C2012/5911, Transcript of Proceedings [2013] FWCTrans 81 (11 February 2013)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 1035355-1

JUSTICE ROSS, PRESIDENT
SENIOR DEPUTY PRESIDENT O'CALLAGHAN
COMMISSIONER LEE

C2012/5911

s.604 - Appeal of decisions

Appeal by Transport Workers' Union of Australia & Michael and Another
(C2012/5911)





Melbourne

9.12AM, THURSDAY, 20 DECEMBER 2012

Reserved for Decision

PN1

JUSTICE ROSS: Could I have the appearances, please.

PN2

MR A. HATCHER: If it please the tribunal, I seek permission to appear for the appellants.

PN3

JUSTICE ROSS: Thank you, Mr Hatcher.

PN4

MR S. WOOD: If the tribunal pleases, my name is Wood. I seek permission to appear on behalf of the respondent, Coles Supermarkets Australia Pty Ltd, with my learned friend, MR A. POLLOCK.

PN5

JUSTICE ROSS: Thank you. Permission is granted in each case. We have had the opportunity to read the submissions that have been filed and the decision under appeal. I have got some questions that arise from those. What's your preference, Mr Hatcher? Do you want to make whatever short oral submissions you wish to make in reply to the respondent and then deal with the questions or - - -

PN6

MR HATCHER: Perhaps I'll deal with the questions first, your Honour. I was primarily going to deal with some issues that were raised in the respondent's submission and reply to them, but perhaps if the questions overlap with those, it might be more efficient if I deal with the questions and - - -

PN7

JUSTICE ROSS: All right. Can I just ask at the beginning, is there any contest as to the factual matters in paragraph 7 of the appellant's submission by the respondent? In other words, do we need to go to the affidavit of Mr Pollock or have you had a discussion about that?

PN8

MR HATCHER: No, your Honour.

PN9

MR WOOD: No, I don't believe so, your Honour.

PN10

JUSTICE ROSS: All right. In that case we don't need the affidavit, do we?

PN11

MR HATCHER: No.

PN12

JUSTICE ROSS: What do you say is the ratio of the decision subject to appeal?

PN13

MR HATCHER: If one goes to the - well, I think this overlaps with something the respondents raised.

PN14

JUSTICE ROSS: Yes.

PN15

MR HATCHER: If one goes to the judgment itself, and looks at it, one would have to conclude that the adjudication, if one can use that expression, is what is contained in paragraph 40 as set out at appeal books volume 1 pages 14 to 15.

PN16

JUSTICE ROSS: Except that not all those conclusions are necessary to resolve the matter that was before him.

PN17

MR HATCHER: That would be correct.

PN18

JUSTICE ROSS: I just want to focus, not on whatever findings he may have made, or how he dealt with other matters. What was necessary for him to determine the matter before him?

PN19

MR HATCHER: Well, there's differing views about that but if I can draw the tribunal's attention to page 15, the conclusion that appears on the top of appeal book page 15, it's the conclusion which appears on the very first sentence of that page.

PN20

JUSTICE ROSS: Can we just go to the decision. Just explain the decision.

PN21

MR HATCHER: Yes. Sorry, it's page 10 of the decision.

PN22

JUSTICE ROSS: Which paragraphs?

PN23

MR HATCHER: It's part of that last paragraph, paragraph 40, which states the conclusions.

PN24

JUSTICE ROSS: Yes.

PN25

MR HATCHER: So if your Honour goes to the top of the last page of the decision.

PN26

JUSTICE ROSS: Yes.

PN27

MR HATCHER: His Honour, in that first sentence - - -

PN28

JUSTICE ROSS: "That determines the issue."

PN29

MR HATCHER: "That determined the issue to finality," because the resulting - - -

PN30

JUSTICE ROSS: It was the operation of the transitional provisions. So what he had to decide was that the 2008 agreement and the 2011 agreement were coextensive - - -

PN31

MR HATCHER: Yes.

PN32

JUSTICE ROSS: - - - as far as their scope.

PN33

MR HATCHER: Yes.

PN34

JUSTICE ROSS: And once he decided that, that was the end of the matter. Is that what you're saying?

PN35

MR HATCHER: That was our case. That was our case below and it's our case here.

PN36

JUSTICE ROSS: All right. Is your case different?

PN37

MR WOOD: No, no.

PN38

JUSTICE ROSS: No, all right.

PN39

MR HATCHER: Well, my learned friend says "no", but if you read his submissions he says, "It was necessary for his Honour to make determinations as to the scope of those agreements in order to reach that conclusion."

PN40

JUSTICE ROSS: Well, to this extent it was necessary for his Honour to determine that they were coextensive.

PN41

MR HATCHER: We agree with that.

PN42

JUSTICE ROSS: Whether it was necessary to determine what was within the scope, simpliciter, if you like, of each, and whether CSAs were in the scope, is the issue of contest. Is that right?

PN43

MR HATCHER: That was the issue of contest but his Honour did - - -

PN44

JUSTICE ROSS: No, no, I mean between you and parliament.

PN45

MR HATCHER: Yes.

PN46

JUSTICE ROSS: On the basis of the written submissions and Mr Wood's file.

