AG2012/373, Transcript of Proceedings [2012] FWATrans 207 (5 March 2012)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 1032894-1

COMMISSIONER RYAN

AG2012/373

s.185 - Application for approval of a greenfields agreement

Application by The Australian Workers' Union
(AG2012/373)





Melbourne

2.13PM, FRIDAY, 24 FEBRUARY 2012

PN1

THE COMMISSIONER: Could I take the appearances, please.

PN2

MR A. HERBERT: Yes, Commissioner. If it please the commission, my name is Herbert, initial A. I seek leave to appear as counsel on behalf of the Australian Workers Union.

PN3

THE COMMISSIONER: Thank you.

PN4

MR W. RANDLA: If the commission pleases, I'm Wojtek Randla, appearing on behalf of Elite Crane Services.

PN5

THE COMMISSIONER: Thank you.

PN6

MR M. HARDING: If the commission pleases, my name is Harding, M. I seek permission to appear on behalf of the CFMEU as intervener and to address you - - -

PN7

THE COMMISSIONER: Thank you. Permission is granted wherever it's needed. I note that the CFMEU have got some issues to raise. I don't know what they are, but I'll hear from them in a minute. I also have a number of content issues which I will raise in relation to this agreement. These are matters which will need to be dealt with. Clause 10.1, the disputes resolution procedure. It doesn't specifically mention NES disputes. It talks in terms of disputes over any work-related or industrial matter. Whilst it might be possible to read that as including an NES dispute, given the language in the legislation that a dispute resolution procedure in an enterprise agreement has to be able to deal with an NES dispute, my concern is that the language is not as clear as it could be to make it clear that NES disputes were covered. My view of the matter would be that a simple undertaking that says those introductory words in 10.1 are intended to include NES disputes, would satisfy my concerns.

PN8

In clause 10.2, paragraph (f), this describes the end stage of the dispute resolution procedure. It has unresolved matters being referred to Fair Work Australia, but it talks in terms of "conciliation and/or arbitration powers in such review". I'm not certain whether that is intended to be a limitation on the exercise of the powers of the tribunal. The concept of a review is very different from the ability to simply exercise conciliation and arbitration powers to resolve a dispute. My concern there is that by couching the language in the terms of a review rather than at large in terms of conciliation and arbitration, it appears to have issues of limitation. It might be simple for again an undertaking just to make clear that the intention is not to limit it by the concept of a review, but at large to resolve whatever is the matter in dispute.

PN9

I also draw attention to clause 35. Clause 35 identifies public holidays. The difficulty with that clause is that the public holidays that are identified in clause 35 is not the sum total of the public holidays which are available under the NES. The NES has a specific number of name days, but then provides that any day declared or prescribed by or under a law of the state as an additional public holiday, is an additional public holiday. It's possible to read clause 35 as being an attempt to oust the operation of the NES in relation to that matter. If it's not the intention to affect the NES entitlements, again I'd accept an undertaking that clause 35 is to be read subject to the fact that if any additional days are declared or prescribed by or under a law of the state, then they are additional days for the purposes of this agreement.

PN10

Clause 38 and also clause 40. I note that the introductory words in clause 38 and clause 40 are very different from the introductory words in clauses 37 and 39. 37 and 39, which deal respectively with personal leave and compassionate leave, make clear that the clause is intended to summarise the NES, whereas clause 38 and clause 40 make clear that the clause is intended to summarise the award entitlement. Given that the award entitlement - and the award is a 2002 award - in relation to parental leave and jury service may be different from the rights that apply under the NES, I would at least require in relation to clause 38 that if the intention was not to depart from the NES - and this is loose language - you may be able to satisfy my concerns by giving an undertaking that clause 38 is to be read on the basis that it is a summary of the NES entitlements.

PN11

In relation to clause 40, I'm not certain what you're intending to do in relation to jury service; whether you're trying to pick up the terms of the 2002 award, whether you're trying to pick up any other entitlements that may exist in relation to jury service leave. You can address me on how you want to clarify the operation of that so that I can be satisfied that employees are better off overall under the terms of this agreement than if they were employed under the terms of the award.

PN12

Clause 50. Clause 50 is a no extra claims clause. I've raised this issue in relation to a number of agreements, both with agreements made by the AWU but also agreements made by other unions. The concept of defining the agreement as dealing comprehensively with all matters which pertain to the employment relationship between the company and the employees, it appears to me that it creates the effect that it excludes the operation of the contract of employment. To the extent in particular that the contract of employment contains with it implied terms, especially those which are the implied duties on the employer in favour of an employee, that the language of clause 50 would end up having a detrimental effect on the employees by excluding those implied duties that are applied into a common law contract of employment in favour of an employee, because those implied duties are not specifically dealt with by any of the terms of the agreement.

PN13

In other similar matters including, Mr Herbert, the matter that you're involved in this morning, the employers gave undertakings that made clear that to the extent that it's a comprehensive agreement, it's comprehensive only in relation to instruments such as awards and other agreements, but it has no impact upon the operation of the common law contracts of employment. They're the issues that I have. Mr Harding, I take it your appearance is not to support the application. Is it to oppose the application?

PN14

MR HARDING: Correct. It is, Commissioner.

PN15

THE COMMISSIONER: On what grounds?

PN16

MR HARDING: On several grounds. I think it's probably convenient if I start by saying that earlier today we put the other parties on notice that we sought to cross-examine Mr Gatto, who is a deponent to a statutory declaration that has been filed in support of the application. I understand that Mr Gatto is not available until Wednesday. On that basis we'd seek to adjourn this application until such time as he is available.

PN17

The basis upon which we say that is appropriate, Commissioner, is that in his statutory declaration, Mr Gatto amongst other things deposes by a simple "yes" that the employee organisations to be covered by the proposed agreement - this is at 2.5 - taken as a group, that they're entitled to represent the industrial interests of the majority of the employees who will be covered by the agreement and further deposes that the kind of work - this is at 1.4 - that will be done under the agreement is rail construction. Now, that's how it's set out.

PN18

The agreement itself - and, Commissioner, you'll be aware of what the requirements of the Act are in relation to a greenfields agreement of which this purports to be. The first requirement is that in section 172(2)(b)(i), "The agreement relates to a genuine new enterprise that the employer or employers are establishing or propose to establish." Commissioner, there is nothing in the agreement that says what this new enterprise is and what it would do. Significantly, Commissioner, what the agreement does say at paragraph 4 is that it would apply in the state of Victoria to employees engaged on the Victorian Regional Rail Project as defined by the award, which is then defined by paragraph 8 as being the Mobile Crane Hiring Award 2002.

PN19

Then there is a schedule to the agreement, and it's appendix (d). You'll see from appendix (d) - which is at page 56, Commissioner - that the definitions clause of the 2002 award are incorporated into the agreement. The definitions clause simply says at 5.5 that the mobile crane hiring industry is "a service industry involving the hiring of mobile cranes, mobile elevated work platforms and like equipment" and goes on then to describe further what the industry involves. We have a very unclear and vague description of what it is this agreement would do and who it would cover. There's no reference to what this new business or enterprise would be and, in my submission, that is significant.

