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TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009
1051504
SENIOR DEPUTY PRESIDENT DRAKE
DEPUTY PRESIDENT ASBURY
COMMISSIONER BOOTH
C2015/1621
C2015/1623
s.604 - Appeal of decisions
Construction, Forestry, Mining
and Energy Union v CSR Limited
(C2015/1621)
Construction, Forestry, Mining
and Energy Union v CSR Limited
(C2015/1623)
Brisbane
10.43 AM, WEDNESDAY, 4 MARCH 2015
PN1
SENIOR DEPUTY PRESIDENT DRAKE: Good morning. Could I have your appearances?
PN2
MR WHITE: Yes, I seek permission to appear for the appellants in both matters, if the Commission pleases.
PN3
SENIOR DEPUTY PRESIDENT DRAKE: I think permission has already been granted for counsel to appear in both matters, thank you.
PN4
MR MURDOCH: May it please the Commission, my name is Murdoch, initials C J. I appear on behalf of the respondent in both matters.
PN5
SENIOR DEPUTY PRESIDENT DRAKE: Thank you. Mr White.
PN6
MR WHITE: If the Commission pleases: there are two appeals and they raise, subject to some particular factual matters in relation to the Cairns agreement, identical matters and so we propose that they be dealt with as one, if that is suitable to the Commission.
PN7
SENIOR DEPUTY PRESIDENT DRAKE: Yes.
PN8
MR WHITE: Can I first address one matter about which the respondents made some comment, and that is our standing to bring these appeals. The CFMEU is a registered organisation and it has coverage under its rules to cover those workers who would otherwise be covered by the two agreements. In order for us to have standing to appeal, we need to be a person aggrieved within the meaning of the Act. We contend we are a person aggrieved and we do so for the following reasons but can I predicate what I’m about to say by this general observation, and that is that a person aggrieved, we say, is not synonymous with a person who might otherwise have a right to be heard at first instance.
PN9
Tweed Valley Fruit Processers - can I hand to the Commission copies of two cases? One is Tweed Valley Fruit Processers Pty Ltd [1996] 65 Industrial Reports 393 and Australia Institute of Marine and Power Engineers v Secretary of Department of Transport [1986] 13 Federal Court Reports 124. Can I go first to Tweed Valley? Interestingly, albeit under a different legislative regime, this was a case that grew out of the approval of agreements and the right of the metal workers’ AMWU to appear.
PN10
But at page 414 of that decision the joint judgement of Wilcox CJ and Marshall J consider the concept of a person aggrieved. The substantive discussion of a person aggrieved commences or is largely contained on page 415. There are a number of points we wish to make about that, first of all:
PN11
If a person has a grievance beyond that of an ordinary member of the public they may well be a person aggrieved.
PN12
That appears at about point five, page 415. Secondly:
PN13
If a person by reason of the decision is affected in the conduct of his business or affecting his rights against third parties may - - -
PN14
(Technical malfunction)
PN15
SENIOR DEPUTY PRESIDENT DRAKE: Do you know where it stopped recording? Do you want to start again?
PN16
MR WHITE: I’ll start again but perhaps I’ll do it in short form on the second time around. The first case in terms of person aggrieved that I took the Commission to was Tweed Valley Food Processers v Ross decision, Industrial Relations Court, 65 Industrial Reports, 393, joint judgement of Wilcox CJ and Marshall J, commencing at page 414 of that decision from which a number of propositions can be derived. Those propositions include that it’s not necessary in order for a person to be aggrieved for the purposes of standing to appeal that their actual legal rights are affected.
PN17
What needs to be shown is that they have an interest beyond the interest of an ordinary member of the public. It is in the context of this appellant, relevant to look at the second decision I handed to the Commission, Australian Institute of Marine and Power Engineers v Secretary Department of Transport decision of Gummow J when he was on the Federal Court, [1986] 13 Federal Court Reports 124. The relevant part of that decision commences at page 130. Gummow J looks at authorities from a range of difficult legal contexts. At page 131 he notes:
PN18
The person aggrieved lacks novelty.
PN19
At about point eight on page 131 he says:
PN20
Whilst mere interest in a problem will not suffice, injury to legal rights is not essential.
PN21
He cites Australian Conversation Foundation v the Commonwealth to support that proposition:
PN22
Unremarkably, the earlier proposition is that it is informed by the scope and purpose of the statute.
PN23
At the top of page 132:
PN24
The grievance doesn’t necessarily involve injury to property or present legal interests.
PN25
Over the page on 133 he considered the matters which in the circumstances of that case made it - led him to hold that the AIMPE was a person aggrieved for the purposes of that proceeding, and that included that AIMPE was a union which had as part of its remit the protection of or the maintenance of reasonable conditions of employment of its members, negotiations of awards and agreements with employers. That appears at about point four on page 133.
PN26
Now, in this case we’d say that it’s not in contest but that the CFMEU has coverage for persons who would be covered by this agreement. The rules of the CFMEU are documents of the Commission and include objects to protect and to further the employment conditions of its members and in the statutory context that we’re dealing with here the CFMEU in respect of employees covered by this agreement and covered in this particular industry is the default bargaining representative and as such potentially has significant roles in the actual bargaining of agreements.
PN27
It’s also, as we understand, cannot be in contest but that terms of conditions of employees and the coverage of the union has a broader and more significant impact merely than the terms of employees of that employer. It’s an old industrial concept going back to Burwood Cinemas, when the High Court held that the unions could generate an industrial dispute, even though the employers with whom the dispute was generated didn’t employ any union members.
PN28
So we say that consistent with Tweed Valley v AIMPE and the scheme and scope, objects of the Act and the scheme and the objects of the union we are a person aggrieved. What is put against us is the decision of the Full Bench in Collinsville and what we haven’t done is provide a bundle of authorities of the cases referred to in the respondent’s submissions but I understand my learned friends have done that. So if they could - - -
PN29
MR MURDOCH: I can provide those copies now, may it please the Commission.
PN30
MR WHITE: What is put against us, relying on the decision of the Full Bench in Collinsville, is that we don’t have a sufficient interest of the type described by the Full Bench in Collinsville. In that case as described in paragraph 53 the CFMEU had submitted that its rights, interests and legitimate expectations or potentially affected by the approval of the agreement and hence it asserted it had a right to appear at the hearing of the approval of the agreement.
PN31
Could I make a couple of observations first? That case dealt with the right to appear and to be heard at the time agreements were approved; conceptually and legally different, we say, from being a person aggrieved on appeal. The second observation we make is this, that the reasoning of the Full Bench, which upheld the reasoning at first instance, really limited itself to the existence of rights or interests which might otherwise give rise to a legitimate expectation of a right to appear under the Annetts v McCann-type principles. Annetts v McCann is referred to in the decision.
PN32
The Full Bench in paragraph 55 and following set out a number of reasons, all of which went to whether or not the CFMEU had a legitimate right or interest which provided it with a right to be heard on the application for the approval of the agreement. The Full Bench went through a number of decisions or considered a number of decisions, all of which, in my submission, could be characterised as looking at whether by reason of the process of natural justice or procedural fairness in the hearing or there’s a right to be heard.
PN33
It did not consider the matter before the Commission now, that is whether or not a person aggrieved - we are a person aggrieved. You’ll see from the decision in Collinsville that the Commission limited its consideration to the first instance, right to be heard. It did not consider at all the decisions of Tweed Valley, which really have informed this Commission’s jurisdiction about person aggrieved in all the cases which supported the decision in Tweed Valley, like the Australian Institute of Marine and Power Engineers.
PN34
So if the Commission please, it’s a long way of going about saying that we submit that we’re a person aggrieved. A person aggrieved is not synonymous with whether or not we have a legitimate right to appear at first instance. They’re a different test in different legal contexts. Now, our interest is that beyond that of a normal member of the public. Our interests extend to the way in which we - in a commercial description - conduct our business; that is the business of looking after the terms and conditions of employment of members and how we are engaged in negotiation of agreements and what might be appropriate in all of those circumstances.
PN35
The second matter which is put against us - I don’t normally like to go in order of the respondent’s submissions but it’s a matter we have to deal with in any event and that is whether or not there is sufficient public interest such that leave to appeal should be granted. GlaxoSmithKline is the case most commonly or currently cited to set out the test whether leave to appeal should be granted. Can I ask the Commission - in my submission it would be more convenient to deal with that question rolled up in the substance of the appeals themselves, rather than have two separate - - -
PN36
SENIOR DEPUTY PRESIDENT DRAKE: Yes, the Bench is happy for you to proceed as if they were together; the issues heard together.
PN37
MR WHITE: If the Commission please. So can I then come to the two appeals? Underpinning, I suppose, the submissions of the appellant is that there are such inconsistencies, ambiguities or uncertainties in the agreements which have been approved - - -
SENIOR DEPUTY PRESIDENT DRAKE: Mr White, if I just might tell you that I’ll mark the submissions in the Townsville Sail Centre agreement as CFMEU1 and the submissions in the Cairns Agreement CFMEU2.
EXHIBIT #CFMEU1 SUBMISSIONS IN TOWNSVILLE SAIL CENTRE AGREEMENT
EXHIBIT #CFMEU2 SUBMISSIONS IN CAIRNS AGREEMENT
PN39
MR WHITE: If the Commission please.
PN40
SENIOR DEPUTY PRESIDENT DRAKE: Thank you.
PN41
MR WHITE: If the Commission please, I don’t intend to read those submissions. They were filed and we assumed that the Commission has read them but we just really want to make some additional oral observations. The Commission will have seen that fundamental to the proposition of the CFMEU is that the inherent lack of objectivity in internal inconsistencies, ambiguities and uncertainties of the agreement mean that there could not have been a satisfaction either of the matters about which the Commission needed to be satisfied, nor about the jurisdictional facts about pre-approval conditions. We say that operates in three ways: first we say that there’s an uncertainty in the - or regarding the identification of a document which we say either expressly or by necessary implication is incorporated into the agreement; that is by clause 7 of the agreement the Commission - and this is the same clause in both agreements so either one in appeal regarding the Cairns agreement, which is C2015/1621. The agreement is under tab 2, behind a decision of the Senior Deputy President.
PN42
In clause 7 of that agreement the Commission will see it does a number of things but for current purposes it purports to describe the building code as meaning:
PN43
The Building and Construction Industry (fair and lawful building sites) Code 2014 Commonwealth as veritably posed from time to time.
PN44
We say that there is an inherent uncertainty about the identification of that document in its terms. Can I hand to the Commission now a document which is titled, “The Building and Construction Industry (fair and lawful building sites) Code 2014.” Now, this is an advance release so you’re going to get used to it early but there’s a few observations about it. First of all, it has no legal force and effect. It’s not a document with any effect. It has not been laid before parliament. The Act under which it is supposed to be made - the Building and Construction Industry (Improving Productivity) Act - has not yet been passed.
PN45
It’s not a bill that’s been passed by the parliament. The code, in draft form and in advanced release form, is said to be made under that Act. It’s an Act which hasn’t been made - at the most, this is a draft expectation or anticipated - express future intention on the part of the government about what it wants to do. But it has no legal effect. It is not in any legal form. It is a draft and the legislation under which it is promulgated doesn’t exist.
PN46
So when one goes to clause 7 of the agreement and reads the code there has some effect then with all due respect, our contention is that there is such inherent uncertainty about the identification of the document, which in any event can be susceptible of change at any time such as to render the agreement ambiguous and uncertain. Secondly we say there is uncertainty in the terms of clause 7. One of the things that clause 7 does is this: it expresses that the agreement is intent to satisfy the building code and a number of other codes and guidelines that it refers to. That appears in about the fifth subparagraph of clause 7. What, “satisfy the building code,” means is unclear. We’ll come to this in more detail later but one of the uncertainties or the consequences of the uncertainties about what that word means has impacts on how it might be enforced, how it might be explained and what impact or effect it might have.
PN47
The third fundamental way in which the agreement, particularly by clause 7, is ambiguous or uncertain is when one looks at the relationship between clause 7 of the agreement and clause 11A of the draft advance release building code. Clause 11A, which is on page 14 of that draft, provides that, “A code-covered entity” - assume that’s the respondents in these cases:
PN48
Must not be covered by an agreement in respect of building work which includes clauses that (a) purport to remedy or render ineffective clauses in an enterprise agreement that are inconsistent with section 11.
PN49
Section 11 contains a number of matters, including under subclause 11(3) a variety of matters so for subclause 11(3)(b) there are prohibitions on clauses in enterprise agreements being prohibited:
PN50
If they restrict the employment or engagement or persons by reference to the type of contractual arrangement that is or may be offered by the employer.