PN47

MR HATCHER: Exactly. So we say once his Honour expressed what was in that sentence, that meant there was no jurisdiction, and his Honour had no power to do anything else.

PN48

JUSTICE ROSS: Yes.

PN49

MR HATCHER: That was the start and end of it.

PN50

JUSTICE ROSS: Yes.

PN51

MR HATCHER: And to the extent his Honour did do more than that, his Honour was doing things he had no jurisdiction to do, with respect.

PN52

JUSTICE ROSS: Your complaint though is that his Honour made a number of findings that weren't necessary for that conclusion.

PN53

MR HATCHER: Yes.

PN54

JUSTICE ROSS: On that basis were they obiter?

PN55

MR HATCHER: It's more than obiter because this is a situation where there was a challenge to jurisdiction and the challenge was upheld. So these are more than just obiter comments. These are conclusions which his Honour had no power to make. His Honour was making determinations about a contested issue and it was simply beyond power.

PN56

JUSTICE ROSS: All right.

PN57

MR HATCHER: And of course beyond that we say in any event they were, with respect, wrong.

PN58

JUSTICE ROSS: Well, if they fall into either of those categories, then what can flow from it?

PN59

MR HATCHER: Well, the tribunal has seen our submissions.

PN60

JUSTICE ROSS: Yes.

PN61

MR HATCHER: One, permission to appeal and the matters that have flowed since the decision was made. Now, in a strictly legal sense, and the respondent takes a different view about this, by the way, but in a strictly legal sense, we say, with respect, nothing flows.

PN62

JUSTICE ROSS: But the respondent concedes, as I understood their submission, that the decision does not and could not amount to a binding judicial determination. It can't, on any view of it, bind the Federal Magistrates Court.

PN63

MR HATCHER: But this is the problem. This is where they approbate and reprobate. They have filed a motion in the Federal Magistrates Court - - -

PN64

JUSTICE ROSS: But leave aside what they say. Just as a matter of law it can't bind - - -

PN65

MR HATCHER: We say that but as a result of the making of his decision and the way it occurred, we now have to face a whole range of practical consequences which we now have to deal with.

PN66

JUSTICE ROSS: We'll see what they say, but I had understood their submission to be clear, that none of his Honour's findings or conclusion, however one characterises them, in respect of the coverage of either the 2008 or the 2011 agreement, constitute binding determinations.

PN67

MR HATCHER: Well, they say that. That's not what they say in the Federal Magistrates Court, and beyond that, your Honour, one has to look at the practicality.

PN68

JUSTICE ROSS: But the answer to your question, if you're concerned about the potential for problems in the Federal Magistrates Court, well, in whatever decision we arrive at, we would simply set out - if that is the respondent's position we would simply set it out in our decision, and you can rely on that in the Magistrates Court and argue your point that they're taking inconsistent positions up there.

PN69

MR HATCHER: Yes, we - - -

PN70

JUSTICE ROSS: But leave aside - just as a matter of - is anyone seriously contending that a determination by a member in the course of dealing with an issue of jurisdiction binds a Federal Court?

PN71

MR HATCHER: Well, we - - -

PN72

JUSTICE ROSS: Is that put by you, Mr Wood?

PN73

MR WOOD: Well, that's - - -

PN74

JUSTICE ROSS: How can it?

PN75

MR WOOD: That's a very large question when expressed in that broad way.

PN76

JUSTICE ROSS: Not really. They're not in the line of appeal. How can it bind the Federal Magistrates Court or the Federal Court, a decision made here?

PN77

MR WOOD: Well, that's a very large question because the precise way in which determinations of this tribunal, if they are made in relation to exactly the same parties who are disputing in the courts, might affect the rights of those parties to agitate again the same issues, is a large question and it hasn't yet been determined. It has been worked out in a - - -

PN78

JUSTICE ROSS: You're saying there's an estoppel.

PN79

MR WOOD: There may be an estoppel.

PN80

JUSTICE ROSS: An estoppel arises in relation to judicial determination of rights.

PN81

MR WOOD: That is yet to be determined, your Honour, because in analogous cases under the predecessors to the uniform Commercial Arbitration Acts, and there has been a debate for about a century and a half about the extent to which an arbitration instead of the indication of legal rights, the extent to which the result of that arbitration might prevent you then reagitating the same issues. When I say "the same parties", the same parties reagitating their legal rights.

PN82

JUSTICE ROSS: Isn't that by force of the Commercial Arbitration Acts?

PN83

MR WOOD: It is by force of the Commercial Arbitration Acts, but also in the early stages through the development of the common law and - - -

PN84

JUSTICE ROSS: I would be interested in those cases but isn't the difficulty for your case, if you say that there is some impact that his Honour's decision in fact gives rise to an estoppel in the Magistrates Court, well, why aren't the appellants then aggrieved by that? It affects their legal rights.

PN85

MR WOOD: Because the way in which this appeal process works is that they are not aggrieved by the decision. They are merely aggrieved by the findings - - -

PN86

JUSTICE ROSS: Which you say, which on your argument, those findings will estop them from litigating a matter in the Magistrates Court.

PN87

MR WOOD: Well, they may, your Honour.

PN88

JUSTICE ROSS: Then that's a legal effect and their interests are adversely affected.