PN20

There's a decision of Kaufman SDP, which I'll hand up to you, Commissioner. His Honour there deals with a greenfields agreement and it was of some concern to him that the agreement that was sought to be approved did not have any indication as to what the new enterprise Excelsior was establishing or proposing to establish contained therein. He says that at paragraph 7. He then asked for some information about that and the information came back that Excelsior was contemplating doing something, and that this agreement would enable it to do it if and when it ever put that into effect. On that basis, his Honour declined to approve the agreement.

PN21

Why is that significant to our request for an adjournment and to cross-examine Mr Gatto? It's because in light of his statutory declaration, it purports to say it's covering the rail industry or its work in the rail industry. It purports to say that the organisation, the AWU, is entitled to cover the industrial interests, but nowhere does it say anything about what it is this new enterprise will be. It's appropriate, in my submission, Commissioner, that before you approve this document on the basis of what has been put to you by way of evidence, that you hear from Mr Gatto about those matters. It's on that basis that we have sought to cross-examine him, in order that we might ask him questions concerning how this might satisfy the requirements of the Act.

PN22

Significantly, Commissioner, the full bench has held in AWU v Killarnee Civil and Concrete Contractors Pty Ltd - and this is a decision of the full bench comprising Watson VP, Harrison DP and Cloghan C on 4 August 2011; (2011) FWAFB 4349 - that whilst it's true that the commission, that is Fair Work, is entitled to rely on the statements made in the declarations, what we're doing by way of this application is to put Fair Work on notice and the parties on notice that there are matters that are relevant and germane to the consideration that you have to give under the Act that may bear on whether or not this is genuinely a greenfields agreement. On that basis you ought not simply accept the statutory declarations in their current form.

PN23

Now, that's not to say that there's any wrongdoing on the part of Mr Gatto. It may simply be that he has misapprehended one aspect or another. The question of coverage is a complex one; a mixed question of fact and law. These are matters that are not always appreciated by lay people; however, they go significantly to the requirements of the Act. In those circumstances really, Commissioner, it is appropriate that you stand the matter over until such time as Mr Gatto becomes available. There may be also some further evidence the CFMEU wish to call to explain how the industry operates.

PN24

THE COMMISSIONER: Is your challenge or your objection, twofold: one, whether or not it's a genuine new enterprise and, secondly, whether or not the AWU has the capacity to represent the majority of the employees?

PN25

MR HARDING: At present, exactly, that is so. However, the second criteria for our greenfields agreement is that there are not any employees presently employed and on my instructions we find that hard to understand because - and that may be explained by what it is Mr Gatto says about what this new enterprise is, but if all that Elite Cranes is doing is to carry on its current business - in other words, as I understand it, it contracts it cranes out to various firms to do various things and that could be a firm that is on a wharf, it could be a firm that's in the construction industry, it could be a factory that provides lifting services via cranes.

PN26

Now, if it's just business as usual in the sense that all it's doing is simply wishing to provide its services to one of the tenderers of the Victorian Rail Project, then it is difficult to see at first blush how there are not employees already employed to provide those services; but they're matters that we'd like to ask Mr Gatto. At present all I say about that is that the answer to his questions may invite consideration of both elements of the greenfields test.

PN27

True it is that in any event, it's my submission that the AWU doesn't have the rules that cover - to represent the industrial interests of these employees. That's our application in respect of an adjournment and we press that on the basis I've identified. In the event that you're against us on that question, Commissioner, then I can address you in relation to our challenge to the agreement per se and what we have, but at present that's what we seek by way of a remedy at this point.

PN28

THE COMMISSIONER: When you say your challenge to the agreement, do you have other issues you wish to raise?

PN29

MR HARDING: Well, Commissioner, we would then have to take you into some detail about why it is we say that the AWU doesn't have the rules to cover - - -

PN30

THE COMMISSIONER: You're not going to content. You're still touching on the matters which are either 187(5)(b) - - -

PN31

MR HARDING: Yes.

PN32

THE COMMISSIONER: - - - or the genuine enterprise concept, which is are there existing employees who - I better use the language of - - -

PN33

MR HARDING: "Have not employed any of the persons who will be necessary for the normal conduct of that enterprise."

PN34

THE COMMISSIONER: Yes.

PN35

MR HARDING: So we've got two aspects, haven't we? We've got (a) that there's "a genuine new enterprise" and that's (i), and that is being established or proposing to be established, and (ii) that "the employer or employers have not employed" - there's a negative stipulation - "any of the employees who will be necessary for the normal conduct of that enterprise." So we need an answer, I guess, to both those propositions in light of evidence that might be available to you through Mr Gatto and any other witness that the CFMEU wishes to call. That's the first thing. Then of course as you correctly identify, Commissioner, in order for you to approve a greenfields agreement, section 187(5)(a) requires that "the relevant employee organisations", in this case the AWU, "that will be covered by the" - sorry, (b) - no, it's (a), "entitled to represent the industrial interests." That's a matter of law as well as fact, but I can deal with that if indeed you're against us on the adjournment.

PN36

Finally, Commissioner, there's another matter which is just in terms of, in its present form, whether you are empowered to approve the agreement. You've raised a number of content matters with my learned friends. A further content matter that bears on approval is in clause 50. Commissioner, you've identified the potential impact on the contract of employment, but can I also point out that the no extra claims clause in the second paragraph purports to prohibit for the life "any campaigns of direct industrial action intended" - by the parties, and the employees, Commissioner, are parties to this agreement - "to secure new and improved rates and conditions during the term of this agreement or at the end of this agreement." Now, in my submission that is inconsistent with part 3-3 of the Act and, accordingly, it's not a permitted matter. You can't approve on that basis.

PN37

Commissioner, bearing in mind that the whole point of a greenfields agreement is it's going to be in operation for four years - I think the nominal expiry date is specified as 28 February 2016, which we're only a few days shy of - that's going to lock out the employees. Assuming they haven't been employed yet, they won't be able to bargain for new terms and conditions for four years on this agreement. Now, in my submission that's sounding democratic but, I mean, obviously the Act permits that to occur; but in my submission you ought to scrutinise these matters carefully. It's not to say that you don't - - -

PN38

THE COMMISSIONER: Obviously on this occasion I didn't do it carefully enough, because I certainly didn't pick that up. I picked up an issue in clause 50, but I didn't pick up the issue you've raised, Mr Harding. I certainly adopt the position you have just put as a concern, in that whilst you can prevent any form of industrial action to be taken during the period of the nominal expiry date of the agreement, even if the agreement continues after its nominal expiry date, from the nominal expiry date onwards employees are entitled to bargain and therefore they're entitled to make those applications to protect the industrial action that would flow from that. So, a clause that talks about "during the term of the agreement" or "at the end of the agreement" that may be read as preventing employees exercising a statutory right, would be not permissible.

PN39

I'd adopt the concerns, but my view is the concerns can be addressed by an undertaking that resolves the matter; that clause 50 is to be read and applied on the basis that employees are able to exercise rights to take protected industrial action in accordance with the Fair Work Act for the purposes of future agreements. Something along those lines.