PN51
Bearing in mind in this case that the award supposedly by the first part of clause 7 is incorporated into the agreement. The modern award - I’ll just hand up copies of the modern award which is said to underpin, if I can hand that to the Commission? The Joinery and Building Trades Award 2010 - - -
SENIOR DEPUTY PRESIDENT DRAKE: I’ve marked the code as CFMEU3.
EXHIBIT #CFMEU3 BUILDING AND CONSTRUCTION INDUSTRY (FAIR AND LAWFUL BUILDING SITES) CODE 2014 ADVANCE RELEASE
PN53
MR WHITE: So the Carpentry and Building Trades award, whatever the argument might be later as to whether or not the codes are incorporated there is no argument but that in the terms of the agreement the award is incorporated. Clause 7 says:
PN54
This agreement incorporated the terms of the Joinery and Building Trades award 2010.
PN55
So clause 12.7 of that award provides for casual conversion to full-time or part-time employment in certain circumstances. That is there is provision in respect of the employment or engagement of persons by reference to the type of contractual arrangement that is or may be offered by the employer under subclause 11(3)(b) of the draft code. Subclause 11(3)(d) deals - - -
PN56
SENIOR DEPUTY PRESIDENT DRAKE: Sorry, did you say 11?
PN57
MR WHITE: Yes. So clause 11A of the draft code says that you're not allowed to have:
PN58
Must not be covered by an agreement which has certain characteristics.
PN59
The, “certain characteristics,” refer back to clause 11. The award is incorporated into the agreement, so when you look at the award we’re looking at whether or not the agreement, by virtue of the award clauses, has these particular characteristics and we say it does in a number of respects, including the restriction on the employment or engagement of persons of a particular type. We say that flows from clause 12.7 of the award, which has the casual conversion provisions.
PN60
SENIOR DEPUTY PRESIDENT DRAKE: Wasn’t 12.7 excluded?
PN61
MR WHITE: That comes back to a great circularity, if the Commission please, and that underlines a significant part. The circularity arises in this way: if clause 7 applies - clause 7 of the agreement in its entirety applies - and the award is called up subject to the exceptions, then the exceptions - that is the code exceptions, supposedly, under that clause your Honour has gone to - whilst in some terms are uncertain but the uncertainty as to whether other parts of the award satisfy the code are unidentified. So there is an inherent circularity. There is an inherent circularity when you consider whether or not if clause 7 applies, if the code is called up there are exceptions within the code which may or may not apply. There are some identified. There are other exceptions within - sorry. The uncertainty arises as to whether or not the agreement, including the award, satisfies the code.
PN62
So dispute resolution, consultation, casual conversion are obvious matters where the code is at odds with the agreement. But there are in my submission unclear provisions as to whether or not other parts of the award satisfy the agreement. If clause 7 does not apply because of clause 11A of the code, the award is not called up. We’ll come to that at a later time in respect of the BOOT test. The existence of inconsistencies and uncertainties, we say, has a number of consequences. First of all it has a consequence on the capacity of the employer to comply with the pre-approval steps of explaining to the employees to be covered by the agreement the terms of the agreement.
PN63
The obligation to do so arises under section 180(5)(a) and (b). It requires that the employer must take all reasonable steps to insure that the terms of the agreement and the effects of the terms are explained and that the explanation is in an appropriate manner. Now, given the complexity about the inter-relationship between the code, clause 7, the question of whether or not it’s called up or expressly or by necessary implication we say in this case there is no evidence that the effect of the code, the effect of the code potentially on the award - the award being now part of the agreement - is given.
PN64
There is no evidence before the Commission other than bald assertions that explanations were given. We go further than that and say given the uncertainties it’s difficult to imagine what explanation might be given. To the extent that the code renders part of the award inoperative, potentially it’s explicable in terms of particular clauses but to the extent that clause 11A of the code means that the agreement which incorporates the award - sorry. Clause 11A says:
PN65
A code entity must not be covered by an agreement in respect of building work that includes clauses like - - -
PN66
So if clause 11A has effect in the way it is worded, then potentially, given that the agreement provides that it is to satisfy the code an outcome may well be that an employee wouldn’t be covered by the agreement at all. That is, if the agreement ‑ ‑ ‑
PN67
SENIOR DEPUTY PRESIDENT DRAKE: Go on, Mr White.
PN68
MR WHITE: Sorry?
PN69
SENIOR DEPUTY PRESIDENT DRAKE: Go on I’m sorry.
PN70
DEPUTY PRESIDENT ASBURY: Do you say, Mr White, that that’s because of the effect of the code or the effect of the agreement? Because the code doesn’t appear to say it stops an agreement from applying, it just seems to say, “Thou shalt not be” - arguably - - -
PN71
MR WHITE: “Thou shalt not be covered by an agreement of that type?”
PN72
DEPUTY PRESIDENT ASBURY: Yes, that’s right, yes.
PN73
MR WHITE: But then you back to the agreement and the agreement - - -
PN74
DEPUTY PRESIDENT ASBURY: It doesn’t say, “You aren’t.” It just says, “You can’t be,” and the repercussions of that are we’re not going to give you any work if you are.
PN75
MR WHITE: If you then go back to the agreement, and this is the uncertainties about the word, “satisfy,” because it says the agreement is meant to satisfy.
PN76
DEPUTY PRESIDENT ASBURY: Again, what is the difference between that and an agreement that says, “Nothing in this agreement is intended to be inconsistent with the Anti-Discrimination Act or” - it isn’t simply a statement of intent?
PN77
MR WHITE: It’s intended to satisfy the code. If the code says, “Thou shalt not be covered by an agreement of a particular type,” if the agreement is of a particular type then it’s not an expression of intent; we say it goes further than that because you would read the agreement as satisfying the code, whatever that means. If satisfying the code means that it is inoperative to the extent it’s inconsistent with the code, then the agreement doesn’t exist. So it’s the interaction of clause 11A of the code and clause 7 of the agreement in respect of the satisfaction or the purpose to which or the way in which you read the agreement as satisfying a code.
PN78
DEPUTY PRESIDENT ASBURY: Well, if you read it in that way - and I don’t accept for the moment - but hypothetically if you read it in that way the effect isn’t to overrule the entirety of the agreement. Taken at its highest isn’t the effect just an intention that nothing in the agreement will be inconsistent with the code?
PN79
MR WHITE: We say that’s not the consequence of reading 11A and clause 7 together.
PN80
DEPUTY PRESIDENT ASBURY: Okay, all right.
PN81
MR WHITE: That is, there is a prohibition under the code on a code-covered entity not to be covered by an agreement of a particular type. If an entity is covered by an agreement of a particular type then sure, under the code consequences may flow. But that is dealt with in the terms of the agreement in clause 7 in relation to the purpose of the clause or the agreement intending to satisfy the code and gives some examples after that about particular clauses which do not satisfy the code. So read together, if an agreement is of a type described in clause 11A - - -
PN82
DEPUTY PRESIDENT ASBURY: So it includes any of those provisions in clause 11 or section 11 - clause 11 of the code, then the whole agreement doesn’t apply, not just the offending clause?
PN83
MR WHITE: We think so, yes.
PN84
DEPUTY PRESIDENT ASBURY: Okay, I understand your argument. Thank you.
PN85
MR WHITE: Even at the least, even if only particular parts of the agreement don’t apply, our point about there being an absence of explanation about how all those different provisions of different documents intersect being explained to the employees, we say means that the employer in breach of section 180(5) has not explained the agreement. There is no evidence other than, as we said before, in broad and general terms about what explanation in relation to these potential inconsistencies and interactions was given to the employees.
PN86
Just as a bit of a side wind in relation to that, in relation to the Cairns agreement the evidence of the employer seems to be that the agreement was explained to the employee representatives. So when you look at the application, which is - sorry. There is a form 17(5). It’s under tab 20 in the appeal book. It’s a statutory declaration by Brad Gething. 2.7, “What steps you took to explain:”
PN87
The company ensured that the employee representatives understood the terms and conditions of the agreement -
PN88
Whatever that means, absent any particular detail. However, when you look to other documents it appears that there were no employee representatives. So Mr Peterson under tab 6 gives a statutory declaration.
PN89
DEPUTY PRESIDENT ASBURY: He says, “I’m not a bargaining representative.”
PN90
MR WHITE: Yes. Not only does Mr Peterson say that but in the application itself, which is under tab 21, once again this application is signed by Brad Gething. Under question 4 - sorry, there’s union bargaining representatives. Employee bargaining representatives dealt with in 5:
PN91
Were there any employee bargaining representatives involved in the agreement-making process? No.
PN92
I suppose as I said as a side wind that’s a slightly different point from the point that we’re making that given the interaction between the code - particular clauses of the code - and particular provisions of the agreements, we say there is no evidence from which the Commission could have been satisfied that explanation was given and in any event to the extent that there’s an assertion made that it was made in Cairns, it was made to two apparently non-existent people.
PN93
The other consequence of there being such inherent uncertainty we say rises from section 186(2)(a) and 188(c). 186(2)(a) provides the Commission in order to approve an agreement must be satisfied that the agreement has been genuinely agreed to by the employees. As to what, “genuinely agreed to,” means you go to section 188(c) in particular and it provides that an enterprise agreement has been genuinely agreed if once again the Commission is satisfied of a number of things thereafter set out, one of which is:
PN94
There are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.
PN95
In circumstances where there is significant uncertainty and ambiguity and use of a draft document, we say the Commission could not be so satisfied in the absence of express evidence as to the way in which those ambiguities, uncertainties and reliance on the draft documents are explained. We say the Commission will have seen from our submissions the third impact we say that those uncertainties have is in respect of the capacity of the Commission to apply the BOOT.
PN96
To the extent that clause 7 applies and the award is called up and it’s subject to the exceptions which are otherwise set out in the code so-called; in circumstances where that was only in draft form, not supported by any legislation, we say it is of such an inchoate quality that the Commission is unable or was unable as at the test time to apply the BOOT. In any event and in the alternative, if clause 7 does not apply because of clause 11A code and the award is not called up then we say that the agreement in any event, in some respects, does not pass the BOOT.
PN97
Whilst this wasn’t a matter that the Senior Deputy President at first instance addressed his mind to, there are a number of things we say which render this agreement less than the BOOT if the award is not called up, for example: hours of work, overtime, absence of provision for trainees. The award, if it was called up, makes provision for those things. If the effect of clause 7 in its interaction with clause 11A means that the award is not called up then there are various deficiencies in respect of the BOOT.
PN98
Now, that leads then to perhaps a short argument about whether or not what is incorporated into the agreement and whether or not other pre-approval steps have been met. One of the other pre-approval steps that is required is that the employer is to provide the agreement and other documents incorporated into it to the employees from whom approval is sought. It’s clear from the terms of clause 7 that the award is incorporated in the agreement. It says so in terms. We also say and interpolate there that having an award on site, we say, is not synonymous and does not satisfy the obligation under subsection 180 to give to each employee the written text of the agreement or the documents which are incorporated.
PN99
But we go further than that, not only do we say is the award incorporated into the agreement but by reason of the effect of the inter-relationships between the award and the code and the fact that the agreement is meant to satisfy the code, then either expressly or by necessary implication we say the agreement incorporates the code. The effect of that is when one goes to the obligations under section 180 it is clear that the employer has not provided to each of the employees whose approval is sought a copy of the documents they’re obliged to provide; that is a copy of the agreement and any material incorporated by reference to the agreement.
PN100
So we say there is no evidence by which the Commission could have been satisfied that the award was given to employees. There is some evidence in relation to Townsville that the award was on site. But no evidence, we say, to show that the award was given and further, secondly, to the extent that the code is incorporated, there is no evidence at all that the code either was available and certainly no evidence that it was provided.
PN101
It is in some senses - well, expressly - put against us that there is no obligation on an employer to provide copies of documents which are generally available in the public domain. Cases we rely on - and perhaps we’ll go to this more in reply - by the respondents really we say are referable to law, the public law, which is available so to the extent an agreement might refer to the Long Service Leave Act was one of the examples in one of the cases. The Long Service Leave Act can be accessible.
PN102
SENIOR DEPUTY PRESIDENT DRAKE: Do you distinguish awards of this Commission from acts of parliament that are equally available? It might be thought in many cases that the awards of the Commission are more accessible than the statutes and legislation.
PN103
MR WHITE: Well, I don’t know about that but the fact of the matter is the law generally speaking - sorry. Generally speaking the law, like long service leave acts, have been referred to in agreements to the effect that you get long service leave in accordance with that Act, so not incorporated. They say, “Well, we’ve explained to you. You can go and look at the Long Service Leave Act. That’s okay.” But this is a different context. In this case there is a specific obligation to provide the written text of the agreement and to the extent the agreement incorporates a document there is an express requirement to provide that as well.
PN104
SENIOR DEPUTY PRESIDENT DRAKE: Or access to it?