PN89

MR WOOD: Your Honour - - -

PN90

JUSTICE ROSS: I'm just struggling to see how you can have it both ways. I can understand the argument that says, "Well, look, the issue before his Honour was a narrow one. He determined that. Whatever else he said doesn't determine the question, and therefore why should either the appellants be characterised as aggrieved or why should they be given permission to appeal," but what you're saying is that in fact his Honour's observations do have legal effect and they do affect the appellant's rights.

PN91

MR WOOD: I'm saying that the reasons may have some impact upon some other proceedings that might be brought. The real authority that we rely upon, the same result pertained in that case. Lake v Lake was a case in which findings were made which were likely to have an impact upon the wife's ability to maintain to bring maintenance proceedings. Now, it's exactly analogous with that position. There may be an impact from the reasons upon the persons who are covered by this result - - -

PN92

JUSTICE ROSS: But you're not saying there may be an impact. You're saying there is - - -

PN93

MR WOOD: No, I'm not - - -

PN94

JUSTICE ROSS: - - - because that's what you're agitating in the Magistrates Court.

PN95

MR WOOD: I'm not saying there is. I'm just saying there may be because that's an argument that we were putting to the magistrate that there is an estoppel.

PN96

JUSTICE ROSS: Yes, but it's not correct to say you're saying there may be. What you're saying to the Magistrates Court is that there is. That's your submission.

PN97

MR WOOD: We are saying to the magistrate, "In relation to those reasons, after a year of proceeding here, you should not, as an exercise of your discretion, re-embark on the process that the national industrial tribunal has embarked upon for a year."

PN98

JUSTICE ROSS: And you're saying that as a matter of estoppel?

PN99

MR WOOD: We're saying that - I would have to look at our submissions in the Federal Magistrates Court, but at least as a matter of estoppel, perhaps as a matter of discretion, and we might put it more highly than that, but that doesn't elevate what are reasons to a decision. The statute says, you know, and we appealed from a decision and the decision - until you asked my learned friend, your Honour, what the decision was, in his own submission he said "paragraph 32", where he upheld the jurisdictional objection. Sorry, where the member below upheld the jurisdictional objection, and the consequence - the reason my learned friend is in this position is that he brought these arguments.

PN100

He asked the tribunal to determine whether or not the CSA is covered by the 2008 agreement, and that was resolved against him. He asked the tribunal to determine whether the 2011 agreement ousted or had the effect of making sure that the 2008 agreement ceased having effect, and that was determined in his favour after a conclusion against him in relation to the coverage of the 2008 agreement. Now, those are merely findings that my learned friend asked the Vice President to make.

PN101

JUSTICE ROSS: So really the contest between you narrows down to this: that you say that his Honour's findings as to the coverage of the 2008, 2011 agreements with respect to CSAs were a necessary part of his decision-making process to conclude that he had no jurisdiction because the 2011 agreement was coextensive with the 2008 agreement. Is that my understanding of your submission?

PN102

MR WOOD: Exactly.

PN103

JUSTICE ROSS: And the appellant's submission is - it's a degree of overlap. They accept or they say that, "Yes, the issue before his Honour was did the 2011 agreement negate the 2008 agreement." The difference between you is they say that his findings as to whether the 2008 agreement and the 2011 agreement covered CSAs, those findings were not necessary for him to make that ultimate decision.

PN104

MR WOOD: They were necessary.

PN105

JUSTICE ROSS: No, no. I know you - - -

PN106

MR WOOD: Yes, sorry. I'm sorry - - -

PN107

JUSTICE ROSS: No. I'm just trying to - because once you get to that point, do we need to spend much time on the rest, because on the face of it, the appellant's proposition - not about those issues. I think that's where, if you like, the real contest between you arises, but anything else his Honour decided or made (indistinct) about or expressed a view about, other than those matters, must necessarily be obiter if he didn't have jurisdiction.

PN108

MR WOOD: No, we wouldn't accept that.

PN109

JUSTICE ROSS: Why? If he doesn't have jurisdiction to determine the matter before him - - -

PN110

MR HATCHER: He has got jurisdiction - to determine whether he has got jurisdiction.

PN111

JUSTICE ROSS: No, but he has done that. He has done that by deciding that the 2011 agreement replaces wholly the 2008 agreement, therefore there's no dispute-settling function available to the tribunal. Once you decide that, you don't need to decide whether it's a genuine dispute or any of the rest of it, do you?

PN112

MR WOOD: Because he was asked by - - -

PN113

JUSTICE ROSS: Well, so what?

PN114

MR WOOD: Well, because he's required, as part of his function of determining - he's not allowed to - my learned friend is entitled to a decision on all the grounds that he pressed.

PN115

JUSTICE ROSS: No, he's not.

PN116

MR HATCHER: Well - - -

PN117

JUSTICE ROSS: No, you're not. You're entitled to a decision that resolves the matter that's before the bench. If, for example, we decide this in your favour on the party aggrieved, well, the appellant is not entitled to a decision about the merits, just because he has argued them.

PN118

MR WOOD: But it's no answer - migrating a little bit from the central point, we accept that my learned friend is aggrieved by the reasons for the decision. We accept that. We don't accept he is aggrieved by the decision, therefore he is not aggrieved within the meaning of the Act.