PN40

MR HARDING: Yes.

PN41

THE COMMISSIONER: Because it simply means that those rights can't be triggered until the Act says they can be triggered.

PN42

MR HARDING: Yes.

PN43

THE COMMISSIONER: Which means you can't do it during the life of the - - -

PN44

MR HERBERT: With respect, Commissioner, my learned friend has actually misread the clause. It sounded like a good point, but it isn't, because the clause actually says that they will undertake to not, during the life of the agreement, initiate campaigns of direct industrial action intended to secure new and improved rates and conditions during the term of the agreement - which is the same thing as the life of this agreement - or at the end of the agreement. The action can't be taken before the nominal expiry date to secure terms and conditions that were applied before the nominal expiry date or that are intended to apply at the end of the agreement.

PN45

THE COMMISSIONER: Except that the life of the agreement is as set by statute and the life of the agreement is until such time as it is either terminated in accordance with the provisions of the Act or until it's replaced by a new agreement; so the life of the agreement extends beyond the nominal expiry date.

PN46

MR HERBERT: Your Honour, ordinarily that would be so. I suggest this is probably inelegant or inelegantly phrased, but the intention of the terminology is so that you can't take industrial action before the end of the expiry period for terms and conditions that will apply after the end of the expiry period.

PN47

THE COMMISSIONER: An undertaking in the terms that you've just described for the purpose of the agreement would suffice.

PN48

MR HERBERT: Yes. Thank you, Commissioner. I'm sorry, I don't think my friend had finished.

PN49

THE COMMISSIONER: Mr Harding, the two issues you raise - one that goes to a genuine new enterprise and the second is does the AWU have the eligibility to cover the majority of employees.

PN50

MR HARDING: Yes.

PN51

THE COMMISSIONER: The second question can be dealt with without any further evidence. If I look at clause 4 of the agreement:

PN52

The agreement applies in the state of Victoria to (a) the company in respect to all of its employees engaged in mobile crane hire work on the Victorian Regional Rail Project as defined by the award.

PN53

I'm not certain that the Mobile Crane Hiring Award defines the Regional Rail Link Project, but if I treated that - there are possibly some commas missing - it would be "mobile crane hire work as defined by the award, but where that work is on the Victorian Regional Rail Project". That seems to be simply a sensible way of reading that provision. If that is the case, the mobile crane hire work is location specific. It's on the Victorian Regional Rail Project. It's not on work which is not the Victorian Regional Rail Project. If it is work on that project, then that issue as to whether or not the AWU can or cannot cover the majority of employees who would be employed under this agreement where they can only be employed under this agreement on the Victorian Regional Rail Project, should be answerable by reference to the eligibility rules of the AWU.

PN54

I say that because I note that you're being instructed by Mr Bakri in this matter. In an earlier matter today involving one of the packages for the Regional Rail Link Project, this same issue was raised.

PN55

MR HARDING: Yes.

PN56

THE COMMISSIONER: I decided in that earlier matter that where the agreement applies to the Regional Rail Link Project, that all employees who are working on the Regional Rail Link Project in relation to - in fact it's (b), the specific provision - are eligible for membership of the AWU. If this agreement is not limited to a particular package, but is limited to the entirety of what is known as the Victorian Regional Rail Project, then it would appear that the same questions or similar questions arose in other matters and that an examination of the rules of the AWU and submissions on that issue should be able to be addressed now.

PN57

MR HARDING: Well, there are two parts to my answer there, Commissioner. Obviously I wasn't privy to what you decided, but obviously everything has to be decided in light of the particular facts that are before you in relation to this agreement. I would agree to this extent: the question of whether the AWU for the purposes of 187(5) is entitled to represent the industrial interests of a majority of employees can be dealt with in relation to the submissions concerning the rules, but the question of whether or not this is a greenfields agreement, cannot.

PN58

THE COMMISSIONER: Yes, but I'm only dealing with this second issue.

PN59

MR HARDING: On the basis of the second issue, I think we can have a discussion about that, but it seems to me sensible that if we are to have that conversation but the other issue has to be dealt with in light of the facts that are presented before you, then they ought to be dealt with together rather than in bits, if that's your suggestion, Commissioner.

PN60

THE COMMISSIONER: It's a suggestion, but I'm here now. We're all here now and to the extent that I can resolve as many issues as possible now, I want to do that. To the extent that I may need to have further proceedings to deal with other issues or adjourn these proceedings to enable the genuine enterprise issue to be addressed, I can come to that. In relation to the requirement under section 187(5)(a), I have to be satisfied that the relevant employee organisation - in this case the AWU, because that is the organisation that will be covered by the agreement - is "entitled to represent the industrial interests of a majority of the employees who will be covered by the agreement in relation to work to be performed under the agreement."

PN61

The work to be performed under the agreement is work that is mobile crane hire work as defined by the Mobile Crane Hiring Award 2002 and that work is to be performed on the Victorian Regional Rail Project, given the specific provisions of clause 4(a) of the agreement. If I can clearly identify the work to be performed under the agreement, then the question is, is the AWU entitled to represent the industrial interests of the majority of employees who will perform mobile crane hire work as defined by the Mobile Crane Hiring Award 2002 on the Victorian Regional Rail Project? Now, that appears to me to be very much simply then an issue of the construction of the rules of the AWU in light of the case law.

PN62

What I certainly have in mind is the decision of the High Court in R v Coldham ex parte the Australian Workers Union [1983] HCA 35; (1983) 153 CLR 415. The AustLII citation is (1983) HCA 35. The joint decision of Deane and Dawson JJ was adopted by the joint decision of Mason ACJ and Brennan J. At paragraph 5 of the joint decision of Deane and Dawson JJ, they describe the work in that case. It's an eligibility issue. They say:


The workers in question (the relevant workers) are employed either by one or other of the various independent contractors engaged by the construction manager to carry out the various facets of the overall construction of mine, refinery and associated facilities or by a subcontractor engaged by one or other of such independent contractors in that regard.

PN63

Now, that's the group of workers that they are describing. They then go on and they quote from the decisions of Jacobs and Aickin JJ in R v Moore ex parte Federated Miscellaneous Workers Union of Australia [1978] HCA 51; (1978) 140 CLR 470, which is the Uranium Mining case. They go on to say - and it's paragraph 15 of the decision on the AustLII reports:

PN64

It is plain that the workers in the present case are themselves performing work in or in connection with that industry and that they are employed by subcontractors who are, insofar as the work of those workers is concerned, themselves engaged in that industry. The application of the considered comments of Jacobs and Aickin JJ set out above to the circumstances of the present case leads, in our view, to the conclusion that all of the relevant workers are eligible to become members of the AWU in that they are, for the purposes of the AWU's eligibility provisions, workers "engaged in manual or mental labour in or in connection with" the metalliferous mining industry.