PN105
MR WHITE: Well, subsection 180(2):
PN106
An employer must take all reasonable steps to ensure that during the access period the employees employed at the time who will be covered by the agreement are given a copy of the following materials: the written text and any other material incorporated by reference in the agreement or (b) the relevant employees have access throughout the access period for the agreement to a copy of those materials.
PN107
The fact that it’s on site, absent a direction that it’s there to be inspected if you wish, doesn’t satisfy that there’s access to it and certainly in any event, to the extent the code is incorporated, there is no evidence that the code was provided at all, or any of the other codes that are set out in clause 7. Another consequence which flows, we say, from the uncertainties - and I’ve touched on this before - is the inability, we say, to give a coherent explanation about a draft document under an Act which hasn’t been passed which might have the effect of rendering either the whole award - which is said to be incorporated - not applicable, or at least parts of it not applicable.
PN108
But further, and in any event, there is an absence of any detail at all of the explanation in respect of those matters which was provided by the employer. We’ve already touched on the other problem, about the absence of bargaining representatives in Cairns, to the extent that the employer explained to the bargaining representatives so as to satisfy their obligations under the Act. We say that’s inherently inconsistent with the evidence which was before the Senior Deputy President.
PN109
There is a further pre-approval condition and that is subsection 180(3). That provides that:
PN110
The employer must take all reasonable steps to notify the employees of the time and date at which the vote will occur and the voting method to be used.
PN111
The Act provides that the responsibility is cast on the employer to protect the integrity of the ballots, such that is places the employer in a position when it applies for the approval of the agreement to satisfy the Commission that employees have genuinely agreed. It is not, we say, a delegable duty. In this case we say in respect of Cairns, the evidence is clear, we say, that the employer did not satisfy the obligation under subsection 180(3). The evidence is clear, we say, that Robbie Peterson and not the employer, told the people about the method of voting, time and place, and method.
PN112
The statutory declaration of Brad Gething to some extent is interesting. In his statutory declaration of 5 December 2014 he says that the employees were - we’ll go back to that, tab - sorry? Tab 9 of the appeal book, he says that the employees were told on 30 October that a vote for the agreement was to be held. He had given an earlier - sorry. He then subsequently gives a statutory declaration of 5 January 2015 which is - sorry, there was an earlier statutory declaration of his on 5 December 2014. That earlier one is in tab 16, in which - this is an amended one. It says:
PN113
Mr Robbie Peterson advised all agreement-related employees that a vote would be taking place on 10 November.
PN114
Mr Peterson in his statutory declaration of 8 January - which is under tab 6 - says that he has read the statutory declaration of Mr Gething of 5 December 2014 and agrees with that. The problem is, though - two problems arise. First of all, on its face it is Mr Peterson, an employee, from whom the employer sought approval of the agreement who notified everybody of the voting agreement. There is no control or responsibility taken by the employer, contrary to the obligation under section 180 in respect of that. Not only is it apparent that the employer did not advise but when the said employees were advised it obviously can’t be the case in respect to Mr Peterson himself.
PN115
We say these pre-approval considerations are jurisdictional facts and are necessary to exist and the philosophy behind it is the employer seeking approval is able to satisfy the Commission on an evidentiary basis that the proper pre-approval steps have been taken. The question of satisfaction is a matter about which the Commission probably sees submissions on many occasions. Can I just provide to the Commission a copy of - it’s not the most recent but it’s a very recent decision of the Full Court Federal Court in relation to satisfaction in jurisdictional facts. It’s an inspected decision of this Commission: Australia Post Corporation v D’Rozario, a decision of Besanko, Jessup and Bromberg JJ, [2014] 222 Federal Court Reports 303.
PN116
I won’t take the Commission to it but commencing at paragraphs 7 onwards, Besanko J in that decision sets out in summary form the question of what satisfaction means in the context of it being a precondition to the exercise of jurisdiction and describes in fairly blunt terms - not blunt terms, precise terms - the elements of jurisdictional fact.
PN117
The last thing I want to make submissions about is this: we’ve set out in respect of the two decisions, the procedural history and the Senior Deputy President issued two decisions. One was of an interlocutory type, as he describes it, and that was in respect of the application by the CFMEU to be heard on the question of approval. The second decision was to approve the agreement:
PN118
It is the operative decision to approve the agreement, the subject of these appeals.
PN119
So, for example, in relation to the Cairns decision - the decision is under tab 2 - it’s a very short decision of four paragraphs. It is that decision from which an appeal has been brought. Obviously in respect of a range of matters which had been put to him at least for the purposes, as he describes it, of the interlocutory-type decision, there are no reasons why he was satisfied. To the extent that the earlier decision of 14 January 2015, which is under tab 3, might be taken to be the reasons why he was so satisfied, we say that there are some difficulties in respect of that in a number of respects.
PN120
One of the matters we go to in our written submissions is contained in paragraph 31. There his Honour says:
PN121
There is no evidence before me that the requirements of section 185 of the Act in relation to the employer having taken all reasonable steps to explain the terms and effects of the agreement have not been discharged. This, after all, is the relevant test, not whether the steps taken result necessarily in a perfect understanding.
PN122
Putting aside the characterisation of whether or not reasonable steps have been taken we say it’s a significant and House v King-type error to say that the Commission can’t go beyond declarations in the absence of competing evidentiary facts. There was sufficient evidentiary facts, we say, in this case, which would cause the Senior Deputy President to look askance at a number of the matters and we have addressed some of those today. But that we say reflects an error of principle, the enunciation of the wrong test, and we say that’s an error of the type of House v King which renders the decision in error and subject to appeal.
PN123
For the reasons which we say error is shown we say questions of jurisdictional error are generally sufficient of themselves to warrant the grant of leave to appeal. In respect of the particular interpretations of sections which have been considered, we say that’s of sufficient importance that leave to appeal should be granted. In respect of the substantive matters which inform the application of the sections, whilst they’re limited to two workplaces, they are none-the-less illustrative of the way the Act works and for those reasons we say leave to appeal should be granted.
PN124
SENIOR DEPUTY PRESIDENT DRAKE: Thank you.
PN125
DEPUTY PRESIDENT ASBURY: Mr White, sorry; I’ve just got one question: do you say that the situation in this case can be distinguished from the McDonalds case with respect to the terms of the incorporated material because in the McDonalds case, it was simply a statement that - I think it was long service leave will be in accordance with - - -
PN126
MR WHITE: Yes.
PN127
DEPUTY PRESIDENT ASBURY: - - rather than a case where the entirety of an award except for certain things is incorporated?
PN128
MR WHITE: That’s what I was trying to say, somewhat inelegantly, yes.
PN129
DEPUTY PRESIDENT ASBURY: Yes, I understand.
PN130
MR WHITE: If you say that you’re governed by the Long Service Leave Act, you say, “All right, that’s the Long Service Leave Act.”
PN131
DEPUTY PRESIDENT ASBURY: Yes.
PN132
MR WHITE: But there’s the separate provisions about - - -
PN133
DEPUTY PRESIDENT ASBURY: What’s in and what’s out.
PN134
MR WHITE: - - and what you’ve got to give.
PN135
DEPUTY PRESIDENT ASBURY: So you say in that case that’s a different type of incorporation, if you like, and it did require that the award was provided?
PN136
MR WHITE: Yes.
PN137
DEPUTY PRESIDENT ASBURY: Or access was provided.
PN138
MR WHITE: Yes. I’m hunting for documents. So I think my learned friend relies on a number of cases: McDonalds was one of those. I haven’t deliberately lost his submissions but I can’t lay my hands on them at the moment. Yes, so the McDonalds case - the NTU case was in respect of laws. The McDonalds case was the NES, which was under the statute and the Long Service Leave Act.
PN139
The Queensland pre-stressing case that’s referred to there, interestingly also is distinguishable in this sense, and that is that documents which were provided or asserted to be not provided for the purposes of making the agreement were provided at induction. So in that case as a matter of fact documents, even if they fitted the description under section 180(2), had been earlier provided to the employees. So we say there is a clear distinction. We would not describe that a description in the agreement that certain entitlements are subject to particular pieces of legislation incorporate that legislation. Rather, it is certainly a reference to that legislation.
PN140
DEPUTY PRESIDENT ASBURY: I understand, thank you.
PN141
SENIOR DEPUTY PRESIDENT DRAKE: Mr Murdoch, we are going to take a short adjournment of 15 minutes before hearing from you. But without consulting with the other members of the Bench it occurs to me that I might ask you: this code that is said to be incorporated, it’s a legislative proposal, isn’t it, really? It hasn’t got any further than that?
PN142
MR MURDOCH: Yes, your Honour.
PN143
SENIOR DEPUTY PRESIDENT DRAKE: You might like to explain to me how such a legislative proposal might set aside any term in a modern award or an enterprise agreement certified or approved before the Commission. It seems to me that that would not be possible. You would have to persuade me about that. That might have a whole raft of effects about how that clause might operate and what undertakings might be given for it in any event. I don’t know whether legislative statements of intention can be used to set aside terms of modern awards.
PN144
MR MURDOCH: I’ll bear what your Honour says in mind.
PN145
SENIOR DEPUTY PRESIDENT DRAKE: I’m sure you’re really pleased I asked you that question. So 15 minutes, thank you.
SHORT ADJOURNMENT [11.48 AM]
RESUMED [12.25 PM]
PN146
SENIOR DEPUTY PRESIDENT DRAKE: I’m sorry about that time delay. We’re about as reliable as most barristers on time estimates at the moment. Yes.
PN147
MR MURDOCH: I don’t know what to say to that, your Honour. I don’t know how to answer that.
PN148
SENIOR DEPUTY PRESIDENT DRAKE: I think silence is your best go.
PN149
MR MURDOCH: Indeed. Can I take the outline of submissions that was filed last Friday as read?
PN150
SENIOR DEPUTY PRESIDENT DRAKE: Yes, and I’ve marked them CSR1.
PN151
MR MURDOCH: Thank you. Just before I start on the submissions, can I just note that I’ve taken onboard the question that your Honour, SDP Drake asked me before the date, and if it’s satisfactory to the Commission, I’ll deal with that when I get to that part of the submissions, rather than dealing with it at this stage. What I had intended to do was to, firstly, deal with the issue of standing, that being whether the CFMEU is a person aggrieved, and then go on to deal with the substantive matters that have been raised, and then lastly, to the extent required, deal with the issue of leave, if that is satisfactory.
PN152
SENIOR DEPUTY PRESIDENT DRAKE: Yes.
PN153
MR MURDOCH: Can I deal, firstly then, with the matter of standing. In my submission, the matter of standing is a significant preliminary issue in this proceeding. It’s clear from section 604 that a person, in order to be a person who may appeal, must be a person aggrieved by a decision, and that derives attention to whether the CFMEU is a person aggrieved by the relevant decisions under appeal here.
PN154
In my submission, if they’re not, well, self-evidently the matter ends there and there’s no requirement to then go on to consider the matters in substance, or indeed, any question of leave. In respect of person aggrieved, as I say, one has to be a person aggrieved in respect of the decisions under appeal. In this case, those decisions that are under appeal are the approval decisions, and it’s clear from the notices of appeal that what is sought to be put at issue is the other respective decisions to approve.
PN155
Now, in respect of who, as a matter of law, can be a person aggrieved, my learned friend has taken you to some of the cases on that, and in paragraph 9 of our written submissions we’ve also dealt with that topic. Could I ask you, please, to turn to the Tweed Valley case that my friend took you to earlier? It’s also at tab 3 in the bundle of authorities that the respondent has provided. Can I ask the members of the Bench to please go to page 414. We see there the heading, “Person Aggrieved”.
PN156
The discussion in respect of person aggrieved in that case goes over to the following two pages. Can I ask you to go particularly to page 415 and what in my submission is really the applicable test is set out about halfway down in the paragraph beginning, “In Toohey’s Limited v Minister for Business and Consumer Affairs”, and you’ll note there that a person who is aggrieved extends at least to:
PN157
A person who can show a grievance which will be suffered as a result of the decision complained of beyond that which he or she has as an ordinary member of the public.
PN158
So not a question of an interest in the matter, one has to show a grievance beyond that of a member of the public. Then further discussion towards the end of that paragraph as to how that grievance will be shown:
PN159
The decision affects his or her existing or future rights but in other cases it may be less direct; it “may affect him or her in the conduct of a business or ... affect his or her rights against third parties.
PN160
One can see that there’s a focus upon there being a detrimental effect of some description upon a person, and particularly in respect of his or her rights. Now, in the decision of Tweed Valley, it can then be seen towards the end of page 415 what were the particular matters that were relied upon there in respect of the issue of standing, and it’s revealing to analyse the matters that were relied upon there. It’s noted that the relevant decision didn’t affect the union’s legal interests, but it goes on to say why the members of the Full Court held that there was an interest beyond that of an ordinary member of the public.