PN119

JUSTICE ROSS: No, I follow the argument, yes.

PN120

MR WOOD: Yes. Then there's the question which is really a question, I think, for another court if the Federal Magistrates Court proceeding is still pressed, they might accept - they haven't yet. They may accept, yes, I'm expressing this and I - - -

PN121

JUSTICE ROSS: Anything is possible, sure, in the spirit of goodwill.

PN122

MR WOOD: They may accept - - -

PN123

JUSTICE ROSS: Sure.

PN124

MR WOOD: - - - the resolution such as used by the national industrial tribunal, they may not, but then these arguments that we're now having will be agitated before the Federal Magistrates Court as to exactly what weight the federal magistrate chooses to give to the reasons that have led to the finding in my learned friend's favour that there was no jurisdiction to resolve this dispute.

PN125

JUSTICE ROSS: Has your client accepted his Honour's decision?

PN126

MR WOOD: Yes.

PN127

JUSTICE ROSS: Have they paid back pay?

PN128

MR WOOD: They're in the process of doing it. They have raised everyone's pay on - - -

PN129

JUSTICE ROSS: Yes, I saw that, yes.

PN130

MR WOOD: - - - 2 December, and they're in the process of calculating back pay. I can tell you in very rough terms what the amounts would be if that's of any interest.

PN131

JUSTICE ROSS: No, no, but what flows from - I know we're going a little off the - - -

PN132

MR WOOD: Off peace.

PN133

JUSTICE ROSS: Yes, and I'll be coming back on to peace in a minute, but if they were covered, then it seems uncontentious they were given no vote, no information. What flows from that?

PN134

MR WOOD: There might be some other proceeding that's issued to the effect that - - -

PN135

JUSTICE ROSS: Clarity relief about the operations of 2011.

PN136

MR WOOD: Which may or may not be successful. I mean, there are some cases which suggest that the 2011 agreement would be invaluably made and there are some others that would suggest that one has to look at all the factors, including the size of the franchise or the electorate, as it were, and whether this 1000 people would have any impact in relation to 80,000. There are cases that go both ways, but that would be a possibility. I don't think it's something that the - it would hurt the TWU to bring that, because part of the relief they seek is to a limited agreement, isn't it, I think (indistinct) based on the two of them, or just the two away. I'm sorry, that's - - -

PN137

JUSTICE ROSS: No, I'm sorry, based on the award, isn't it?

PN138

MR WOOD: No, it was before that. they may well do that.

PN139

JUSTICE ROSS: Thank you. Mr Hatcher, we want you to focus on what I've defined as the central controversy between you. We have read the rest of your submissions, but it's this issue of you both agree what the question was, what the answer was. The issue between you is whether it was necessary to ground his Honour's conclusion that the 2011 agreement had the effect of displacing the 2008 agreement, but it was necessary for that finding to find that the CSA were covered by both agreements.

PN140

MR HATCHER: It's a fairly simple proposition.

PN141

JUSTICE ROSS: That's why I thought we'd try and confine it to that.

PN142
PN1MR HATCHER: It's a very simple answer. That is, the only thing that we needed to demonstrate to his Honour was that the 2008 agreement no longer had effect. So we had a dispute notification under the dispute settlement procedure of that agreement. The arbitration was sought on the basis that parties to that agreement were bound by dispute settlement procedure, and we said that agreement is no longer in effect, so there can no longer be binding arbitration that is binding upon anybody under that agreement.
PN143

Now, all you needed to do to resolve that question was to determine whether the 2008 agreement had any ongoing effect. The answer was, with respect, obvious, that is, by reference to the 2011 agreement itself which said in terms it entirely replaced the 2008 agreement, by comparison with the coverage clauses and the classification clauses which his Honour did, you could see the coverage of the 2011 agreement was at least as wide or virtually identical to the 2008 agreement, that is, there was no visible distinction to be drawn, and therefore one readily comes to the conclusion about deciding anything about who was in and who was out. The 2000 agreement no longer had effect by reference to the transitional provisions that have been referred to in the decision.

PN144

JUSTICE ROSS: And that's so because of the Fair Work (Transitional Provisions and Consequential Amendments) Act.

PN145

MR HATCHER: Yes. I think we wrongly refer to it as schedule 1 in our submissions. Schedule 3, I think it was item 30, sub-item (2).

PN146

JUSTICE ROSS: and I don't think there's anything between you about the legislative power upon which the determination arose and so it was the fact that the 2008 agreement gave rise to a collective agreement based transitional instrument. Is that right?

PN147

MR HATCHER: Yes.

PN148

JUSTICE ROSS: So that's how one characterises the 2008 agreement. I don't think there's any dispute from the respondent about that, and it ceases to cover the employees who are covered by an enterprise agreement under the Fair Work Act.

PN149

MR HATCHER: Yes.

PN150

JUSTICE ROSS: Okay, I follow now. All right, thank you. Is there anything else you want to say by way of reply to - - -

PN151

MR HATCHER: I wanted to say (indistinct) permission to appeal. First of all, what my learned friend has just said, it illustrates the very reasons why permission to appeal should be granted and the relief that we seek should be ordered. That is, by reason of this decision they say on the one hand when it comes to standing permission to appeal, that has no legal effect apart from the narrow and fine jurisdiction, but one can readily see that as a practical result of the decision it's not a legal decision. My clients have been drawn into a legal morass which has effectively changed the practical position in which the parties found themselves.