PN65

If I look at that and take that same approach and apply it to the AWU rules and the work of a mobile crane hire contractor with mobile crane hire workers as defined by the 2002 award engaged in work on the Regional Rail Link Project, and if I replace the words "metalliferous mining" with the words "railway construction work", which is one of the other specific industry groupings in the AWU eligibility rule, it appears to me - and it only appears to me at this stage - that the mobile crane work, if it's performed by a contractor or even a subcontractor of a contractor to a client, would be work that is in or in connection with the railway construction work industry. Now, that's what it appears to me.

PN66

What do you say about that, because this is not an issue which I thought is one that we need an adjournment on. It's something that can be specifically dealt with. I'm quite happy to give you, if you haven't got it, a copy of the decision in R v Coldham. I'm quite happy to stand the matter down long enough for you to read the decision. I'm also quite happy to give you a copy of the eligibility rule of the AWU.

PN67

MR HARDING: Mr Herbert has kindly provided me with a copy. I already had one myself.

PN68

THE COMMISSIONER: Well, if you've got a copy of the rules, then - - -

PN69

MR HARDING: He may well wish to address you on that issue given it's his onus, Commissioner, before I do.

PN70

THE COMMISSIONER: Yes, but because you've raised it as the challenge and because these are the issues which I've got to be satisfied on, I've got to do my own - - -

PN71

MR HARDING: Yes, you do.

PN72

THE COMMISSIONER: I've got to inquire enough to be able to work out what questions to put to - whether it's the applicant or the deponent. Given that the statutory declaration says yes - it ticks the "yes" box in relation to this matter - I've got to check whether or not I can rely upon that statutory declaration. Given the fact that "railway construction work" is a specific stand-alone phrase separated by a comma at either end on line 14 of subrule 1 of part A of section 1 of rule 5 of the AWU rule and given that when you read that rule it would relevantly read that the AWU has eligibility in relation to -

PN73

every bona fide worker, male or female, engaged in manual or mental labour in or in connection with any of the following industries or callings, namely ... railway construction work.

PN74

If that's the case, then having regard to the Coldham decision that I've just taken you to, it would appear to me that Elite Cranes as a contractor or subcontractor on the Regional Rail Link Project providing mobile crane hire work, would be in the same category as the employees who are described in the Coldham case and for the same reason would appear to then be persons employed in or in connection with the industry of railway construction work.

PN75

MR HARDING: On that basis, Commissioner, perhaps if I deal with the rules and explain why I say that the preliminary impression you formed is not so. The first thing to note about clause 4, as you have, which is there is reference in 4(a) to "the Victorian Regional Rail Project as defined by the award" - and, as I said earlier, the relevant provisions of the 2002 award which are incorporated into the agreement include the definitions clause of the award. Commissioner, I don't know if you have that award before you.

PN76

THE COMMISSIONER: No, I don't.

PN77

MR HARDING: You don't have a copy. I don't know if my friend has either.

PN78

THE COMMISSIONER: Just one moment.

PN79

MR HARDING: If you can't, I'll pass around the bit that I'm wanting to refer to.

PN80

THE COMMISSIONER: If you just wait one moment, please. Okay, I've got the award.

PN81

MR HARDING: Clause 5.5, page 2 of 3. That doesn't sound right because there's more than three, but it's what it says at the bottom of mine.

PN82

THE COMMISSIONER: "Mobile crane hiring industry."

PN83

MR HARDING: Okay. There you go. So we have the specification of an industry described by the award which starts with the words "Is a service industry involving the hiring of mobile cranes" and then goes on to describe other things that it does. It is a service industry and I'll tell you, Commissioner, why that is significant in a minute; but I think I want to highlight those words. In a decision of Northrup J - and I apologise to my friend and to the commission. I didn't have much time to prepare so I only have my copy, but I'm happy to distribute it if required - and it's the decision of Burgess v John Connell-Mott, Hay and Anderson Pty Ltd, [1979] FCA 12; 37 FLR 386. Commissioner, his Honour there was considering a case involving an employee who was dismissed and the question arose as to whether for the purposes of the proceeding before his Honour - whether he was covered by the rules of the Australian Workers Union. His Honour found that that was not so.

PN84

He started by considering the rule, which is in similar terms to the rule that's currently expressed in part A of the eligibility for membership rule 5, which begins "Every bona fida worker." He quotes from the High Court decision of Federated Liquor and Allied Industry Employees Union of Australia ex parte Australian Workers Union, where it was said by the Chief Justice:

PN85

It is well settled that an eligibility clause expressed in the terms of the eligibility clause of the applicant should be construed as relating to the industry of the employer. That is to say that persons to be eligible to be members of the organisation must be employed in an industry carried on by their employer which satisfies one or more of the descriptions of the eligibility clause.

PN86

That's set out at page 396 of the report. His Honour goes on to set out the authorities, as to how one characterises the industry of the employer by reference to difference tests, the substantial test, whether it's an integral part of the industry test, and deals with it on that basis. The High Court decision to which his Honour was referring is reported in the Australian Law Reports at [1905] ArgusLawRp 130; 11 ALR 449. It's the judgment of his Honour Barwick CJ, with which the other members of the court agreed unanimously. His Honour at 453 of that decision says what I've just said:

PN87

It is well settled that an eligibility clause expressed in the terms of the eligibility clause of the applicant should be construed as relating to the industry of the employer.

PN88

The applicant was ex parte Australian Workers Union. The employer is Elite Cranes and we know from at least the definition in the award - and there is an element of fact here, as well, but that it is involved in the hiring of cranes. That's its work. That's its business. That's what it does. It doesn't perform work in the industry of rail construction. Therefore, when you read clause 5 of the eligibility rules, the words "in or in connection with any of the following industries" - and, Commissioner, you've pointed out railway construction work - should be read as "in or in connection with any of the following industries of the employer" and the employer is not in the industry of railway construction work.

PN89

Now, true it is then that there is another rule and that is set out in rule 5, subrule (4)(c), which is, "The construction, repair maintenance or demolition of (i) civil and/or mechanical engineering projects." This is where I hesitate about this issue, Commissioner, in relation to whether or not it can be all dealt with today, because there's a question of fact as well as a question of law. That is turning on the words "civil and/or mechanical engineering project". I mean, you know, it might be said by my opponent that this is a civil project, but the question as to whether or not it falls into that category is a matter that might turn on the fact as to what the actual work of the business, the enterprise, the new enterprise, it is said Elite Cranes is going to provide.

PN90

In any event, it has been held by the High Court that it is not enough to be within the industry if you are providing services to an industry. I draw attention to the definition in 5.5 - "is a service industry". This is what Elite Cranes do. They provide services. This is what they're calling up in their definition. It's not enough to be within the industry merely by providing services to it. In R v Central Reference Board and Others ex parte Thiess (Repairs) Pty Ltd, [1948] HCA 9; 77 CLR 123, Latham CJ dealt with this question in the context of the coal industry. His Honour said at 130:

PN91

It is a question of fact depending upon all the circumstances of the case whether a particular employer or employee is engaged in the coal mining industry, with the result that an industrial question arising between the employer and the employee or an organisation consisting of employees, is a dispute or other matter in that industry. The line between industries is in many cases not clear. One industry may be entirely concerned with the service of another industry and yet may not be part of that other industry.