PN161
None of the matters that are relied upon there apply here. Firstly, it was consumed with the maintenance of members’ conditions of employment. There’s no evidence before this Full Bench that the union has any members at the relevant sites that these agreements cover. Secondly, it had participated in the decision complained of by making submissions. Well, as we know here, Richards SDP Richards found that the union didn’t have a right to be heard, and it then goes on:
PN162
The decision was one containing potential for industrial disputation.
PN163
There’s no evidence before this Full Bench that there’s any potential for industrial disputation arising out of the approval of these agreements. Indeed, it’s clear that in respect of each agreement, one worksite had 11 folk vote, it was 11 out of 11 who voted to make it. The other side had three, again, three out of three. So none of the criteria that were identified as being relevant in Tweed Valley apply here.
PN164
SENIOR DEPUTY PRESIDENT DRAKE: Do you say that it has to be a present possibility of future - a present, actual industrial disputation or disagreement, rather than the possibility of one in the future?
PN165
MR MURDOCH: Well, it has to be, in my respectful submission, something that - there’s got to be a clear and present danger of it. It simply can’t be a matter, “Oh well, there may one day be some industrial disputation.” Can I then take you to the other decision relied upon by my friend, being the Australian Institute of Marine and Power Engineers’ matter. That’s Gummow J’s decision, as his Honour then was. You were taken to, in particular, page 133, and again, we see in the first new paragraph on page 133 some general discussion about what is the meaning of a person aggrieved.
PN166
But then when one goes to why it was in that case that his Honour held that the relevant industrial organisation was a person aggrieved, that’s set out in the paragraph that begins, “First”. The criteria that seemed to be relied upon there, again, don’t apply here. There’s the first point:
PN167
First, the applicant has among its interests or objects the obtaining and maintenance of reasonable conditions of employment of its members.
PN168
Well, again, no evidence of members in the present case:
PN169
Secondly, it was invited to participate in the Manning Committee in respect of the ship in question.
PN170
Well, here, there was no right to be heard given, and then it goes on to say that in that context, it seeks reasons. So again, the very criteria that were identified as being particularly relevant to an adverse effect on the interests of that union, we are, with respect, light years away from that in the present case. To further make good that point, you’ve heard nothing, in my submission, as I say, in respect of there being any members present at the site. There’s no evidence that the CFMEU was at any point a bargaining representative for the agreement.
PN171
Nothing has been said to this Bench in respect of any existing right of the CFMEU have been taken away or interfered with by the approval of this agreement. There’s been no suggestion that there’s been any effect on any existing right to represent people at the site. There’s no suggestion that lawful right of entry is in any way impeded. There’s no suggestion that this agreement affects the capacity of the CFMEU to have people there join it.
PN172
There’s no effect in respect of the CFMEU’s capacity in respect of further bargaining, so there’s simply no present right or interest that’s being affected in any detrimental way by the approval of this agreement. So applying the ordinary tests in respect of person aggrieved, the CFMEU can’t establish that it has the relevant interest beyond that of an ordinary member of the public. The highest it gets, it seems, is that the CFMEU has the capacity to represent these people, but in my submission, in light of the cases and the authorities, that’s simply not enough.
PN173
Now, I’ve referred in the written outline to the Collinsville decision. Now, I accept that the matter at issue in Collinsville was whether or not Harrison SDP correctly held that the CFMEU was not to be given a right to be heard at first instance, but the principles that were applied by the Full Bench in finding that her Honour didn’t err in respect of applying section 590 are telling, in my submission, of how a Bench should go about applying person aggrieved.
PN174
Firstly, when one turns to look at section 590, which is the section that deals with people having a right to be heard, it is, in its terms, a far broader section than person aggrieved. So we have a situation in Collinsville where applying a broader test to person aggrieved, the union was found to lawfully have not been given a right to be heard.
PN175
Secondly, in respect of a situation where there is a right to be heard in play, that’s a different context. It’s a context where there is a proceeding on foot, a matter to be determined, and someone seeks to come along and make some submissions. Whereas here, it’s a quite different context. There’s been an agreement approved by a member of the Commission, an agreement approved which has been made between the employer and the employees, but it’s a third party who now seeks to come along and disturb that.
PN176
In my submission, that’s an important consideration in respect of the context how a person aggrieved should be interpreted. Now, finally in respect of Collinsville, as I said, it’s a broader test, but the matters that were considered by the Full Bench are telling. I don’t wish to take you in depth through Collinsville, but I simply ask you to note some relevant paragraphs. It’s at tab 4 in the bundle.
PN177
I’ll just ask you to note in particular the matters that were considered by the Full Bench in that case in respect of why it was the CFMEU didn’t have - or was it wrong to hold it didn’t have a right to be heard. From paragraph 54 through to paragraph 61 is a recitation of the various arguments that were put forward by the CFMEU before the Full Bench. One can see from going through those various arguments - and with respect, the treatment and the rejection of them by the Full Bench - that one has to have more than simply the capacity to represent people. There’s got to be more than that.
PN178
It wasn’t found to be present there, and it’s certainly not present here. So in my respectful submission, when one applies person aggrieved correctly to the facts of this case, the CFMEU don’t even get past the first important test they’ve got to satisfy. They haven’t got standing and if the Commission is with me on that point, well then, there’s simply no need for the Commission to go on to consider other matters such as leave to appeal and indeed, the substance of the appeal.
PN179
That was all I wanted to say in addition to what’s in the written submissions about person aggrieved, unless there was any particular matter that you wished to raise with me. I might move on, then, to deal with the other matters. Can I first deal with the matter in respect of the Senior Deputy President not being able to be satisfied that the agreement passes the better off overall test.
PN180
As part of dealing with that, I’ll take you to what my client’s submissions are in respect of the relevance of the various arguments put forward about clause 7, and in so doing, I’ll deal with the issue that your Honour, SDP Drake, raised with me earlier. In respect of the better off overall test, the first thing that in my submission is relevant is that the better off overall test assessment has to be made at what is referred to in the Act as the test time, and the test time is the time that the application for approval is made. The application for approval here was 25 November 2014. That can be seen at page 204, in respect of Townsville, and 19 November 2014, that’s at page 118, in respect of Cairns.
PN181
So the question was whether the BOOT test was passed at that point in time, not whether it was passed in respect of some future point in time. Now, can I then move to deal with clause 7. In my submission, there is no lack of clarity in clause 7, and it’s clear, in my submission, and I’ll take you to why in a moment, what work clause 7 seeks to do. As a result of that, the better off overall test could have been performed and, in my submission, there’s nothing to indicate that it wasn’t performed by Richards SDP.
PN182
I note in that respect that despite the apparent suggestion that as a result of clause 7 the BOOT test somehow failed, apart from some very broad submissions made to you by my learned friend, there’s still no actual detail from the CFMEU as to precisely how it is said that the BOOT test wasn’t satisfied by clause 7.
PN183
Now, can I take you through clause 7. It’s relatively the same in respect of each agreement. The one that I’m working from is the one at page 11 of the Cairns appeal book, may it please the Commission.
PN184
SENIOR DEPUTY PRESIDENT DRAKE: They’re the same, are they not?
PN185
MR MURDOCH: They are, but - now, working through the clause, the first point to bear in mind is that as the Commission is aware, by virtue to section 247 of the Act, the relevant underlying award or - sorry, just bear with me. As you’re aware - just excuse me for a second. Sorry. Section 57. As you’re aware, section 57 has the effect that a modern award doesn’t apply to an employee in relation to their employment when an enterprise agreement applies to the employee in relation to that employment.
PN186
So the default position is that if an agreement is made, the underlying award doesn’t apply. The work of clause 7 here is to pick up parts of the award, so it’s not a situation, with respect, your Honour, where the code cuts across the award. The situation is that the clause only picks up certain parts of the award and when one works through the clause, one is able to identify, by reading it and interpreting it, which parts of the award are picked up.
PN187
SENIOR DEPUTY PRESIDENT DRAKE: Well, you can, unless the code changes.
PN188
MR MURDOCH: Well, that’s right, but that’s something that may happen or may not happen, and there’s nothing in the Act that prevents there being a provision that may change over time. Nothing in the Act that prevents a provision in an agreement changing over time. Section 257 of the Act provides that that’s something that can expressly be the subject of an agreement. I take you to section 257 ‑ ‑ ‑
PN189
SENIOR DEPUTY PRESIDENT DRAKE: You got it right this time.
PN190
MR MURDOCH: Yes, I have. I jumped the gun, your Honour. It expressly says that an enterprise agreement may incorporate material contained in an instrument or other writing as in force at a particular time or as in force from time to time. Now, it’s telling that section 257 isn’t limited to an Act of the Parliament or an award. It’s expressly very wide, “an instrument or other writing at a particular time or as enforced from time to time.”
PN191
So there’s no defect in section 7 simply because it refers - and I’ll develop this further in a moment - by way of interpretation to another piece of writing “as enforced from time to time.” The Act expressly allows for that to occur. So what we see in clause 7 is a clause that picks up only certain terms of the award, being an award that by section 57 otherwise wouldn’t apply.
PN192
As can be seen from the first paragraph in clause 7, what is picked up or what parts of the award that are picked up are those parts of the award as varied from time to time, provided that where there is any inconsistency between the express terms of this agreement and the incorporated terms of the award, the terms of this agreement prevail to the extent of any inconsistency. So the award is picked up as per clause 7 to the extent of any inconsistency.
PN193
If there is inconsistency, the agreement prevails. Then as one works through clause 7, there are definitions of the Building Code, the Queensland Code and the Guidelines, so again, it’s clear what is being referred to there. Then we get to the paragraph beginning with “The agreement”, “The agreement is intended to satisfy the Building Code, the Queensland Code and Guidelines, the compliance instruments”, and then what that paragraph means is explained by what follows.
PN194
This means that any award provision that doesn’t satisfy the compliance instruments is not incorporated into this agreement. So ‑ ‑ ‑
PN195
SENIOR DEPUTY PRESIDENT DRAKE: But does it mean that they are the only clauses that might be said to not complied, not satisfied the Building Code?
PN196
MR MURDOCH: I’m sorry, your Honour?
PN197
SENIOR DEPUTY PRESIDENT DRAKE: Are you saying that these are the only provisions in the award that do not satisfy the Building Code?
PN198
MR MURDOCH: No, I’m not saying that. There are two aspects to the last paragraph. The first part is that any award provision that doesn’t satisfy the compliance instruments is not incorporated in to the agreement. That’s the first part of it, but then it goes on to specify some particular ones.
PN199
SENIOR DEPUTY PRESIDENT DRAKE: But how would any person reading this understand what the other ones might be? How would I know that?
PN200
MR MURDOCH: Well, a person could know that, in my submission, by going to the compliance instruments and comparing what is said there to what is in a relevant award provision.
PN201
SENIOR DEPUTY PRESIDENT DRAKE: So one of these employees might go and look at the Building Code, compare it to the award and figure that out and then have a look at the enterprise agreement?
PN202
MR MURDOCH: That’s so, and we have listed the particular clauses that attention is directed to in particular.
PN203
SENIOR DEPUTY PRESIDENT DRAKE: But you don’t limit it to those?
PN204
MR MURDOCH: No, I don’t, but in my respectful submission, it’s something that’s knowable. It’s clearly set out what instrument is to be considered in determining the question of inconsistency and when that ‑ ‑ ‑
PN205
SENIOR DEPUTY PRESIDENT DRAKE: Knowable by whom and by how? By looking and interpreting all of this?
PN206
MR MURDOCH: That’s so, yes. As is the case with many provisions of enterprise agreements, by interpreting the relevant provision. So what is the effect of clause 7 is knowable. It’s not a situation where it’s uncertain.
PN207
SENIOR DEPUTY PRESIDENT DRAKE: So if they were so knowable, why are they not listed here with the other ones? Why is it not a complete list so that any employee looking at this could know it by looking? Why are only A to G listed?
PN208
MR MURDOCH: Well, A to G are the ones that are particularly referred to.
PN209
SENIOR DEPUTY PRESIDENT DRAKE: Yes, I know, but why, if they are knowable, by looking at the code now and looking at the award now, are they not knowable? These employees might want to know which ones are excluded. If they’re so easy to know, they should be listed, should they not?
PN210
MR MURDOCH: Well, because, as the Act allows, it can be varied from time to time.
PN211
SENIOR DEPUTY PRESIDENT DRAKE: Yes. What can be varied, the code?
PN212
MR MURDOCH: Yes.
PN213
SENIOR DEPUTY PRESIDENT DRAKE: I see, but as to future variations, that’s not what I’m asking you about right now. What I’m asking is whether you say right now these are the only ones that are excluded? Or are not incorporated? You say there are some other clauses that are not incorporated?
