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C2015/1481, Transcript of Proceedings [2015] FWCTrans 252 (22 April 2015)

TRANSCRIPT OF PROCEEDINGS


Fair Work Act 2009                                    1051706-1

JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT

DEPUTY PRESIDENT GOSTENCNIK
COMMISSIONER BLAIR

C2015/1481

s.604 - Appeal of decisions

Australian Municipal, Administrative, Clerical and Services Union v TAB Agents Association (SA Branch) Inc.
(C2015/1481)

Melbourne

10.08AM, TUESDAY, 14 APRIL 2015


PN1

JUSTICE BOULTON: Good morning. Can we have appearances, please?

PN2

MR Y BAKRI: If the Commission, please, my name is BAKRI and I seek permission to appear on behalf of the ASU.

PN3

MR T BRYANT: May it please the Commission, BRYANT is my name and I appear for the respondent association and I also seek permission of course to appear before this Commission.

PN4

JUSTICE BOULTON: Thank you.

PN5

MR A McNAB: My name is McNAB and I seek permission to appear on behalf of the intervenor, Pomarla Pty Ltd.

PN6

JUSTICE BOULTON: Yes. Now, I understand that there's no objection by any party to the applications for permission to appear and written submissions have been filed in relation to those applications. So on the basis of what's in those written submissions we will grant permission to appear in each case.

PN7

Now, at the outset, I should indicate that Blair C is not able to sit with us today because of some medical issue and we've raised it with the parties as to whether or not there would be any objection to the Full Bench proceeding with the hearing of the matter today as scheduled on the basis that Blair C has received all the materials which have been filed and will be able to read the transcript of the proceedings today and participate as a member of the Full Bench in reaching any decision in this matter. Now, is there any objection to us proceeding on that basis?

PN8

MR BAKRI: Your Honour, there's no objection from my client.

PN9

MR BRYANT: No objection from my client, may it please the Commission.

PN10

Mr McNab: No objection, your Honour.

PN11

JUSTICE BOULTON: Thank you. Now, I think the next issue is Mr McNab, you're seeking to intervene in these proceedings.

PN12

Mr McNab: Yes, your Honour. We're seeking to intervene. I understand there's no objection to the intervention on the basis that the submissions are restricted to the point in relation to the BOOT test as it applies to people in off-course agent type roles. But there is an objection to making any submission in relation to the issue as to whether the jurisdictional prerequisites for the making of the agreement have been met; that is, whether the timeframes have been met.

PN13

In response to that objection to intervening in respect of that first issue, what I would submit is that the interests of the intervenor is to preserve the decision of Bull C and if the intervenor can make relevant submissions, which go to preserving that decision, well, the intervenor has an interest in doing that as a person aggrieved.

PN14

I am not proposing to make submissions that have already been made, if they are already made by Mr Bryant, but if there is a point which is relevant which would assist in preserving the decision of Bull C, then in my submission leave should be granted to intervene in order to make those submissions, whether it be in relation to the BOOT test or in relation to the procedural steps point. But I stress that I have no intention in doubling up on submissions that have already been made.

PN15

JUSTICE BOULTON: Thank you. Mr Bakri.

PN16

MR BAKRI: Your Honour, the appellant maintains its objection to leave being granted in relation to the pre‑approval requirements ground. The objection is made on the basis that the intervenor simply does not have any interests which could be affected by the question of whether the respondent to this appeal complied with the pre‑approval requirements when seeking to have the multi‑enterprise agreement in question approved.

PN17

Whilst it is accepted that the intervenor does have an interest in findings which are made about the operation of the Retail Award, the Clerks Award and how those instruments interact or operate, rather, in the industry in which the intervenor conduct its business, it does not have the relevant interest in relation to the pre‑approval requirements.

PN18

JUSTICE BOULTON: I don't think, as it were, the procedural issues are raised in the outline of submissions that have been filed by and on behalf of - what is it - Pomarla?

PN19

MR BAKRI: Correct. That is so, your Honour. That is my understanding. Likewise the application for leave for Pomarla to be represented by a lawyer and the application for leave to intervene does not refer to the pre-approval requirements issue either.

PN20

DEPUTY PRESIDENT GOSTENCNIK: Mr Bakri, wouldn't a convenient course simply be this: that if Pomarla wants to make submissions about the pre-approval processes if it feels that it's necessary for it to make those submissions. It might at that time outline what they are and we can determine whether or not permission is granted then, rather than wasting time now on that issue.

PN21

MR BAKRI: We wouldn't cavil with that course, your Honour.

PN22

JUSTICE BOULTON: Good, thank you, Mr Bakri. Mr Bryant.

PN23

MR BRYANT: I have no submissions to make on that question of intervention

PN24

JUSTICE BOULTON: You don't want to make any submissions in relation to intervention?

PN25

MR BRYANT: Yes, your Honour. I don't oppose the intervention on the full basis by the intervenor.

PN26

JUSTICE BOULTON: Yes.

PN27

MR BRYANT: So that's the position and it would seem to us that the course being proposed by the courts be appropriate and we would endorse it.

PN28

JUSTICE BOULTON: We will adopt that course. We will give you permission to intervene and if you are going to seek to deal with those pre-approval requirements, the procedural issues then we will deal with the question as to whether or not we should hear those submissions at that stage. Mr Bakri.