PN92

A laundry company may do work for hotels and restaurants but, to take a case at one end of the line, if the laundry business were conducted by a laundry company completely separate from any of the hotels and restaurants for which it did work, as for other customers, upon ordinary commercial terms it would not be possible to say that the laundry was part of the hotel industry. A case at the other end of the line would be found where a hotel employed some laundresses on the hotel premises who did work exclusively for the hotel and were completely under the control of their employer. In such a case the laundresses might well be held to be working in the hotel industry.

PN93

What his Honour draws attention to is that distinction that arises as between the activity of one providing services to another industry undertaking different activities. What we know from his Honour is that merely by providing those services, does not take you into the rail construction industry or the civil construction industry or another industry. What we know from the award is that mobile crane hiring is itself characterised as an industry.

PN94

That is further confounded by clause 4 itself because, Commissioner, if you then look under the heading - this is under clause 4 and then you've got "Project or principal contractor arrangements" - what we find is then you can have an arrangement, you've got this award that binds the employees in respect of allegedly the Victorian Regional Rail Project as defined, but if you're going to provide work or provide labour at a site that already has a site agreement or another enterprise agreement that provides for better terms and conditions, then employees get the benefit of those conditions; which further blurs the line as to which industry we're here talking about and whether or not in fact the AWU can say that its rules cover it. How would you know, Commissioner? How can you know? The clause itself blurs that line.

PN95

You cannot be satisfied that the AWU - even if you were to find against my submission, you cannot be satisfied that on every occasion it would have the eligibility. Apart from anything, that clause as it currently stands as a matter of public interest perhaps, could lead to, you know, demarcation disputes as between various organisations on the one site, but in terms of my principal submission what it does is further blur the line of industry - - -

PN96

THE COMMISSIONER: I thought the normal purpose of the clauses that provide that higher site rates apply, was to avoid that specific issue so that if a particular site agreement applies to a particular site and a specific enterprise agreement applies, then when workers go onto the larger site they pick up the higher pay rates in order to ensure that there's no issue of demarcation of functions between in-house employees and contractor employees. That appears to be the industrial sense behind those clauses rather than them being clauses that relate to an issue of eligibility and therefore demarcations in relation to eligibility issues.

PN97

MR HARDING: Well, yes. The problem that you have, Commissioner, is you're confronted with an agreement - you've got a company that provides mobile cranes. It could provide them to one company to do one activity one day, another company on another day and then what we have is a situation where you have to look at the agreement and decide, you know, is this part of the Victorian Regional Rail Project? Is it not? If so, is there a site agreement or is there not?

PN98

There are all these potential areas of disputation that can arise because of the nature of this industry, which is the mobile crane industry. It can't be bounded naturally by the nature of the work because the company by its own definition as pulled up by the award, can provide services to any person who wishes to purchase them.

PN99

THE COMMISSIONER: Yes, but isn't that issue resolved by the specificity of clause 4(a) of the agreement, that this agreement doesn't relate to all the work of the employer? It relates only to that work which is on the Victorian Regional Rail Project. Another area of dispute that I've unfortunately had to deal with is the widening of the ring road, so if there's the provision of mobile crane hire by this particular employer to the ring road projects, that has got nothing to do with what might be a genuine new enterprise of this employer going into Regional Rail Link Project work and if a piece of equipment is moved, it doesn't necessarily mean that that has any impact upon wages and conditions of employment. This agreement applies to that which is the genuine new enterprise and that would only be that work on the Regional Rail Link Project. That's subject to me being satisfied that it is in a genuine new enterprise.

PN100

MR HARDING: Yes.

PN101

THE COMMISSIONER: But even if this was an exercise where this wasn't a greenfields agreement but was an additional agreement where one agreement said, "We cover mobile crane hire work in building construction," and then the company said, "Well, we'll have another agreement that covers mobile crane hire work in railway construction," other than the fact that different jurisdictional questioning arises in relation to "fairly chosen" - but, you know, it becomes more important there where you've got existing employees; but the two agreements can happily sit side by side. In fact any search of the FWA web site shows that in a number of these areas we've got construction companies, maintenance companies, service companies. They can have a multitude of agreements depending upon highly specific areas of work that they perform, all of which are organisationally distinct or - - -

PN102

MR HARDING: That's a threshold question in the Act, isn't it, though? In an ordinary agreement an organisationally distinct component of a company is a base upon which it can make an agreement with the employees in that area of the company.

PN103

THE COMMISSIONER: But every one of those questions is resolved by reference to the Act, not by raising the spectre of demarcation disputes. We simply look at whether or not the requirements of the Act have been met. To raise the spectre of demarcation disputes as the argument against making a multitude of agreements, if parliament had wanted to do that, they could have simply put those words in. It wasn't. There are different mechanisms to deal with demarcation disputes which arise under the Registered Organisations Act.

PN104

MR HARDING: Yes.

PN105

THE COMMISSIONER: It appears that clearly the intention of parliament is deal with demarcation disputes under the Registered Organisations Act, but deal with these issues of bargaining under the specific provisions of the Fair Work Act.

PN106

MR HARDING: Yes, although I think my point was in relation to disputes about terms and conditions in the interaction of these provisions, but - - -

PN107

THE COMMISSIONER: Which are the traditional demarcation disputes, not which arise in a cheap labour versus expensive labour.

PN108

MR HARDING: Yes.

PN109

THE COMMISSIONER: Contractors versus in-house employees.

PN110

MR HARDING: Yes. Commissioner, the primary point that I was making in relation to these clauses is how they impact on the question of whether the AWU has the rules to cover the majority of employees that might be employed, whoever they are, and how these clauses interact with that issue. That's the primary position. The public interest issue I raised as an aside, but the primary position is in relation to how that impacts with 187(5).

PN111

THE COMMISSIONER: Yes, but in the case of this matter, merely because an award of the former Australian Industrial Relations Commission describes an industry as a service industry, to me doesn't mean that I read that in the context of say the Poon case where it's a service, therefore it's outside the industry. It appears that whether you describe it as a service industry - and I suppose it has to be a service industry because mobile crane hire companies that have their cranes working out in a paddock doing nothing but going up and down in the air means nothing because they're not lifting anything. They lift things for someone else, so in that sense it's a service industry, but it doesn't appear to get away from the approach of the High Court in cases such as R v Coldham ex parte AWU where it's the nature of the work that is being performed is - this is integral to the construction of the Regional Rail Link Project.

PN112

The only purpose of having a mobile crane perform work is not so that you've got a pretty crane lifting up and down a bunch of balloons; you've got a crane lifting railway lines into place, lifting or moving equipment that has to be moved around the site, lifting bridges into place, lifting drainage works into place, lifting metal structures for overhead gantries or signalling - it all has to do with the Regional Rail Link Project, which is railway construction work. It appears that it falls directly then within the High Court authorities which say you can't separate the industry of the employer in this sense from railway construction work.

PN113

MR HARDING: Yes.

PN114

THE COMMISSIONER: It may be that the industry of the employer is multitudinous given that it could be in the oil industry tomorrow, it could be in the shipping industry or the maritime industry the day after, but with different employees and different cranes, or it could be in all industries simultaneously if it has got enough staff and enough cranes for the contracts.