PN214
MR MURDOCH: I don’t say that there are or there are not. Nothing has been said to you, with respect, by those who are seeking to challenge this agreement in that regard.
PN215
SENIOR DEPUTY PRESIDENT DRAKE: But I’m asking.
PN216
MR MURDOCH: Yes. Well, I ‑ ‑ ‑
PN217
SENIOR DEPUTY PRESIDENT DRAKE: I’m asking. I want to know why, if it’s knowable right now, what is and is not incorporated, what are and are not incorporated, what clauses, why they, if there’s more than A to G, are not listed there?
PN218
MR MURDOCH: I’m not saying there is more than A to G.
PN219
SENIOR DEPUTY PRESIDENT DRAKE: I’m sorry, I thought you said there were.
PN220
MR MURDOCH: No, no, I ‑ ‑ ‑
PN221
SENIOR DEPUTY PRESIDENT DRAKE: I apologise.
PN222
MR MURDOCH: No, I apologise. I may have misspoken. I’m not saying there is more than the ones that are specified or there is not. What I’m saying is that the means of identifying that is clear.
PN223
DEPUTY PRESIDENT ASBURY: Mr Murdoch, do you say that - because I’m not understanding what the effect of this clause is, and what it was intended to do.
PN224
MR MURDOCH: Yes.
PN225
DEPUTY PRESIDENT ASBURY: So is it saying that any award provision that doesn’t satisfy the compliance instrument at the test time, is that what you’re saying? So any that doesn’t satisfy those named guidelines and codes and et cetera at the test time are not incorporated, as well as these ones, or does it say that, if down the track when the code is amended, that a clause of the modern award doesn’t comply or isn’t consistent, then that clause can, at some future point, be excised from the agreement?
PN226
MR MURDOCH: What it says is - and I’m not ducking the question, but it says, with respect, what it says. I’ll just take you through it step-by-step. The first sentence says that any award provision that doesn’t satisfy the compliance instruments is not incorporated into this agreement. That’s the position. Whether it be as per the compliance instruments now or as they’re varied from time to time.
PN227
DEPUTY PRESIDENT ASBURY: Right.
PN228
MR MURDOCH: It then goes on to provide specifically in respect of certain clauses, and the point that I’m making, or attempting to make, with respect, is that whilst, going back to Drake SDP’s question to me, I can’t stand here now and take you through a litany of award provisions that might or might not be affected, but the exercise can be done because what’s to be done is stated. It’s not a situation where people can’t find out or it can’t be ascertained for the purposes of interpretation.
PN229
DEPUTY PRESIDENT ASBURY: Well, where was it done for the purposes of the BOOT? Because the reality is that any - if the BOOT only applies at the test time, then an assessment has to be made against the award at the test time.
PN230
MR MURDOCH: Yes.
PN231
DEPUTY PRESIDENT ASBURY: And a comparison between the agreement and the award has to be made at the test time.
PN232
MR MURDOCH: Yes.
PN233
DEPUTY PRESIDENT ASBURY: If there is not a list of - or if it’s not apparent from the material that was before the Senior Deputy President at first instance, what part of the award has been overridden by this agreement and what part hasn’t? How could the BOOT have been applied at the test time?
PN234
MR MURDOCH: Well, because it is apparent because of what is set out in the last paragraph.
PN235
DEPUTY PRESIDENT ASBURY: So are you saying - but how is it apparent? Because the effect of this clause, in essence, is to say, “These things are excluded, but if we’ve missed something else that’s inconsistent with the code, then it’s excluded too.” That’s what it does.
PN236
MR MURDOCH: I accept that.
PN237
DEPUTY PRESIDENT ASBURY: That’s it in a nutshell.
PN238
MR MURDOCH: I accept that.
PN239
DEPUTY PRESIDENT ASBURY: So it’s like the catch-all. So how could you have ascertained, at the point in time when the BOOT was applied, or the test was undertaken, what did and didn’t apply, when nowhere is there any - other than someone sat and went line-by-line through the award and line‑by-line through the code, as it was then.
PN240
MR MURDOCH: Well, that’s an exercise that can be undertaken.
PN241
DEPUTY PRESIDENT ASBURY: But it had to be undertaken before the BOOT could be said to be passed or not.
PN242
MR MURDOCH: And there’s nothing before the Bench to indicate that it wasn’t undertaken. And nor had the Bench been taken to, if that were to be undertaken, how the BOOT is not satisfied. So because of that ‑ ‑ ‑
PN243
SENIOR DEPUTY PRESIDENT DRAKE: It could be an interesting explanation to these employees, “You can go away and take the code and take the award and compare it to the agreement and then get your law degree”, this is not an easy task that you’re suggesting can be done and it’s known how to do it. It’s not something I could do in half an hour and I can’t see any evidence and explanation that covers any of those materials either. There’s no explanation, really, but when you say there’s a method there by which it could be done, if what is attempting here is to set out a clear explanation of were and were not, the entitlement, I can’t see any reason why the lists would not be all inclusive to make it clear to whoever it was who was trying to find out what their entitlements might be and what parts of the award were excluded.
PN244
MR MURDOCH: Well, with respect, your Honour, that might be a criticism of the drafting, but it doesn’t mean that the approval is done in error. Agreements - that’s often why there are matters and agreements brought for dispute before this Commission every day, because particular clauses of agreements could have been drafted in a more clear and certain way, but that doesn’t prevent them ‑ ‑ ‑
PN245
SENIOR DEPUTY PRESIDENT DRAKE: Yes. It might be a subject for those instructing you to have a word to their drafter. Yes.
PN246
MR MURDOCH: But my point is, though, that doesn’t prevent something being approved.
PN247
DEPUTY PRESIDENT ASBURY: But your submission is, as I understand it, Mr Murdoch, that the effect of that clause is that any award provision at the test time that does not satisfy the compliance instruments, and I take that as meaning it’s contrary to a term in the compliance instrument.
PN248
MR MURDOCH: Yes, yes.
PN249
DEPUTY PRESIDENT ASBURY: So if at the test time, there is a clause in the award that doesn’t satisfy the compliance instruments, then that clause is not incorporated together with these ones that aren’t incorporated.
PN250
MR MURDOCH: Yes.
PN251
DEPUTY PRESIDENT ASBURY: And if at any future time, the code comes into effect or is amended so that some more clauses of the award or some different clauses of the award become clauses that do not satisfy the code, then they cease to be incorporated, if they were?
PN252
MR MURDOCH: Yes.
PN253
DEPUTY PRESIDENT ASBURY: So we’re clear; that’s the effect?
PN254
MR MURDOCH: Yes.
PN255
DEPUTY PRESIDENT ASBURY: So this clause is not intended to be a statement of intention to satisfy the code, it is intended to excise anything from the agreement ‑ ‑ ‑
PN256
MR MURDOCH: The award.
PN257
DEPUTY PRESIDENT ASBURY: Well, the award is incorporated into the agreement, so ‑ ‑ ‑
PN258
MR MURDOCH: No, with respect. The award is not incorporated into the agreement, only the parts of the award that are picked up by clause 7 ‑ ‑ ‑
PN259
DEPUTY PRESIDENT ASBURY: But some that are incorporated at the test time could cease to be incorporated by the operation of this clause at some future and unspecified point in time; that’s the effect of it?
PN260
MR MURDOCH: That’s the effect and ‑ ‑ ‑
PN261
DEPUTY PRESIDENT ASBURY: Okay. I understand.
PN262
MR MURDOCH: ‑ ‑ ‑ as a result of section 257, that is something that can occur.
PN263
DEPUTY PRESIDENT ASBURY: Yes. Section 257 is clear, but what I’m also not clear on is what if that causes the agreement not to pass the BOOT, or it not to be ascertainable whether it did pass the BOOT?
PN264
MR MURDOCH: Well, that’s not a relevant consideration at the test time. The test is at a particular point in time.
PN265
DEPUTY PRESIDENT ASBURY: But prospective employees may be employed at a future time.
PN266
MR MURDOCH: Well, they may well be, but because of the existence of section 257 which specifically allows things to be incorporated as they change from time to time, and because of the fact the test is done at a particular time, one has to analyse the BOOT at the time of the test being conducted.
PN267
DEPUTY PRESIDENT ASBURY: So the effect of what you’re saying is that the Commission is limited to determining whether the agreement passes the BOOT to the test time, and if somewhere down the track throughout the life of the agreement there’s a clause in the agreement that says subject to some unspecified piece of legislation or code, we can remove - so let’s say hours of work. Let’s say the hours of work provisions that determine overtime, ordinary time and when it’s payable.
PN268
If that clause became noncompliant with the code, it would be excised from the agreement?
PN269
MR MURDOCH: But with respect, that would be the case in respect of any document, be it a policy, be it an industrial instrument, be it an Act that was incorporated in an agreement.
PN270
DEPUTY PRESIDENT ASBURY: But those things may not cause the agreement not to pass the BOOT. The absence of an hours of provision that specified ordinary time and overtime and when they’re payable would cause it to not pass the BOOT or not to be ascertainable.
PN271
MR MURDOCH: But in both circumstances, you’re dealing with something in the future. The very example which, with respect, you’ve given to me is an example of what could happen amongst a panoply of things that could or couldn’t happen. It’s no different, in my submission, from the situation that arises in respect of any other instrument that’s incorporated.
PN272
DEPUTY PRESIDENT ASBURY: I understand your argument.
PN273
MR MURDOCH: Including - if clause 7 had a full stop put after it, one-third by the second line, we’d still be having the same debate.
PN274
SENIOR DEPUTY PRESIDENT DRAKE: I’m sorry, if you put the full stop where?
PN275
MR MURDOCH: If you put the full stop - if clause 7 was simply comprised of, “This agreement incorporates the terms of the Joinery and Building Trades Award 2010 as varied from time to time” full stop. It would be the same situation.
PN276
DEPUTY PRESIDENT ASBURY: I wouldn’t be having the argument then, Mr Murdoch, because if the award was varied, it would be varied consistent with whatever legislative framework provided for its variation. What I’m struggling with is how, prospectively, a thing that is incorporated into the award can be knocked out - or incorporated into the agreement can be knocked out of it by the code or an amendment to the code? It’s a different - I think that’s a different scenario.
PN277
Many agreements incorporate awards holus bolus and just say, “We incorporate the award in its entirety” and if the award is varied, not a problem. But the difficulty I guess I’m having conceptually is that this agreement incorporates the award and then it provides for a basis that’s not ascertainable for clauses of the award to become not incorporated because they are inconsistent with a code that may or may not be altered.
PN278
MR MURDOCH: After the test time.
PN279
DEPUTY PRESIDENT ASBURY: And at the test time, because it’s not clear what is in and what is out from the clause in the award, unless we go line-by-line through the code and compare it to the award.
PN280
SENIOR DEPUTY PRESIDENT DRAKE: In those matters that you say are knowable if one performed the task that the Deputy President has just outlined, they may be matters about which there is disputation at different periods. You might find that - I’m just making this up - clause 50 might be interpreted at some stage or other, might come in for consideration as to whether it’s in or out of the agreement and then there could be a dispute between the parties as to whether that is or is not in accordance with the code, and therefore it is in or out of the agreement, where it might otherwise not be inconsistent, and that seems to be so difficult to determine in advance, so ambiguous, because none of those matters which you keep in your catch-all safety net of things that may or may not be in, not in the specified ones, are just matters that might have to be argued and might be found to be in and out and I don’t understand how they can be taken into account in assessing the BOOT, if the award is the basis on which you assess the BOOT, because the matters are not resolved, the matters that are not all specified here.
PN281
It’s easy with the A to G, you can look at them, you’re in, you’re out, but you say “and others” and others that might be the subject of considerable disagreement. So the criteria at which you might assess the BOOT is a matter that might be subject to considerable argument at test time. I’m not talking about the future, at test time, because at test time, you say this list is not complete.
PN282
MR MURDOCH: Well, if there’s considerable debate about the matter down the track, there are means of that debate being sorted out through dispute provisions, variations and the like, but insofar as the ‑ ‑ ‑
PN283
SENIOR DEPUTY PRESIDENT DRAKE: But there are things that need to be known now, for the member to be able to assess the BOOT. At the test time, not now, at test time, the member needs to know what’s in and what’s out, to assess the BOOT.
PN284
MR MURDOCH: Well, in that ‑ ‑ ‑
PN285
SENIOR DEPUTY PRESIDENT DRAKE: Anyway, that’s what is troubling me, Mr Murdoch.
PN286
MR MURDOCH: Yes. I’ve heard what your Honour has said and I’ve tried to answer.
PN287
SENIOR DEPUTY PRESIDENT DRAKE: I’ve heard your answer, but I don’t think the answer satisfies my problem with that clause.
