock at which stage I hope to announce a decision.

PN463

MR BROMBERG: If the Commission pleases.

PN464

THE COMMISSIONER: The matter is adjourned until that time.

<SHORT ADJOURNMENT [12.33PM]
<RESUMED [3.05PM]

PN465

THE COMMISSIONER: This morning the Civil Air Operations Officers Association of Australia raised jurisdictional objections to an application by Airservices Australia for a dispute settlement procedure to be conducted under the Airservices Australia Certified Agreement 2005-2008 Air Traffic Controllers supporting Air Traffic Services. I do not propose to recite the various arguments in the interests of dealing with this matter expeditiously, rather I shall simply announce my decision.

PN466

In this matter there is no dispute that the Commission may take a view as to the meaning of an agreement in a step towards determining it's proper application. There appears to be no dispute that in accordance with clause 4.3.1 of the agreement Airservices may require, if it becomes necessary, the working of a reasonable amount of additional hours. Civil Air agrees with this proposition. There appears to be no dispute that Airservices accepts that an air traffic controller may choose not to work additional hours where it would be unreasonable after consideration of any risk to your health and safety, your personal circumstances including family responsibilities, the needs of the workplace, the notice given by us and by you of your intention to choose not to work the additional hours and any other relevant matter. Civil Air appears to agree with this proposition.

PN467

It appears to me that the dispute is about the reasonableness or otherwise of a refusal to work additional hours in circumstances where Airservices has indicated that such additional hours are required and necessary. It is not in issue that ATC's do have an option not to work additional hours, in circumstances where she or he has considered A to E in clause 4.3.1 and the refusal is not unreasonable. There is evidence to be led from Mr Curran and Mr Lee of requests for additional hours being refused where there appears to be no basis for assessing whether or not such refusal is reasonable or unreasonable, having regard to the criteria set out in
clause 4.3.1.

PN468

Such refusal may or may not be soundly based in the terms of the agreement. Properly characterised, the dispute sought to be resolved by Airservices is whether or not any decision to refuse a requirement to work a reasonable amount of additional hours is based upon the criteria set out in clause 4.3.1 A to E and is not unreasonable. Given the material currently before the Commission, the question does arise if a simple refusal to work a reasonable amount of additional hours constitutes sufficient grounds for believing that the decision not to work those hours is based upon them being unreasonable or is something else needed. In other words what duties or obligations might arise between the employer and the employees from the matters to be considered in paragraphs A to E and the qualifying word "unreasonable". Matters raised by Airservices go very much to the proper application of the agreement and about which in practice has led to tension about it's proper application. I find there is jurisdiction.

PN469

I will make the transcript available as quickly as I can Monday morning so that the parties can view that, and we will simply now plan for the 27th and 28th.

PN470

COUNSEL: If the Commission pleases.

PN471

THE COMMISSIONER: Does anything else need to be said? Thank you, the matter is now adjourned until that time.

<ADJOURNED UNTIL MONDAY 27 OCTOBER 2008 [3.09PM]