PN115

MR HARDING: It might be, but, Commissioner, the authorities that I've taken you to are High Court authorities dealing with the AWU's rule and what those High Court authorities say in relation to that rule is, firstly, "in or in connection with" is in or in connection with the industry of the employer. That's the first thing to say.

PN116

THE COMMISSIONER: Yes.

PN117

MR HARDING: So the gravamen of connection is the industry of the employer. That's what you first look at. If you're not satisfied that this employer is in the industry of rail construction, then it doesn't fit. It simply doesn't fit. Not because that might have been that in a practical sense there's work that they provide by way of services to the rail industry, but because it doesn't fit within the rule of the AWU as that rule is set out. The problem here is not really what the work is. The problem is the terms of the rule itself and the requirement of the Act which says that this union can only make an agreement in relation to those who it's entitled to represent. That's the point.

PN118

THE COMMISSIONER: Yes.

PN119

MR HARDING: Now, in relation to what you say, Commissioner, about the award of the commission, the important point is that the parties have picked up that definition and put it into their agreement by incorporation; so they've accepted the definition of the industry as it was made by the Full Commission and put it in this agreement, and then by virtue thereof are saying, "We accept that this is the work that will be done by these employees in relation to this industry." That's what it means by clause 4.

PN120

Now, they then go on to say "but on the Regional Rail Project", true it is, but they've taken up as their description - it's their description of the industry that they've adopted and they seek to make as part of the deal that they've done. You've got to look at it in that way. It's not really about trying to impose a definition of an industry made by the former Commissioner reached in the context of an award dealing with the resolution of a dispute. That may have been its origins, but since then the parties have taken another step and have said to you, "Commissioner, certify this deal which we accept as being an appropriate way of regulating our relations. That includes that definition." They're bound by it, they're stuck with it, because they've adopted it. It starts quite clearly by characterising this as a service industry. Just to follow that point, Commissioner, if I could just finish that point - - -

PN121

THE COMMISSIONER: No, doesn't this form the same problem I have constantly, which is persons who are not necessarily legally trained and qualified have views as to what are the eligibility rules or may not be the eligibility rules and ultimately it doesn't matter whether someone says, "Oh, this is the industry," or, "This is the eligibility of this particular union;" it's so loosely informed by just their participation in an industry. It's not informed by persons saying, "We draft this clause of an agreement by having regard to High Court authorities relating to eligibility," and unfortunately it then comes back to me to be able to answer the question in section 187(5)(a), which is does the organisation of employees who seeks to be the party to a greenfields agreement have an entitlement under its eligibility rules to represent a majority of employees?

PN122

That's not a question that is generally assisted by the views expressed by those who may have negotiated the terms of the agreement. It's much more determined by looking at some of those issues which go to the specific nature of the work that is going to be performed and then analysing that, as you're doing, in the light of the case law.

PN123

MR HARDING: Well, I put it the other way around, I guess, Commissioner. Yes, it's true, I agree with you that a subjective opinion by someone who is negotiating an agreement that, you know, the AWU has coverage, is not germane to - well, it gives some basis upon which you can answer the question posed by section 187, but ultimately the question that's posed by section 187(5) is a question of law.

PN124

THE COMMISSIONER: Yes, which means ultimately can't be decided by me.

PN125

MR HARDING: But in the first instance it has to be.

PN126

THE COMMISSIONER: That's right, but ultimately - - -

PN127

MR HARDING: And I'm pressing an application in which I say you ought to decide that in the negative.

PN128

THE COMMISSIONER: Yes.

PN129

MR HARDING: And the reason you ought to decide that in the negative is because the law is against an affirmative answer.

PN130

THE COMMISSIONER: Yes. Those cases you've drawn me to.

PN131

MR HARDING: On the basis of those cases that I've drawn you to and on the other submissions that I've made about how the parties have chosen to construct their agreement.

PN132

THE COMMISSIONER: Yes.

PN133

MR HARDING: The reality is notwithstanding what the parties would prefer to have in their agreement, the statute says there are some limitations. "Permitted matters" is an obvious one; "pertaining to the employment relationship" is another. This is another, so the statute simply says, you know, not everyone can come along and make a greenfields agreement, bearing in mind that in one sense a greenfields agreement is profoundly anti-democratic. What it does is give an employer and a union the right to make a deal which binds workers who have otherwise not had a say in the terms and conditions - which the law allows. I accept that.

PN134

THE COMMISSIONER: That's right, but every agreement does that.

PN135

MR HARDING: Well, except that the employees get a vote.

PN136

THE COMMISSIONER: But not future employees.

PN137

MR HARDING: Yes, okay. Not future employees.

PN138

THE COMMISSIONER: And greenfields agreements only relate to future employees, so in that sense it has - - -

PN139

MR HARDING: Yes.

PN140

THE COMMISSIONER: - - - an equal odiousness to any other enterprise agreement in denying future - but then parliament has said it's appropriate.

PN141

MR HARDING: Yes. I don't stand back from that, but what I do say about that is that therefore parliament has imposed constraints and one of those constraints is that the union who is seeking to make the greenfields agreement with the employer must be able to bring itself within the rules. That is a question of law and on the basis of the authorities I've taken you to and the submissions that I've made, you ought to answer that question in the negative.

PN142

Really the starting point is to look at the agreement as presented and consider it in light of the eligibility rule of the AWU as that rule has been construed by the courts, not really whether the work that might be performed under it is or is not relevant to the question of whether the rule applies. The issue at the end of the day is on the terms of the rule does the AWU have eligibility? In my submission, it doesn't.

PN143

THE COMMISSIONER: Mr Herbert or - - -

PN144

MR HERBERT: Yes, I'm happy to deal with that.

PN145

THE COMMISSIONER: Before you deal with that issue, the first issue that was raised by Mr Harding was as to a genuine new enterprise.

PN146

MR HERBERT: Yes.

PN147

THE COMMISSIONER: Whilst the statutory declaration says it is, there's no additional material before me to say it is.

PN148

MR HERBERT: I accept that.

PN149

THE COMMISSIONER: How do you propose to deal with that, because Mr Harding has said on that basis the matter should be adjourned. I'm aware that prior to the hearing, Mr Harding - or his client had sought to have a video link set up between Melbourne and Perth so that he could examine the deponent to the F20. I didn't accede to that request because I really didn't know where it was going to go, but now I do.

PN150

MR HERBERT: Yes.

PN151

THE COMMISSIONER: I understand what the issues are.

PN152

MR HERBERT: Can I just say that he's certainly not my witness. He's the employer's witness, but - - -

PN153

THE COMMISSIONER: Yes, but what do you say about the general issue?

PN154

MR HERBERT: The general issue is a significantly different issue from a factual point of view than the ones that you determined, for example, in the matter this morning, because it goes to a subcontractor who has a particular activity and, so far as I'm instructed, does have a wider business of crane hire and the totality of its business at the end of this process will not cover just this project. It will have business elsewhere. In that sense a specialist contactor in that area does raise different factual issues, I accept that, and to put it bluntly the question as to whether this is a new enterprise or it is a new job in an existing enterprise in relation to a contract in business, certainly is a matter that requires elucidation. I accept that. I certainly don't run away from that.