PN288
MR MURDOCH: Well, can I just provide two further points in respect of the matter. Well, three further points, actually. The first point is, and I go back to what I said originally, putting aside that matters might change down the track, which I said can happen in respect of any instrument, it’s still possible to carry out the BOOT because there is an award, there are compliance instruments, they can be compared. So the BOOT can be carried out, and ‑ ‑ ‑
PN289
SENIOR DEPUTY PRESIDENT DRAKE: And can your employees do that?
PN290
MR MURDOCH: Well, I’ll come to that in a minute, but I’m addressing, with respect, in respect of the BOOT issue.
PN291
SENIOR DEPUTY PRESIDENT DRAKE: Yes. I’m sorry to interrupt.
PN292
MR MURDOCH: No, no, I’m sorry. I’m happy to be interrupted.
PN293
SENIOR DEPUTY PRESIDENT DRAKE: Well, you need to be around here. Go on.
PN294
MR MURDOCH: But in respect to the BOOT, that can be done. There’s nothing before this Commission, with respect, to indicate that Richards SDP didn’t do that, and nor has it been pointed out in any specific way how, if one does that analysis, the BOOT isn’t satisfied. My client - if the CFMEU’s appeal here in respect of the BOOT, they’re not coming along to you and saying, “Look, we’ve done the analysis and we can demonstrate to you, having done it, how the BOOT is not complied with”, and furthermore, insofar as what was before the Deputy President, he had before him stat decs from the employer in respect of its position in respect of the BOOT.
PN295
He had before him stat decs from employee representatives which said that they agreed with the stat decs, so in terms of what was before Richards SDP, in my respectful submission, he was able to come to a view in respect to the BOOT.
PN296
DEPUTY PRESIDENT ASBURY: Well, did he have with Mr Peterson? I’m sorry to be jumping around, but if you go to page 46 of the appeal book, in the Cairns matter, I think ‑ ‑ ‑
PN297
MR MURDOCH: Yes, it Cairns.
PN298
DEPUTY PRESIDENT ASBURY: The Cairns matter, there’s Mr Peterson’s statutory declaration and he says he wasn’t a bargaining representative and then he says, “The employees I represent support the approval of the agreement”, and then in the employer’s declaration, a meeting was held with the employee representative, that’s on page 104 - well, who was it held with, because it couldn’t have been with Mr Peterson because he’s not the representative, is he?
PN299
MR MURDOCH: Well, Mr Peterson signed a form, F18A, statutory declaration of employee representative in relation to application ‑ ‑ ‑
PN300
DEPUTY PRESIDENT ASBURY: Except that he said he wasn’t one, in point 2.
PN301
MR MURDOCH: He says that, but at every other aspect of the document, at every other aspect of the material before Richards SDP, it indicates that he was.
PN302
SENIOR DEPUTY PRESIDENT DRAKE: Except himself.
PN303
MR MURDOCH: Well, far be it from me to criticise the form, but it’s a form filled out - it’s a statutory declaration of employee representative. So the form only has one piece of work to do, but then there’s a yes or no in respect of what would appear to be the very question that the form goes to.
PN304
DEPUTY PRESIDENT ASBURY: Because you can be a representative for yourself, or you can be a representative for others, which is why there is a yes or no, I assume.
PN305
MR MURDOCH: Yes. But he’s gone on to say, in 3, he goes on to refer to “the employees I represent”.
PN306
DEPUTY PRESIDENT ASBURY: Yes, and again, at 2.7 in the form it says, “The company ensure that the employee representatives”, plural. Page 105. I mean, gee, whoever filled in these forms or whoever gave advice about them needs to have a good long, hard look at what they’re signing. I mean, they’re significant documents that we have to rely on.
PN307
MR MURDOCH: I accept that, but the point that I make about the documents is that there’s a question about whether someone has ticked the right box in the document. That’s one question, but the question otherwise is, on all of the evidence before Richards SDP, could he be satisfied of the relevant matters.
PN308
DEPUTY PRESIDENT ASBURY: Well, what other evidence was there besides the forms that the parties had filled in?
PN309
MR MURDOCH: Well, it was the forms. One has to look at the forms in their totality, as opposed to simply one box that was ticked or wasn’t ticked.
PN310
DEPUTY PRESIDENT ASBURY: Okay.
PN311
SENIOR DEPUTY PRESIDENT DRAKE: I know that you say, Mr Murdoch, that we have to look and, depending on where we get to, we have to look at whether the member determining this was satisfied, and if he was, and there was material on which he decided that’s right, but because this matter is possible that it could be a matter that this Bench has to look at, I think it’s appropriate that we put matters that concern us about the clauses directly to you, in case that is the manner in which we deal with it.
PN312
So whilst we seem to be putting matters to you that, on your best submissions, might not arise, if we accept them, there are other issues that might arise if we don’t.
PN313
MR MURDOCH: I’m content to deal with any matter that the Bench raises.
PN314
SENIOR DEPUTY PRESIDENT DRAKE: Which is why we keep talking about clause 7 as being not an exclusive list. Anyway, I think you’ve said as much as you can say about that, unless you’ve got something else to add.
PN315
MR MURDOCH: I’ve said as much as I can say about it.
PN316
SENIOR DEPUTY PRESIDENT DRAKE: Yes. I understood that.
PN317
MR MURDOCH: Can I then move to deal with the matter of explanation which we’ve already canvassed to a degree. Just bear with me while I turn something up. Again, the point I make about explanation is that there has to be consideration of what was in the evidence before the Commission at first instance. And I should say, when I say what was in evidence before the Commission at first instance, that’s not to say that these matters aren’t relevant to the Bench, but given that this is an appeal, it’s got to be shown that what occurred at first instance was wrong.
PN318
So it is relevant to go back to what was before the Commission at first instance. Now, in respect of the matter of explanation, if one tracks through the legislation, section 180(5) which deals with this explanation, is relevant because of the provisions of section 188. If one turns to section 188, what is required there is for the FWC to be satisfied that the matters inter alia in sections 180(2), subsection (3), were complied with.
PN319
Now, in respect of explanation, when one goes to section 180(5), what is said there is the employer must take all reasonable steps to ensure that (a) and (b). So the requirement is that the FWC must be satisfied, and in my submission, satisfied on the material put before the Commission, that section 180(5) had occurred and what’s required are reasonable steps.
PN320
If one turns to the evidence that is present in this case, in my submission, the SDP was able to be satisfied that reasonable steps had been taken, and the cases say that what’s reasonable, not surprisingly, has to be considered in respect of the circumstances. One of the circumstances here, of course, is in terms of what level of explanation is required to be given, is that at each worksite the cohort is quite a small one. There’s three at one worksite, 11 at another.
PN321
The other matter, of course, is the impact of the agreement that is to be approved. Now, I’ve taken you through why it is in my submission that the impact was knowable and I repeat that we still have not heard from the CFMEU what are these terrible effects that arise in respect of the BOOT. So that’s part of the context; what’s the impact? Now, when one goes to look at the evidence in respect of this point - can I ask you to go firstly to the Cairns forms and go to page 87 of the appeal book.
PN322
In respect of Cairns, of course, there are three employees. What’s set out at 2.6 in respect of the explanation is that the company met with the employee representatives, discussions took place concerning the terms and conditions of the agreement, information was circulated back to the employees via the employee representatives, and then if we go to 2.7, the company ensured that the employee representatives understood the terms and conditions of the agreement.
PN323
So certainly more detail could have been provided, but on its face, in my respectful submission, there’s nothing to indicate that reasonable steps haven’t been taken. Similarly, if one goes to Townsville, there were 11 employees, going to clause 2.6. On 5 November, a detailed verbal explanation of the EBA’s terms and how they affect the employees was given. The employees were given the opportunity to ask questions if they were uncertain with the explanation, and then 2.7 - I’m sorry, page 89 of the appeal book. Then 2.7, no particular hurdles identified, et cetera.
PN324
So again, particularly in respect of Townsville, there’s nothing there that would cause a member of the Commission to form the view that reasonable steps weren’t taken, and again, this is not a situation where there’s been any evidence put forward to Richards SDP or sought to be put forward to Richards SDP from anybody in respect of somebody who couldn’t understand or wasn’t told. There’s nothing. So he had that particular evidence before him, and in my respectful submission, that was sufficient.
PN325
I’m just noting the time. I’m content to keep going, subject to it being satisfactory to the Bench.
PN326
SENIOR DEPUTY PRESIDENT DRAKE: Mr White, are you comfortable for us to keep going without a break?
PN327
MR WHITE: Yes, if that’s convenient to the Commission.
PN328
SENIOR DEPUTY PRESIDENT DRAKE: I think that we’re in the full swing of this argument, and it would be inconvenient to interrupt. Thank you.
PN329
MR MURDOCH: Thank you. Can I just deal, before I depart from the matter of explanation, with the issue that’s raised by my learned friend in respect of what Richards SDP said at paragraph 31 of his reasons, where it seems to be suggested that the test was somehow inverted. If I ask you to go to the Townsville appeal book, to go to paragraph 31, this really goes to the point that I just made a moment ago.
PN330
In my respectful submission, it would be a very overzealous and overscrupulous reading of paragraph 31 which would lead to a conclusion that his Honour was somehow reversing the onus in respect of section 180(5). That’s clear where, in the second sentence, it says, “That is, after all, the relevant test”, but then it goes on, “Not whether the steps taken resulted necessarily in a perfect understanding of each term of the agreements and the effects of each term.”
PN331
It’s clear from what’s said in the second sentence that his Honour was considering whether, on the evidence before him, the employer had taken all reasonable steps, and he’s simply making the observation, with respect, as I made to this Bench a moment ago, that in the evidence before him there’s no suggestion from any employee or anybody else that reasonable steps weren’t taken.
PN332
SENIOR DEPUTY PRESIDENT DRAKE: Well, let me put this to you. The operation of this agreement is relatively complicated in terms of what are the matters you consider for the BOOT.
PN333
MR MURDOCH: Yes.
PN334
SENIOR DEPUTY PRESIDENT DRAKE: These persons are persons working in this industry, not high tech industrial advocates’ employment. They’re complicated terms, they require some thought as to how they operate, and do you think it requires any more than an assurance in a statutory declaration with no other information provided for a member to be satisfied in circumstances such as these? Is that enough?
PN335
MR MURDOCH: In my respectful submission, in the circumstances of this case, yes. Because as his Honour noted in his decision, the statutory declaration that’s been given has been given under oath, particularly in respect of Townsville. Not diminishing what’s said in respect of Cairns, but particularly in respect of Townsville, it’s broad, but it’s also obvious what it says, a detailed verbal explanation. The employees were given the opportunity ask questions if they were uncertain with the explanation.
PN336
So on its face, and I don’t say “on its face” to disparage it, but on its face, it can’t be said that reasonable steps weren’t taken. That’s particularly in the context where not a word has been put before the Commission below or sought to be put before the Commission below as to anyone being in any way unsatisfied with the explanation. There’s no employees coming forward saying, “Look, we didn’t understand it before we voted.” By absolute majority - I withdraw that, unanimously, at each work site to make the agreement. No hint of anything to that effect.
PN337
SENIOR DEPUTY PRESIDENT DRAKE: No employee came forward, no.
PN338
MR MURDOCH: No.
PN339
COMMISSIONER BOOTH: Just on that point, Mr Murdoch, if we’re relying on 180(5), the explanation in relation to reasonable steps goes on to talk about types of employees and the last one refers to 6(c), employees who did not have a bargaining representative for the agreement.
PN340
MR MURDOCH: Yes.
PN341
COMMISSIONER BOOTH: So I’m just wondering if you wanted to make any comments about that because it’s a bit unclear to me whether there were bargaining representatives or not.
PN342
MR MURDOCH: Well, can I deal with Townsville first. In respect of Townsville, the evidence is, if we go to the form, 18A, that’s at appeal book page 81. In respect of Townsville, Mr Garrow, he ticks “yes”.
PN343
COMMISSIONER BOOTH: Ticks “yes”, yes.
PN344
MR MURDOCH: So there was a bargaining representative there, according to the form 18A. In respect of Cairns ‑ ‑ ‑
PN345
COMMISSIONER BOOTH: That’s the confused one.
PN346
MR MURDOCH: In respect of Cairns, that’s the one that’s a bit unclear, but at the least, Mr Peterson, who is a leading hand, I note, is stating that he represents employees so - and then of course, as we’ve seen in the F17 for Cairns, the explanation, the company met with employee representatives, discussions took place, information taken back to the employees via the employee representatives. Bearing in mind, there’s only three employees the subject of the Cairns Agreement, and then at 2.7, “The company ensured that the employee representatives understood the terms and conditions of the agreement.”