PN152

Now, until this decision, every party that was conducting themselves on the basis of the 2011 agreement have no application to CSA as nobody said to his Honour below that the 2011 agreement applies to CSAs and the parties were conducting themselves on the basis that they were going to negotiate a separate enterprise agreement to cover CSAs and all the parties wanted that to happen, the parties had been negotiating but had been frustrated by the issue about the relevant award for the BOOT test. We were never put on notice by any party or his Honour that there was a possibility of a finding the 2011 agreement would apply to CSAs.

PN153

JUSTICE ROSS: I understood Mr Wood to be saying that that was what you had asked for.

PN154

MR HATCHER: Well, can I draw the tribunal's attention to volume 1 page 201, of the appeal book.

PN155

JUSTICE ROSS: Just bear with us for a moment.

PN156

MR HATCHER: It's part of the transcript which - - -

PN157

JUSTICE ROSS: Volume 1 page?

PN158

MR HATCHER: Page 201.

PN159

JUSTICE ROSS: Is it tab 3 or four?

PN160

MR HATCHER: It's tab 4.

PN161

JUSTICE ROSS: I'm sorry, what was the paragraph number, Mr Hatcher?

PN162

MR HATCHER: The paragraph number - it's page 201, paragraph numbers 1837 to 1838.

PN163

JUSTICE ROSS: Just bear with me a moment. Okay.

PN164

MR HATCHER: So I don't know how we could have put it clearer than that, and notwithstanding that that was our case on that particular point, we ended up with a finding which nobody contended for that the 2011 agreement applied to CSAs, with all the consequences that would follow under the statute for the capacity - for the parties to enterprise bargain for CSAs. You've heard from Mr Wood. Notwithstanding what he says about the nature of this decision, Coles is now conducting itself on the basis of a finding which nobody asked for, and about which we were never heard, and now we face the consequence that this has all sorts of consequences for whether you can reach an enterprise agreement which has effect prior to the expiry of the current Coles agreement, whether we can get a protected action ballot - - -

PN165

JUSTICE ROSS: Yes.

PN166

MR HATCHER: - - - because there's a - maybe a current enterprise agreement in effect, and it also raises issues about the validity of the 2011 agreement itself, not only because CSAs were never given the opportunity to approve it, but also presumably because they were never given the appropriate notice of their representational rights which recent full bench - at least one full bench decision says goes to validity.

PN167

SENIOR DEPUTY PRESIDENT O'CALLAGHAN: Mr Hatcher, if you went a bit further than that, the debate following that in the paragraph beginning at 1839 continues for some time. To what extent does that indicate a broader issue that was put before his Honour below?

PN168

MR HATCHER: I didn't hear that last part.

PN169

SENIOR DEPUTY PRESIDENT O'CALLAGHAN: To what extent does that indicate that a broader issue was before his Honour below?

PN170

MR HATCHER: It doesn't, with respect. I mean in our written submissions we have identified in the written submissions made by Coles and by the SDA where they clearly said the 2011 agreement doesn't apply to CSAs. Now, if his Honour was going to reach a contrary view, he had an obligation, with respect, to squarely put to us, "I'm considering finding, notwithstanding what the parties put, that the 2011 agreement applies to CSAs." I mean your Honour is right in pointing out there's some fairly elliptical, with respect, question, just at the bottom of that page and that's where it ends, but we weren't given the opportunity to squarely address that issue.

PN171

SENIOR DEPUTY PRESIDENT O'CALLAGHAN: But, you see, if the issue is as simple as you put it, I'm struggling with why the parties went through all the effort and heartache associated with a case of this duration involving that number of witnesses who traversed in some detail the functions undertaken by the CSAs.

PN172

MR HATCHER: Because that went to the coverage of the 2008 agreement. You see Coles' case was this - the lawyers might find this somewhat unusual, but they notified a dispute under the 2008 agreement, not the 2011 agreement, and that was on the basis they said the 2008 agreement applies to these people, but the 2011 agreement does not. That's what their case was. So they came in and said, "Well, the 2011 agreement doesn't apply, so the 2008 agreement does," and one of our objections was, well, the 2008 agreement doesn't apply, and one of the reasons why we said it didn't apply was because it was in the same terms as the 2011 agreement.

PN173

But no-one said that the 2011 agreement applied to CSAs and Coles' case was to the contrary. If Coles had said the 2011 agreement applied, that would have destroyed their case on jurisdictional grounds because again it would have meant that there was no basis for notifying the 2008 agreement. So his Honour having made that finding which, with respect, nobody asked for and we weren't put on notice about, we are stuck, with respect, with the practical consequences, and if this matter is not dealt with in respect of this appeal, it will be dealt with again and again in future proceedings.

PN174

We've already heard possibilities of declarations to courts about the validity of the 2011 agreement, and we've got a claim for an estoppel before the Federal Magistrates Court. We'll have this argument again if we proceed to a protected action ballot. It, with respect, just goes on and on. So we've been drawn in this practical and legal morass as a result, with respect, of his Honour making findings which we say were wrong, which he had no need to make, and which were beyond jurisdiction.