PN155

To that extent, I accept that now that this issue has been put in contention and the issue is there to be looked at, that if you require further factual persuasion in relation to that issue, then it's a matter that would require the matter to be adjourned for a short period so that the employer could provide that information.

PN156

THE COMMISSIONER: Yes.

PN157

MR HERBERT: We can't argue with that. The difficulty of course, the practical difficulty, Commissioner, as you're aware, is the parties don't anticipate - can't anticipate - who's going to come in from left field or right field or down from the clouds to challenge some particular point. Were they to start at every shadow and provide information to deal with every potential argument that might be put against them, the paperwork would be enormous and most of it would be quite unnecessary. The full bench authority in relation to that is quite recent and quite clear; that once a matter has been raised in something more than a frivolous way and the commission as presently constituted is put on an inquiry, then it's within the discretion of the commission to require the parties to put on future material.

PN158

For our part, we don't oppose that, because of course an alternative might be that you don't reach the relevant state of satisfaction on the yes/no boxes that the form provides, in which case the application would be dismissed, and that of course would be the worst of all worlds from our point of view. In the event that you, having heard from my learned friend, entertained any reservation at all that you would require more factual material to satisfy yourself, then we can't oppose the matter being stood over for that purpose, but for a limited period.

PN159

THE COMMISSIONER: Then before you go into dealing with the second issue, which is the eligibility rule, can I ask, Mr Randla, what is your position in relation to any further material that relates to the genuine new enterprise?

PN160

MR RANDLA: Well, Commissioner, this issue first reared its ugly head this afternoon and my office had without prejudice discussions with my learned friend's instructor. During the course of those discussions, some issues were raised that we didn't know whether they were going to be put to the commission this afternoon.

PN161

THE COMMISSIONER: Do you have anyone available to give evidence?

PN162

MR RANDLA: Not today. No, Commissioner, I don't have anyone available. I would suspect that the most appropriate person to give that evidence would be the deponent, Mr Damien Gatto.

PN163

THE COMMISSIONER: And he's not available?

PN164

MR RANDLA: Unfortunately, today he's not available. He's on well earned leave and a holiday with his family out in WA. I made some inquiries with his - - -

PN165

THE COMMISSIONER: I can interrupt his holiday.

PN166

MR RANDLA: I'm sure you probably can, but I wouldn't suspect that he'd be happy with that himself. As my inquiries have led me to believe, he is unavailable. He might be on a boat somewhere or something like that and he wouldn't be able to make it to any kind of facilities that could provide for video conferencing at all.

PN167

THE COMMISSIONER: Do you know when he will be available?

PN168

MR RANDLA: He will be back after Tuesday of next week, so on Wednesday he should resume - - -

PN169

THE COMMISSIONER: And is that back in Melbourne?

PN170

MR RANDLA: Correct.

PN171

THE COMMISSIONER: Mr Herbert, I'm quite happy to video link, if you want to, with Brisbane, but if you want to come to Melbourne for a hearing to examine Mr Gatto - Mr Harding, that meets your request that you have an opportunity of testing the issue.

PN172

MR HARDING: Yes. Can I just say that Wednesday is bad. Thursday will be better, if that was possible. Thursday or Friday.

PN173

THE COMMISSIONER: Friday morning?

PN174

MR HARDING: Friday morning, yes.

PN175

THE COMMISSIONER: I was also looking at my calendar.

PN176

MR HARDING: Yes.

PN177

THE COMMISSIONER: Which has similar difficulties. Mr Randla, would Friday morning - - -

PN178

MR RANDLA: Friday would suit me. That's no problem at all.

PN179

THE COMMISSIONER: Mr Herbert?

PN180

MR HERBERT: I'll have to move something, but I have something movable. I don't have holidays.

PN181

THE COMMISSIONER: You probably need a good union.

PN182

MR HERBERT: Yes. I need a good union, yes. I can do that. I would need to be instructed about whether I'm to be here in person or electronically, but - - -

PN183

THE COMMISSIONER: I'll give you the opportunity, knowing you are Brisbane based and to the extent that this is primarily an issue that has to be addressed by the employer - - -

PN184

MR HERBERT: Yes.

PN185

THE COMMISSIONER: That your role is not necessarily as the lead. You might be playing second fiddle to Mr Randla.

PN186

MR HERBERT: I'm not used to that, but - - -

PN187

THE COMMISSIONER: That's why I'm offering you the opportunity of doing it by video conference.

PN188

MR HERBERT: Yes. Thank you.

PN189

THE COMMISSIONER: If that assists. Can we agree then on Friday morning?

PN190

MR HERBERT: Yes.

PN191

DISCUSSION ENSUED

PN192

MR HERBERT: 9.30 I think would probably be quite achievable, subject to traffic, because I'd be on the ground at about 10 past 8 at Tullamarine and so I should be here by 9.30.

PN193

THE COMMISSIONER: Yes.

PN194

MR HERBERT: In that regard could I also indicate I'm a little surprised at the way the argument has been put and there is a very clear answer to the matters that are being put. Commissioner, I gave you some indication of the essence of that argument this morning and that is the mere fact that an employer provides what is said to be a service to another industry, doesn't mean that it isn't relevantly, for industrial purposes or the purpose of eligibility rules, engaged in that industry. The authorities are absolutely clear. The lines of distinction, if you like, between industries in this circumstance are not mutually exclusive for the fact that an employer identifies or is identified by awards or other instruments as being in an industry. It doesn't mean that it is not from time to time or permanently in another industry.

PN195

I instance the - and I'll refer my friend to it because I'll touch with you with this matter next Friday, but to foreshadow the Harnischfeger decision which I mentioned earlier, which is the full bench decision which dealt with this issue in the coal industry comprehensively in which ironically the CFMEU successfully argued the point that Harnischfeger as a manufacturer of mining plant equipment and the supplier of equipment to the coal industry, was in fact engaged in the coal industry by virtue of that fact, despite the fact the argument was put strenuously by me, as it turns out, on behalf of Harnischfeger, that it was a service provider to that industry. That argument was accepted, but it was also said that has nothing to do with the question of whether it is in fact in the industry for the relevant purposes of the CFMEU eligibility rule.

PN196

That is a very clear and relatively recent full bench authority in this jurisdiction in relation to those matters. The bald statement made by my learned friend that because somewhere in an award it describes the industry as described or describes itself or a mobile crane hire industry is described as a service industry, therefore means ipso facto it must be held in every possible circumstance to be carried out by employers who are not within the industries in respect of which they provide services - that bald contention is just plain wrong. If one were to take the example of a mobile crane which became permanently anchored on a building site for a very long period of time and did nothing but facilitate the building of the relevant equipment, it would be said the persons who operated that equipment were engaged in the building industry by dint of what they were doing and - - -

PN197

THE COMMISSIONER: I must admit I have seen some mobile cranes that seem to become permanent fixtures.