PN347
So, in my respectful submission, insofar as the provision that you’ve taken me to is relevant, on the material, there has been involvement of employee representatives in respect of both agreements, and in respect of the explanations. So we don’t have a situation here where - which is perhaps where the Commission was going - there were employees literally on their own.
PN348
COMMISSIONER BOOTH: It may be that the smaller the workforce, though, that there are very few people who can explain, and I get what you’re saying, is that three people, there can be a direct conversation, but there can also be a bargaining rep who - well, in one case we’re not sure whether there was a bargaining representative, and so as I said, I don’t know where the numbers of people - and it doesn’t seem to be something that the Act takes into consideration - assists in reasonableness at all.
PN349
MR MURDOCH: Well, can we put aside the issue of - I know you’ve taken me to the bargaining representative, but what the evidence does show is that there are people identified as being employee representatives who are directly spoken to by management, and it does say that the company ensured, 2.7, that the employee representatives understood the terms and conditions of the agreement.
PN350
DEPUTY PRESIDENT ASBURY: So it might be that 2.4, where it’s the employee representative is a type because they’ve left the “s” off ‑ ‑ ‑
PN351
MR MURDOCH: I beg your pardon, Deputy President, which ‑ ‑ ‑
PN352
DEPUTY PRESIDENT ASBURY: Page 194, the appeal book, with respect to the ‑ ‑ ‑
PN353
MR MURDOCH: That’s Townsville.
PN354
DEPUTY PRESIDENT ASBURY: Cairns.
PN355
MR MURDOCH: No, with respect, you’re looking at the earlier F17.
PN356
DEPUTY PRESIDENT ASBURY: Okay. Where’s the later ‑ ‑ ‑
PN357
MR MURDOCH: The later one is at page 84. The material one begins at page 84.
PN358
DEPUTY PRESIDENT ASBURY: Right. Okay. But it’s still got the same - okay, page 86, a meeting was held with the employee “representative”, and then in 2.6 and 2.7, it’s “representatives”.
PN359
MR MURDOCH: Yes. Well, there’s only three employees.
PN360
DEPUTY PRESIDENT ASBURY: So you say there’s sufficient evidence there upon which the Senior Deputy President could have been reasonably satisfied that they just sat down with all three of them and talked to them?
PN361
MR MURDOCH: Well, particularly when one looks at 2.7, whether one - even if one reads “employee representative” in 2.6 and 2.7 in the singular, consistently with 2.4, as you’ve pointed out to me, there’s still evidence of the company meeting with an employee representative, discussions taking place, and the employee representative taking information back to the employees and in 2.7, the company ensured that the employee representative understood the terms and conditions of the agreement.
PN362
So we’ve got a situation whereby there’s evidence of discussion and ensuring of understanding with the employee representative, who then takes matters back to the employees. Can I then move to deal with the next point, that being the compliance or otherwise with section 180(2). Again, section 180(2) is relevant due to the requirements of section 188(a), so the Fair Work Commission must be satisfied that the requirements of section 180(2) have been complied with.
PN363
As your Honour, DP Asbury raised with my learned friend before, there are two limbs, two alternative limbs, to section 180(2). There is the limb that deals with employees being given a copy of materials, and there is the limb that deals with employees having access to materials. Can I just deal with Cairns and Townsville in that regard.
PN364
If I take you to the Cairns F17, it begins at page 84, the steps that are set out as having been taken were a draft copy of the proposed agreement was tabled and discussed, so I’ve given a copy of the draft. It was reviewed by employees and a copy of the agreement was handed to each employee. So insofar as section 182 is concerned, there seems to be no doubt that in terms of the agreement the employees got a copy, or received a copy, and so therefore there was compliance with 182(a).
PN365
Now, in respect of material incorporated by reference in the agreement, as is apparent from the discussion that occurred between the Bench and my friend earlier, a modern award is something to which people clearly have access and there’s been nothing said to indicate that if in fact the code is incorporated and, in my submission, the code is not incorporated, or the compliance instruments are not incorporated, they’re simply referred to in clause 7 and they are matters that relate to the interpretation of clause 7 as opposed to being incorporated by clause 7.
PN366
But even if it was to be considered that the compliance instruments were incorporated, there’s been nothing said in this appeal that indicates that people can’t obtain a copy of those instruments, that they’re not publicly available, so in my submission, again, on the material before the Senior Deputy President, he was able to be satisfied that reasonable steps had been taken in compliance with 180 in respect of Cairns and in respect of Townsville, the only additional point that I’d make is that in respect of Townsville it’s also stated that copies of the award are available on site.
PN367
Can I just, before I move on to the next point, take the members of the Bench to the McDonald’s decision that is referred to in the written submissions, and also is in the bundle. It’s tab 17. That’s a Full Bench decision. Can I ask you, please, to go to paragraphs 42 and 43. The Full Bench there notes that in respect of access, that that will particularly relate to documents that are not otherwise in the public domain, which in my submission is not the case here. Then in paragraph 43, there’s a discussion there as to whether the South Australian Long Service Leave Act was incorporated as opposed to the NES.
PN368
Now, it was found that the NES wasn’t incorporated, the South Australian Long Service Leave Act was and that was because of the location to which the agreement applied. If the South Australian Long Service Leave Act wasn’t incorporated, then it wouldn’t have had application, being that the agreement applied to Broken Hill which was an area that the South Australian Long Service Leave Act didn’t apply. So it was held that because the Long Service Leave Act was incorporated, that it was something that people had to be given access to, and then their Honours go on to say:
PN369
The laws of the land are available to Australian citizens in a variety of ways.
PN370
So, in my submission, where something is publicly available, on the basis of the McDonald’s decision, one can’t find that the Commission couldn’t be reasonably satisfied that people had access to it, and in my submission, that’s the case clearly in respect of the award. It’s also the case in respect of the compliance instruments. There’s nothing to indicate that those instruments aren’t publicly available.
PN371
Can I then deal briefly with the assertion that there was no genuine agreement. I’ve referred the Full Bench in the written submissions to the Inco Ships Pty Ltd decision. I don’t ask you to open that up, but the simple point that I make in respect of the question of genuine agreement is that it really is, in my submission, an exercise in speculation because if you’re with me in respect of clause 7 being knowable, whether one takes into account here that there’s the stat decs in respect of what was explained, there’s the fact that there were employee representatives in place, and there’s the fact that in respect of each of the agreements, there was unanimous support.
PN372
Again, nothing was put before Richards SDP to suggest that, as a matter of fact, any of the relevant employees didn’t genuinely agree. So it’s the realm of speculation that there mightn’t have been genuine agreement and speculation is, as was expressed in the Inco Ships’ decision, not a sufficient basis to find there’s been no genuine agreement.
PN373
Can I then move on to deal with the last issue that seems to be relied upon, and that’s in respect of the voting that occurred, or the notification of the vote, to be more specific. That doesn’t appear to be an issue raised by the applicant in respect of Townsville, but it seems to be particularly raised in respect of Cairns. Now, can I ask you to go to the Cairns appeal book. In particular, could I ask you to note what’s at 2.5, page 86 of the appeal book.
PN374
Now, at 2.5, there’s evidence given in respect of the action taken. The first point is there’s no issue arises in respect of the action being taken within the access period because the advice was given on 30 October and the vote occurred on 10 November. The CFMEU, in their submissions, raise a hearsay point in respect of what is said in the F17, but in reality, there is no hearsay point for two reasons.
PN375
Firstly, in my submission, it’s common in these types of matters for hearsay matters to be accepted, but in any event, the person who is said to have provided the advice, Mr Peterson, has himself given a stat dec, which is the form 18A, in which he says he agrees with what’s in the F17. So there’s no hearsay issue in respect of what Mr Peterson did. That’s accepted. So what occurred? Bearing in mind, of course, that we only have three employees, Mr Peterson advised all the relevant employees that a vote would be taking place on 10 November 2014.
PN376
So, they’re told by a leading hand. Now, there was a comment made that the employer didn’t inform. Well, the employer can only act through people. They’re told by a leading hand that a vote would take place on 10 November 2014. Then we see it was voted on by a show of hands at a meeting held on the site on 10 November 2014. Now, as I’ve laboured, there’s only three employees and the vote was unanimous, so we infer from that, that the people who voted on 10 November (a) all were present for the vote;(b) all took part in the vote.
PN377
So it’s difficult in those circumstances to infer that the people who voted weren’t apprised of the method of voting and weren’t apprised of the time of voting, and it’s certain that they were apprised of when the vote would take place. In my submission, it would be extraordinary to hold that the Commission couldn’t be satisfied of the notification matters in respect of the vote in a case such as this where the only people who could vote did vote and voted unanimously.
PN378
Can I next then deal with the last point that’s sought to be raised in respect of adequacy of reasons. In my submission, when one looks at or analyses the reasons that were given, it’s lucidly clear that in terms of his Honour’s reasoning, one has to look at both the approval decision of 19 January and also the interlocutory decision of 14 January. When one looks at the interlocutory decision, his Honour dealt with, in essence, two matters, one being the issue of right to be heard where, as I’ve submitted, he found against the CFMEU and there’s been no appeal about that, and the second part of it deals with the various objections.
PN379
In my submission, when one looks at, in particular, paragraphs 5 and 6, 7, 8, 9, 10, 9 and 11, and then paragraphs 27 to 44, there are clearly adequate reasons in respect of the relevant matters that needed to be considered by the Senior Deputy President, in particular in respect of the matters that were sought to be impugned by the CFMEU. So it’s not a case where there has only been an approval decision of four paragraphs. It’s got to be read in context of the various submissions that were made and then the decision, over some 30 or so paragraphs, deals with the various matters that are apparently the subject of objection.
PN380
Just in that respect, can I just ask you to note what was said at paragraph 84 in the Collinsville decision that’s in the bundle. I just commend to the Bench the discussion there by the Full Bench in the Collinsville matter as to what’s required in respect of adequacy of reasons. There’s an extract there from Barach v University of New South Wales and what’s required in respect of adequacy of reasons. In my submission, the test set out there was complied with here.
PN381
In my respectful submission, can I then move from the matters of substance, unless there are any further matters you would like to raise with me, to deal with the question of leave to appeal, and then finally can I address you, in the event that you’re against me, the question of disposition of this appeal. In respect of leave, I’m content to rely upon what I’ve said in the written submissions. There’s nothing orally that I can say about that, that I haven’t said there, unless there’s a particular matter that you wish to raise with me.
PN382
Can I then deal with disposition. There’s two points that I want to make about disposition in particular. The first point, and this is an obvious one, that there are two appeals and there are two agreements and they have to be considered on their respective merits. Without making any concessions, of course it may well be that there’s a particular matter that might trouble the Bench in respect of one agreement that doesn’t apply to the other, so in that case, obviously, there might be a certain course taken with one, but that course couldn’t be followed with the other.
PN383
The second point that I’d make is this, again without making any concessions, that in my respectful submission, given the type of matters that have been agitated before this Full Bench, that in the event that you were to find that the CFMEU had standing and in the event that you were to then find that there was an error in the application of the various tests that must be applied prior to an agreement being approved, this is a particularly apt case for it to be remitted back to Richards SDP, as opposed to this Bench dismissing the application because all of the arguments are to do with questions of evidence, questions of steps that his Honour should or should not have taken in respect of approval.
PN384
So, in my submission, if you were to be against me, it should be remitted back to Richards SDP for there to be further consideration with the benefit of the comments of the Full Bench. Unless there is anything particularly further, they are my submissions.
PN385
SENIOR DEPUTY PRESIDENT DRAKE: Thank you, Mr Murdoch. Mr White?
PN386
MR WHITE: I won’t necessarily deal with everything in precise order, I might jump around, but hopefully not too much. In terms of the question - I’ll paraphrase your Honour, SDP Drake, about the question you asked my learned friend before the short break, which is, how can an expression of legislative intent override an award, which is one aspect, as I understood your Honour’s question, and we say, well, clearly we say an expression of legislative intent cannot override an award.
PN387
To the extent that - I’ll perhaps deal with this later. To the extent that the expression of legislative intent might have been explained to the employees such that absent it having legislative effect, it still nonetheless has some impact or effect within the meaning of the agreement - we’ll come to this later - there’s certainly no explanation or no evidence of explanation as to the intricacies of the operation of the code or that particular compliance document.
PN388
Your Honour raised questions as to whether or not there might be undertakings. My learned friend hasn’t addressed that and the disposition in the event that we were successful, he suggests, that it’s not to do undertakings. We think undertakings wouldn’t - other than perhaps in relation to particular issues of BOOT, not be applicable here because the complaints we make effectively are preapproval steps which can’t be remedied by undertakings as to prospective effect.
PN389
DEPUTY PRESIDENT ASBURY: Some of them might just be errors in the statutory declarations.
PN390
MR WHITE: Well, if they’re errors which ‑ ‑ ‑
PN391
DEPUTY PRESIDENT ASBURY: Which at first instance, well, my practice would be to ask the parties whether that’s what they intended.