PN175

Can I just deal with this issue of what constitutes the decision for the purpose of permission to appeal? Firstly can we point out it's in our bundle in Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 at page 335 in the judgment of Mason CJ. I won't read it, but he identified that the word "decision" is capable of bearing shades of meaning depending upon the context, and in that case the court went on to consider within a different statutory context. At Bond at 338 Mason CJ - this is the second point - pointed out that even if you take a narrow view of what constitutes a decision, it does not exclude a review of the reasons for the decision.

PN176

The third point is if you look at section 598 subsection (1), there's a reference to how - to the meaning of "decisions", although it's not an actual definition, and refers to a decision however described, and the only exclusion that is specifically identified is by reference to recommendations and expressions of opinion under section 598 subsection (2), and it includes procedural decisions, and for that purpose in our bundle we have included the explanatory memorandum in paragraph 2301. It identifies that the parliament intended to include procedural decisions, so it's a word of broad import.

PN177

Fourth, we point out that there was no actual order made in this case because his Honour didn't make an order dismissing Coles' application. So what constitutes the decision has to be gleaned from the published document issued by his Honour. We say what's in paragraph 40, that is the conclusions on what constitutes, as far as his Honour was concerned, the decision, and that's squarely what we appeal against.

PN178

Finally, we would say that even if "decision" is to be approached in the narrow way suggested by Coles, it doesn't mean that you can't be a party aggrieved, even if you're not affected by the actual outcome of the proceedings, and we have put in our bundle - again I won't read them - two examples of that. One is Re Australian Industry Group. The citation is [2010] FWAFB 4337, and the second is J.J. Richards and Sons v TWU. This is the second full bench decision in the J.J. Richards matter, [2011] FWAFB 3377. In the first decision it's paragraphs 9 to 13. In the second decision it's paragraph 9. In both those cases, based on the reasoning that derives from the Tweed Valley Fruit Processors case, 137 ARL 70 - - -

PN179

JUSTICE ROSS: I remember it.

PN180

MR HATCHER: I think your Honour is referred to in the title of the decision. Entities which were not bound by the orders actually made were assessed to be persons aggrieved.

PN181

SENIOR DEPUTY PRESIDENT O'CALLAGHAN: I'm sorry, can we just go back to - - -

PN182

MR HATCHER: Yes.

PN183

SENIOR DEPUTY PRESIDENT O'CALLAGHAN: Before we started referring to the AI Group case, what proposition were you saying was derived from those authorities?

PN184

MR HATCHER: That is - - -

PN185

SENIOR DEPUTY PRESIDENT O'CALLAGHAN: I think I - that doesn't mean you can't be a party aggrieved - - -

PN186

MR HATCHER: It can be a party aggrieved - - -

PN187

SENIOR DEPUTY PRESIDENT O'CALLAGHAN: Yes.

PN188

MR HATCHER: - - - on the basis of the reasoning used to reach the outcome, even if the outcome has no legal effect upon you whatsoever. So the J.J. Richards case is a classic example of that. Apart from the employer itself, there was an appeal in that case from the Australian Mines and Metals Association. Now, obviously in that case there had been a grant of a protected action ballot order. That of course had no effect upon the AMMA, that is it wasn't the relevant employing entity, it didn't represent the employer. It was aggrieved by the statutory construction of the relevant provision of the Act by which the decision of the appeal reached the conclusion that a protected action ballot order should be granted.

PN189

In that case, consistent with the AIG case and consistent with the Tweed Valley case, the full bench said, "That's sufficient to make you a person aggrieved. That is, you 're upset about the statutory construction adopted in the reasons for decision." So, with respect, this is no different from that because even if you take a narrow view of the decision, and even if the decision narrowly defined doesn't affect you, you can be aggrieved by reference to the reasoning approach which led to the decision. So for those reasons we say the notion that we're not a party aggrieved should be rejected.

PN190

Can we remind - again I think this is ignored in the Coles' submissions, that there are three appellants: the Transport Workers Union itself, but also one current and one former employee of Coles whose actual pay entitlements are now affected by the decision. So, for example, if you have an employee who had previously before this decision thought he was able to be the subject of an enterprise agreement being negotiated, his rights have now been directly affected by this decision and he is being treated as if he's under the 2011 agreement. So for those reasons we would say that we are - the appellants are not parties but persons aggrieved, so permission to appeal should be granted, and the issues should be dealt with.

PN191

Finally, can we say that, perhaps by way of repetition that, with respect, a practical approach needs to be taken to the disposition of this appeal. It may be that the full bench might simply say that the decision can be narrowly defined as the particular sentence I took the full bench to, and the rest of it is simply obiter dicta which has no legal effect upon anybody. But we have identified what the real consequences of this decision are. We will still whatever - even if the full bench was to say something like that, we will still have to face a strike-out motion in the Federal Magistrates Court that will cause us to incur delay and costs.