PN198

MR HERBERT: Yes. Tower cranes are permanent fixtures and mobile cranes - - -

PN199

THE COMMISSIONER: I have the privilege of riding my pushbike to and from home to work each morning and each night, and I go past Docklands and past the great Southern Wheel. It hasn't been a wheel for several years.

PN200

MR HERBERT: It looked like the great southern spokes to me, when I went past it this morning.

PN201

THE COMMISSIONER: Yes, but it also seems to be the permanent resting place for mobile cranes.

PN202

MR HERBERT: Yes.

PN203

THE COMMISSIONER: With the number - - -

PN204

MR HARDING: They're just parts, Commissioner.

PN205

THE COMMISSIONER: They did move occasionally. I think it's probably to make it easier for the rabbits to get around the place.

PN206

MR HERBERT: Yes, but it's accepted, Commissioner, that as to whether an employer who engages in a business which traditionally applies its trade in a number of different industrial settings - as to whether in a given case it is engaged in or in connection with a particular industry. It's accepted that will be a question of fact which will be need to be determined by reference to what it is that Mr Gatto's company proposes to do on this site.

PN207

You heard this morning and you heard over a number of cases that the various packages in this project are worth hundreds of millions of dollars each and will go for a very long period of time. It is absolutely possible - and the evidence will need to establish this, but it is absolutely possible that a company that is otherwise an episodic service provider would become an established part of a project of this kind for the life of the project, because cranes, one would imagine, would be used all day every day on a project of this kind and, as such, would sufficiently incorporate themselves into the fabric of the project that the employer could be said to be engaged in or in connection with that industry.

PN208

Arriving for one hour and leaving again and never coming back, one would say, would not be, or dealing with a matter such as the case to which my friend referred - which really has nothing to do with this case because it was a reference to the Poon Brothers case. Poon Brothers as, Commissioner, you will recall, was a case in which there was a catering and laundry company which was dedicated to that service. It didn't pick up an ounce of mineral product of any kind at all. It didn't go anywhere near the mine site.

PN209

It was held in the circumstances, because its dedicated function had nothing to do with mining and it was just an offshoot of a dedicated catering company - in those circumstances it was not in or connected with the metalliferous mining industry; but this is a different situation altogether. A crane goes into a building site. It's part of what's going on, on the very building itself, so it is very readily able to be incorporated in the project, whereas catering, it would be very clear, could not readily be incorporated into the project, so there was no assistance to be gained from the Poon Brothers case.

PN210

I'm at a bit of a disadvantage because I didn't understand that those authorities were going to be gone to today or even the extent to which the point was to be put today, but perhaps the answer to all those questions is that I can deal with those matters next Friday by reference to the relevant authorities and by reference to the evidence that by then you will have, assuming Mr Gatto is able to put something together in writing beforehand to shorten the length of those proceedings.

PN211

THE COMMISSIONER: Yes. What I do intend to do is I will adjourn until 9.30 on Friday if Mr Herbert is to attend in person in Melbourne. If Mr Herbert is to attend by way of video conference, it has to be later because of the practical issue of ensuring that there are registry staff available in Brisbane who can set up the videoing facilities. If it's going to be done by video conference, it will be a 10 o'clock start in Melbourne because that will be a 9 o'clock start in Brisbane.

PN212

I'll issue the notice of listing on the basis of a 9.30 start without video conferencing and I might re-visit that depending upon whether the AWU seeks to have video conferencing. If any other parties, for some reason or other, suddenly finds that there's another reason the parties will have to be linking from elsewhere, I'll take that on board, as well. What I also intend to do with the matter is that whilst I put you to the task, Mr Harding, of outlining all your arguments in relation to section 187(5)(a), I'm not going to hold you to the fact that that's the sum total of your submission.

PN213

MR HARDING: Yes.

PN214

THE COMMISSIONER: I certainly would appreciate any clarification you want to make on any of those points or any expansion you want to make on those points, as well. Equally, Mr Herbert and Mr Randla, to the extent that the issue of section 187(5)(a) is still a live issue, I would give you both the opportunity of making any submissions you need to make next week. I would appreciate that at least the parties file a list of authorities. I don't want submissions, but I need to know the authorities I need to read before we have the hearing next Friday. I'd prefer it if you don't necessarily just give me a citation for a 100-page High Court decision and I've got to go and try and find something that's relevant. An indication of what are the relevant paragraphs would be most helpful.

PN215

In relation to the evidence, the evidence will be limited and any examination of a witness either in-chief, cross-examination or re-examination, will be limited to the issue as to whether or not the business of the employer to be covered by this agreement is a genuine new enterprise.

PN216

MR HARDING: Well, Commissioner, can I say there are two issues. I think the other issue is the one in (ii), which is any new employees. We would seek - - -

PN217

THE COMMISSIONER: I take the two as really the one - - -

PN218

MR HARDING: As a package, yes.

PN219

THE COMMISSIONER: As a package. In other words, you can't have a genuine new enterprise unless there are no employees. If there are employees who are necessary for the performance of work in the terms of the agreement, it can't be a genuine new enterprise; that second limb of the test. I'm taking it that the evidence relates to those issues, not to any other issues that might want to be explored about eligibility rules or anything that might relate to other aspects of the contents of the agreement. It's a limited issue for the purposes of satisfying me whether or not it meets the statutory tests relating to it being a greenfields agreement.

PN220

MR HARDING: Commissioner, can I just join with Mr Herbert in relation to the evidence and say that it would be of assistance - and it may not be appropriate to make an order to this effect - if Mr Gatto could file a statement dealing with the matters that are in his - - -

PN221

THE COMMISSIONER: Yes, it would be of assistance, but I'm not going to require it. I agree with Mr Randla that - - -

PN222

MR RANDLA: I've already agreed that I'll ask my client to put a statement together and have it filed - - -

PN223

THE COMMISSIONER: It makes it much easier for everyone to get through the matter expeditiously if a statement is led.

PN224

MR RANDLA: Yes.

PN225

THE COMMISSIONER: I'm fully aware that questions will go beyond whatever are the mere words of the statement because it's pulling it apart and understanding it, but at least the statement gives us a very quick starting point and can effectively assist in the resolution of the matter. Does anyone else want to say anything? Okay. When will each of you be able to file a list of authorities? Can I say by Tuesday evening?

PN226

MR HARDING: My instructors are preferably Wednesday evening, if that's all right, Commissioner.

PN227

THE COMMISSIONER: Okay. Wednesday evening. I need a full day to be able to - - -

PN228

MR HARDING: Yes.

PN229

THE COMMISSIONER: And I don't have a full day.

PN230

MR HARDING: Yes.

PN231

THE COMMISSIONER: I've already got other matters on Thursday, but I need the time to just be able to go through them. Wednesday evening, I'm quite happy with that.

PN232

MR HARDING: Yes.

PN233

THE COMMISSIONER: I'm not going to issue any directions. I'll just take it that that will happen. Thank you, everyone. The tribunal stands adjourned.

<ADJOURNED UNTIL FRIDAY, 2 MARCH 2012 [3.47PM]