PN392
MR WHITE: Yes.
PN393
DEPUTY PRESIDENT ASBURY: Have they made an error with a date or a ‑ ‑ ‑
PN394
MR WHITE: The learned Senior Deputy President did do that in respect of the time in which the employees had the agreement in Cairns and subsequent amended application and statutory declaration were filed in that regard, but if there’s an error, for example, in respect of adequacy of explanation, then that’s an error - sorry, that’s a failure to comply with a preapproval step, that’s a jurisdictional fact, and the appeal should be allowed.
PN395
Now, if there’s a subsequent application relying on - sorry.
PN396
SENIOR DEPUTY PRESIDENT DRAKE: Sorry, I can’t hear you. I don’t know if it’s the air conditioning or my cold, but you need to speak up a bit.
PN397
MR WHITE: Yes, I’m sorry, your Honour. We say the errors, other than perhaps particular applications with particular aspects of BOOT are preapproval errors, they’re jurisdictional fact errors and the appeal should be allowed. They’re not remediable by undertakings if the matters - if the appeal is allowed, there are a range of steps; you can dismiss the application or uphold the appeal and dismiss the application, in which case no doubt a new application could be made, or if it was remitted to be heard by another member, we don’t think it’s appropriate that Richards SDP hear it, given that he’s made findings of fact about evidence, then once again, it would be fixed up, but not remediable by undertakings.
PN398
Can I make a general observation about section 180(2), and in relation to the McDonald’s case. Section 180(2) was, I think, said by my friend to have been complied with in that a number of these documents were otherwise available on the Internet or elsewhere. AS I understood the argument, I think my learned friend says you could not be satisfied that people couldn’t get access to the document. With great respect, that actually doesn’t correctly reflect the effect of either section 180 or McDonald’s.
PN399
Section 180(2) doesn’t direct the attention of the Commission to the question of whether or not documents were otherwise accessible. It directs the Commission’s intention to whether the employer took all reasonable steps to ensure that they were accessible. Questions of accessibility include not only the existence of something, for example, in the Cloud or on the Internet, but knowledge of where and how to get to it and knowledge of advice that it’s available and perhaps even knowledge of the ways in which an employee is able to go about getting it.
PN400
McDonald’s case has to be understood in the context of that case. One of the important things about that case is to contrast what was before the Commission in that case with what wasn’t before the Commission in this case. The Full Bench at paragraph 32, page 165 - this is in relation to adequate explanation, but nonetheless instructive, says:
PN401
Considering the evidence for ourselves, we are satisfied that the employer took reasonable steps to ensure the agreement was explained to the employees. The documents produced by the SDA and McDonald’s were comprehensive and detailed.
PN402
MR WHITE: So that’s the context in which McDonald’s case was being considered. The parties, both parties, put before the Bench the comprehensive and detailed material which had been provided to the employees. So bearing that in mind, when you go to paragraphs 42 and 43 on page 167, they’re talking about documents not otherwise in the public domain, and talk about in paragraph 43 the laws of the land are available to Australian citizens in a variety of ways, and they go on:
PN403
We find that the employer was not required to take any further steps to ensure the relevant employees had access to the South Australian legislation.
PN404
So that proposition is limited in terms to the facts before the Full Bench in that matter and those facts included detailed explanations. In our submission, the Commission does not - sorry, those paragraphs do not stand for the proposition that because things are accessible on the Internet or at the public library or elsewhere, writing to Aunt Nelly, that the employees have access to them. That was a specific finding in the specific context and it is probably unsaid in paragraphs 42 and 43 that the employer had taken the specific steps, had taken reasonable steps.
PN405
If 42 and 43 were to be understood in isolation from the earlier steps taken by the employer to explain and to inform - if those paragraphs, in isolation, are taken alone, there might be some basis for an argument that they stand for the proposition that if they’re in the Internet and available in a variety of ways, that’s good enough. We say they shouldn’t be taken alone. If they were to be taken alone, then we say that the Full Bench is wrong because the primary obligation in section 180 is for the employer to make available and make sure they’re available. But we don’t think the Full Bench is wrong, once understood in the context of the earlier findings.
PN406
I said in opening that underpinning our case was the complexity of the agreement and once again, we emphasise that the first part of clause 7, when one calls up the award and it becomes part of the agreement, my learned friend cavils with that, but we say the terms of that clause 7 are clear. The next part of clause 7 thereafter seeks to exclude matters of a certain type from the agreement, so there’s an internal inconsistency and that inconsistency is informed by clause 11 and clause 11A of the code which require a great deal of specific consideration and of some complexity which you’ve heard our submissions about adequacy of explanation.
PN407
As to whether there’s genuine agreement, my learned friend relies on the matter of Inco Ships. One of the specific matters in Inco Ships which appealed to the Full Bench was the clarity with which the benefit of the agreement or the documents incorporated in the agreement were described, and we say that clarity is significantly lacking in these matters. In terms of the method of voting, our complaint in relation to the Cairns agreement isn’t that there is hearsay about what was done, but fundamentally, the problems with noncompliance with section 180(3).
PN408
So it’s clear enough on the face of the documents that it was an employee, Mr Peterson, who determined what the voting - the men and how the voting would occur. Mr Peterson might be a leading hand, but he was not acting as an employer; he’s an employee subject to this agreement and in these circumstances, acting as an employee. I’ve already said that regardless of whether they were apprised of the method of vote, the obligation is on the employer to determine that such the employer is able to determine - sorry, advise the Commission properly.
PN409
In terms of adequacy of reason, can I say this; the decisions the subject of the appeal are the two decisions to approve the agreement because they’re the operative decisions. We set out in the chronology in each of the appeals it was understood and in fact expressly stated by the Senior Deputy President that the earlier decisions were by way of interlocutory or interim - interlocutory decisions and as such, not necessarily a formal from which an appeal could be brought.
PN410
We haven’t appealed from those two interlocutory-type decisions. Faced with the Full Bench decision in Collinsville which his Honour applied and so we distinguish Collinsville. It may be, in a real world, that we should look at both decisions together to look at the reasons of his Honour. As a matter of form and as a matter of legality, there’s only one appealable decision in terms of approval of the agreement, but I think we’ve said in our written submissions if the Commission was to look at the earlier decision to incorporate those reasons, then we would seek leave to appeal from those decisions as well.
PN411
To the extent that the respondent relies on the earlier reasons, we wouldn’t anticipate that there would be any opposition to that course. If you just bear with me. Can I say this - there’s only a few more matters, if the Commission please. It’s not part of the CFMEU’s case that agreements can’t have ambulatory clauses contained within them, within the meaning of section 257. That’s not part of our case. I think we made that explicit in the written submissions.
PN412
Our problem is the question of certainty with which the ambulatory clauses in this case are included. In terms of the BOOT and the test time at which the BOOT is to be applied, section 193 provides that section 190 - yes, 193, provides that test time as being the time relevantly when the agreement is to be approved, but that, we say, does not mean that the Commission is limited to determining the BOOT on a snapshot in time. It has to perform the role of assessing the BOOT but it is, we say, a role which is broader than an assessment of why it’s on a particular day.
PN413
So when you look at section 193, subsection (1) talks about the test time, so an enterprise agreement that’s not a greenfields agreement passes the better off overall test under this section is the Commission is satisfied, as at the test time, that each award-covered employee and each prospective employee - each prospective award-covered employee, would be better off overall if the agreement applied to the employee.
PN414
So the Commission is applying the test at a particular time, but in respect of a prospective effect. The prospective effect in this case is adversely affected by an unknown operation of an administrative act under an unpassed piece of legislation.
PN415
DEPUTY PRESIDENT ASBURY: Does it mean that, or does it mean that when you’re talking about a prospective employee, take the case of an agreement that is made with a small number of employees, which we’ve had plenty of those lately, and the small number of employees are employed in one or two classifications and the agreement contains 10 other classifications and no one is employed in them at the time, isn’t that what that prospective thing is directed at?
PN416
You have to be satisfied that for any employee that could be employed in any of the classifications, at the test time, there - so you couldn’t have higher level classifications or classifications that some people are not currently employed in, and just say, “Well, it doesn’t matter because no one’s employed in that classification at this point”?
PN417
MR WHITE: Understand that, and it certainly covers that situation, but we say that’s not limited to that situation.
PN418
DEPUTY PRESIDENT ASBURY: Okay. Are you aware of an authority where that has been specifically dealt with?
PN419
MR WHITE: No, I’m not, but ‑ ‑ ‑
PN420
DEPUTY PRESIDENT ASBURY: Because why does the section to go such great lengths to specify a test time if it doesn’t have some meaning?
PN421
MR WHITE: It has a meaning; you assess on a particular day, but you may also be able to assess on that particular day the prospective effect of the agreement. So if the prospective effect of the agreement, within the terms of the agreement, is so uncertain, for reasons ‑ ‑ ‑
PN422
SENIOR DEPUTY PRESIDENT DRAKE: So for instance, Mr White, if your annual leave entitlements on the date of the test time are of a certain level, but by the operation of the clause during the course of the agreement, prospectively viewed, they might be reduced to a level which might affect the overall BOOT, that might be a prospective matter you consider?
PN423
MR WHITE: Yes. It might be. My learned friend makes the submission that there is no difficulty in terms of understanding what the agreement is because you can compare the award, the agreements and the compliance instruments, anyone can do that, and the submission was made that there’s nothing to suggest that Richards SDP did not do that. The appeal books contain all the material that was before Richards SDP in each of the matters, and there is no material there about the compliance documents or the codes.
PN424
So unless the Senior Deputy President considered material and not informed the applicant or not informed the CFMEU whilst the submissions about the substantive matters were being made, then we don’t think that submission can be made good. Behind all of these things, including the preapproval matters, is that the Commission must be satisfied of particular matters. Questions of satisfaction are, we say, jurisdictional facts.
PN425
As to what satisfaction means, I referred you before to Australian Postal Corporation v D’Rozario, perhaps in particular in respect of satisfaction, can I particularly refer the Commission to paragraphs 10 and 11 and Buck v Bavone is one of the earlier cases after Hetton Bellbird Collieries, and there’s a discretion, two types of discretion, discussed by Gibbs J in Buck v Bavone. He said:
PN426
Where the authority is required to be satisfied of the existence of particular matters of objective fact
PN427
That is, for example, adequate explanation, for example:
PN428
The position may be very different. It may then be possible to show clearly not only that the material facts existed but that an authority acting in accordance with its duty could have reached no other conclusion than that they existed.
PN429
So the question of satisfaction is, we say, of the type where matters of objective fact need to found and they are to be found, if found at all, on the basis of objective evidence. So when you look thereafter as to the preapproval matters, we say that the material before the Commission is not such as to permit the requisite satisfaction. As to whether or not there was reasonable explanation, my learned friend submitted that depends on a range of circumstances. Of course, that is so. The size of the cohort, we say, doesn’t necessary improve my learned friend’s position. There is a small cohort, the less diversity of employees who may be able to take on particular roles.
PN430
But the context, yes, it is obviously a matter to be taken into account in determining whether or not reasonable explanation and my learned friend says, well, we shouldn’t be too zealous in looking at whether or not there was sufficient evidence. We shouldn’t be overzealous about examining the Senior Deputy President in paragraph 31 of the interlocutory decisions, but the context includes, we say, the context, the meaning and the different interpretations of the meaning of the agreement, the absence of the provision of the documents, the draft nature of the code, the inconsistent and changing statutory declarations which were before the Commission.
PN431
In that context, we say that the Commission should be careful to examine the adequacy of the explanation which really is just a conclusionary - sorry. All that’s before the Commission and before the learned Senior Deputy President was really a conclusionary statement and we explained it. It doesn’t say how, so we don’t think we’re particularly being overzealous in challenging that aspect of the approval decision.
PN432
My learned instructor reminds me just in relation to this confused state of affairs at Cairns in relation to bargaining representative, I just remind the Commission the other document relevant to that is the application filed by the employer which also says there was no bargaining representative, so it’s not just the confused statutory declarations in respect of that. If the Commission pleases.
PN433
SENIOR DEPUTY PRESIDENT DRAKE: Thank you. The Commission will reserve its decision.
ADJOURNED INDEFINITELY [2.16 PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
EXHIBIT #CFMEU1 SUBMISSIONS IN TOWNSVILLE SAIL CENTRE AGREEMENT................................................................................................................................... PN38
EXHIBIT #CFMEU2 SUBMISSIONS IN CAIRNS AGREEMENT............... PN38
EXHIBIT #CFMEU3 BUILDING AND CONSTRUCTION INDUSTRY (FAIR AND LAWFUL BUILDING SITES) CODE 2014 ADVANCE RELEASE................................. PN52
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