PN192

We will have to argue about this decision again, and in the context of the rights of the parties in this jurisdiction, particularly with respect to future enterprise bargaining, unless this issue is put to bed in a practical sense, we will be back here again before, with respect, some member of the tribunal arguing about all of this again. I think we took about 15 to 20 pages of our submissions trying to outline the procedural history of this matter. Might not describe it as regrettable, but it's certainly not a very practical way of resolving disputes, but that's the position that has occurred. But we don't want this to go on indefinitely and to keep having to come back here arguing before varying members of the tribunal whether the 2008 agreement or the 2011 agreement applies to these CSAs or not. We think the appropriate course should be that - - -

PN193

SENIOR DEPUTY PRESIDENT O'CALLAGHAN: But presumably you won't be back here arguing about the 2008 agreement.

PN194

MR HATCHER: We could well be because, well, it arises from the same proposition. If we come here for, for example, a protected action ballot order - - -

PN195

SENIOR DEPUTY PRESIDENT O'CALLAGHAN: Yes.

PN196

MR HATCHER: - - - there will be an issue about the scope of the 2011 agreement which will inevitably drag in the scope of the 2008 agreement because Coles say you can't decide one without deciding the other. So these issues are not going to go away. We think the appropriate course - - -

PN197

SENIOR DEPUTY PRESIDENT O'CALLAGHAN: Definitely been left with that impression.

PN198

MR HATCHER: We would like to think there's a short cut to resolving these issues, but we observe in our submissions Coles had filed I think it's a section 204 notification, but then had not sought to do anything with it. We would have thought that was the way to resolve the real issue between the parties, but be that as it may, the proceedings have reached the position they are. We say the practical course here is for the full bench to confirm that his Honour the Vice President had no jurisdiction to arbitrate under the 2008 agreement by reference to the fact that it no longer had legal effect, and otherwise simply would quash his Honour's decision, and that correctly reflects the legal position as to his Honour's jurisdiction. It disposes of findings which were made beyond jurisdiction which we say were wrong, but in any event unnecessary to the matter to be decided, and restores the parties to the legal and practical position they were in before his Honour issued this decision. If it please the court.

PN199

JUSTICE ROSS: Thanks, Mr Hatcher. Anything you want to add, Mr Wood?

PN200

MR WOOD: Your Honour, I think I should have perhaps asked you a question about whether it was necessary to make those findings a bit more subtly than I did. The question for the disposition of this appeal is not whether it was necessary to make those findings or not. It is, I would have to accept, possible that the decision alone could be disposed of, on some assumptions I imagine that the TWU would not have been prepared to accede to.

PN201

When one comes to the actual decision with regard to the Senior Deputy President's question, when one looks at paragraph 3 of the decision, and this is the reason the case went for so long - I'll come to some other reasons in a moment - the reason the case went for so long is that the TWU asked the tribunal to determine jurisdictional questions 1, 2, 3, 4, and the Vice President answered those questions unfavourable to the TWU in relation to 1, unfavourable in relation to the TWU in relation to 2, favourably in relation to the TWU in relation to 3, and not necessary to decide in relation to 4.

PN202

That's why, before you ask a question - and, your Honour, where one finds the decision in their submissions on appeal, they said the decision is found in paragraph 32. When you asked orally this morning, my learned friend backed away from that and said it's paragraph 40, that's where the decision is. "I dismiss", "I find", "I uphold the third of the TWU's jurisdictional objections."

PN203

JUSTICE ROSS: Yes.

PN204

MR WOOD: In getting to paragraph 32, what he did was consider objection 1, objection 2 and objection 3. It is possible that he could have, in a more truncated fashion, upheld simply jurisdictional objection 3. But that doesn't make it an error to have considered jurisdictional objections 1 and 2 and 3. This is the way they were provided in the submissions to the TWU. They said, "We want you to consider 1, 2, 3, 4." He considers them in his decision, works through them, gets to 3, finds there's no jurisdiction and doesn't go any further. It's not an appeal ground to say to a single member, "Well, perhaps you could have gone 3, 2, 1. Perhaps you could have dealt with 3 first." It's quite legitimate for a decision-maker below to deal with the arguments as put, and to make his findings, and then get to the point where he says, "I don't need to consider any further arguments. Here's my decision, and the reasons."

PN205

JUSTICE ROSS: That's not what he does. I accept what you say about 1, 2 and 3, that that's the sequence that he's taken. But you get to 32 and he says, "Well, I don't have jurisdiction." But he goes further. I'm not suggesting this is an appeal ground, but I'm just correcting - you said that there's nothing wrong with a process where you analyse 1, 2 and 3, and you say, "Well, no jurisdiction, I'm not going to go any further." But then he does.

PN206

MR WOOD: In relation to ground 4.

PN207

JUSTICE ROSS: Yes.

PN208

MR WOOD: That may well be obiter. It may have been something that (indistinct)

PN209

JUSTICE ROSS: I don't think there's any doubt it's obiter. He says in his - - -

PN210

MR WOOD: Yes. That's not really going to be an issue any further.

PN211

JUSTICE ROSS: No, I agree. That was part of my point to the TWU: in relation to the genuine dispute point, he is expressing an opinion, but it's not a decision, it's an obiter observation.

PN212

MR WOOD: I can't see that we would be wishing - I don't think that anyone in this appeal has raised any issue with paragraphs 33 and 39. The attack is really made on the findings or reasons that are found at paragraphs 1 to 32, or more correctly, to support the conclusion at paragraph 32.

PN213

JUSTICE ROSS: Yes.

PN214

MR WOOD: There's nothing wrong with what the Vice President did. I need to take the tribunal to the actual clause. If one looks at item 30 clause 2 in schedule 3, that is, the relevant part of the transitional provisions - - -

PN215

JUSTICE ROSS: Yes.

PN216

MR WOOD: - - - what it says is, "If an enterprise agreement" - relevantly, the 2011 agreement - "starts to apply to an employee". Now, when the Vice President came and considered that question - this is the third jurisdictional argument - it already made a finding he had been asked (indistinct) as to whether or not the 2008 agreement applied to any of the class of employees who are subject to the dispute. So when one comes to that question, a proper decision posits an employee, and there are examples of the employee, and you make a finding that that clause relevantly - the store team member classification in the 2011 agreement applies to that employee, or to the two employees, or 10, or 771. Doesn't matter which.

PN217

But that's the process of reasoning you have to go through. You have to look at the clause, look at the duties of that employee, and say, "Does the 2011 agreement apply to that employee, or to 10, or 700 of them?" Then you go on to say, "Then a collective agreement based transitional instrument ceases to cover the employee." That is, you have to make that finding about coverage of the 2011 agreement in relation to that employee for that clause to operate, so to actually have a valid finding that would enable you to reach the conclusion that you have. Otherwise you haven't done it in accordance with law, you haven't looked at the employees, looked at their duties, made an assessment as to whether the clause applied. That's what he did. The only problem with what he did for the TWU is that they don't like the conclusion. That's all. They don't like - - -

PN218

JUSTICE ROSS: No, they like the conclusion. They don't like the (indistinct)

PN219

MR WOOD: (indistinct) I beg your pardon. They don't like the conclusion of the reasoning on that factual finding on the way to the ultimate decision. We've written full submissions about it. That issue was in play, and it was determined factually against the TWU, but ultimately they got what they wanted, and what they wanted for a year. They did not want the national industrial tribunal to deal with this dispute. They've tried everything they can, not turning up, appealing to a full bench for a directions hearing, insisting that jurisdictional arguments be run before the merits, and they've achieved what they've wanted after a year, and now they've got the gall to come here and complain that the legal controversy is going to go on. All of their own doing. But I'm really answering - your question initially to my learned friend was, "Was it necessary to make the findings?"

PN220

JUSTICE ROSS: Yes. No, I follow what you're - - -

PN221

MR WOOD: Yes. Unless there's anything further you want me to address on.

PN222

JUSTICE ROSS: Thanks, Mr Wood. Anything arising?

PN223

MR HATCHER: Just a few matters, if it please the tribunal. The first is that if my learned friend is right, that it was necessary for his Honour to make findings about the scope of the 2008 and 2011 agreements in order to find that there was no jurisdiction, then that must form part of the decision that his Honour made and must be (indistinct) the second point I want to make is to identify by reference to the way his Honour went about the decision-making process (indistinct) of what happened.

PN224

If I can just ask the tribunal to open up volume 1 of the appeal book at para 1, page 1. At appeal book page 3 - this is called Amended Dispute Application - page 3, paragraph 4, in answer to, "What is the dispute about," what's in paragraphs 1 to 3 was the subject matter of the dispute as originally notified, and that is, what was the base rate of pay applicable by reference to the two competing modern awards for the purpose of the transitional provisions as to the base rate of pay. Now, we've said this in our submissions: as the evidence turned out, there wasn't and never could have been a dispute about that, because the base rate of pay was higher than the relevant classification rate in the awards in any event.

PN225

So what Coles did during the course of proceedings was amend the dispute application to add paragraph 4. This is whether the employees the subject of the dispute are properly classified as service assistants under clause 4.1.10 of the 2008 agreement, such that that would entitle them to the rates of pay provided for in the agreement. So that then became the sole question which Coles sought to have arbitrated under the dispute settlement procedure of the 2008 agreement. It was in that context that we said, "Well, there's no jurisdiction to arbitrate about this, for a range of reasons."

PN226

Now, his Honour, without going to the issue of what constitutes the decision yet again, found that there was no jurisdiction to arbitrate. But in the way he went about the decision-making process, he actually arbitrated the issue which was identified as the subject of the dispute. So we're stuck with this result that he finds that there's no jurisdiction to do anything, but then does it anyway, even though he found that there was no jurisdiction. The fact that he did it in a certain order, with respect, doesn't say it's a position that he had no jurisdiction to do things - that is, to arbitrate the matters that were identified in the application - if on any basis there was no jurisdiction. Finally, can I answer the last rhetorical flourish from Coles criticising us. We might say that we have, your Honour - - -

PN227

JUSTICE ROSS: I don't think much is going to turn on - - -

PN228

MR HATCHER: (indistinct) all we say is, we have consistently said, since these things were notified, that they're beyond jurisdiction. Coles persisted with it over a period of - it's now nine months, I think - and we're arguing about it.

PN229

JUSTICE ROSS: Well, look, they're entitled to do that, you're entitled to raise points of jurisdiction, and I don't think the case will turn on past behaviour of either party. All right. Anything further?

PN230

MR HATCHER: No.

PN231

JUSTICE ROSS: We'll reserve our decision and adjourn.

<ADJOURNED INDEFINITELY [10.07AM]