PN29

MR BAKRI: Thank you, your Honour. If I may deal with a few housekeeping matters, the appellant has filed an outline of submissions dated 10 March 2015 and a four-page supplementary submission dated 10 April 2015. May check that you both have those documents?

PN30

JUSTICE BOULTON: Yes. I am going to mark the appellant's outline of submissions as ASU1 and the supplementary outline as ASU2.

EXHIBIT #ASU1 APPELLANTS OUTLINE OF SUBMISSIONS

EXHIBIT #ASU2 SUPPLEMENTARY SUBMISSIONS OF APPELLANT

PN31

MR BAKRI: Thank you, your Honour. Furthermore, a statutory declaration of Susan Williams which is dated 20 March 2015 was filed in support of the application for the approval of the relevant agreement.

PN32

I will make reference to that statutory declaration in the course of today's proceedings. I understand my instructor emailed a copy of the stat dec through to chambers, but I have additional copies, should they be of assistance.

PN33

JUSTICE BOULTON: Yes, can you hand them up?

PN34

MR BAKRI: Next, your Honour, the ASU has prepared folders of authorities, if I may hand those up. We will hand up three if that's appropriate, your Honour.

PN35

JUSTICE BOULTON: Yes.

PN36

MR BAKRI: The ASU mounts two challenges to the decision of Bull C, firstly that the pre-approval requirements in section 180 of the Act were not met and thus the Commission fell into error when the Commissioner became satisfied that the employees genuinely agreed to the proposed agreement.

PN37

The second challenge is that the Commissioner fell into error by deciding that the Retail Award and not the Clerks Award applied for the purposes of the Better Off Overall Test. I will commence with the first issue, the pre‑approval requirements ground. It should be stated at the outset, your Honour, that this issue was not ventilated in the hearing before the Commissioner. As such, it can be characterised fairly as a new issue.

PN38

I intend to address the Bench on why my client should be permitted to run the argument, but before I do that I think it would be of assistance if I could run through the submissions to put it all in context.

PN39

JUSTICE BOULTON: We are particularly interested in why you should be allowed to run the argument.

PN40

MR BAKRI: I am content to start there, if that is more appropriate.

PN41

JUSTICE BOULTON: Because it is a matter which if it was raised it could have been the subject of evidence and further submissions before the Commissioner.

PN42

MR BAKRI: Yes.

PN43

JUSTICE BOULTON: if it's going to be raised here then there is at least the prospect that we might need to hear further evidence in order to determine that matter, and that takes the appeal on a different course.

PN44

MR BAKRI: Yes, that's understood, your Honour.

PN45

JUSTICE BOULTON: They are pretty strong grounds for saying that there is not much public interest at this stage enough granting permission to appeal in relation to those points.

PN46

MR BAKRI: I respond to those concerns, your Honour, as follows, that the preapproval requirements ground goes to whether Bull C has acted beyond due restriction or within jurisdiction. In support of that contention, the appellant relies on the decision of McKechnie Iron Foundry which is in the folder of authorities behind tab 3.

PN47

At paragraph 10 of that decision, O'Callaghan SDP, when considering a process whereby employees had been advised of the vote and had access to an agreement, held that:

PN48

The requirements of this section are mandatory in that the section represents essential requirements for approval and there is no license or jurisdiction extended to Fair Work Australia to approve an agreement that has been made without compliance with these requirements.

PN49

As such, it is my contention that these grounds ought to be considered. It is right that it would have been more convenient had it been argued and determined at first instance, but it must be noted that the ASU during the process before, Bull C had not been served with the statutory declaration or the application and had no right to those documents.

PN50

JUSTICE BOULTON: You would have had access to them.

PN51

MR BAKRI: My understanding is that sometimes when a union makes a request for access to the documents they are provided and sometimes they are not. There is no right to those documents. It's a matter of discretion according to the particular member who is handling the matter.

PN52

DEPUTY PRESIDENT GOSTENCNIK: Well, my understanding of the procedure adopted by most chambers is that if the union is a bargaining representative then it's provided with a copy of the materials. If it's not a bargaining representative then it would need to establish why it should be given those copies.

PN53

MR BAKRI: Your Honour, I can only speak from my own experience and by analogy. There is, as I understand it, no enforceable right to access that material and I am aware of situations by analogy where they have not been provided. That is not to say that a request was made here. I am instructed the request was not made, so we don't know whether it would have been granted or not.

PN54

Rather, the point I seek to make is that the deficiencies came to light in the preparation of the appeal. It would have been ideal had they come to light earlier but they have come to light and on the basis that it's a jurisdictional issue and there's a public interest in the Commission not exceeding its jurisdiction, the Commission ought to consider this ground.

PN55

JUSTICE BOULTON: It's an issue that may well be able to be resolved by further evidence.

PN56

MR BAKRI: That is so and the Act, your Honour, provides a mechanism for the respondent, should it so wish to put on further evidence and late last week and yesterday there was correspondence between the parties and the respondent advised both the appellant and the intervenor that it intended to seek leave to adduce further evidence and then withdrew that request and advised the ASU that it no longer wished to do so.

PN57

DEPUTY PRESIDENT GOSTENCNIK: Mr Bakri, is your real point that on the face of the material before the Commissioner he could have been satisfied that the preapproval requirement, which is what I understand to be the point about what was and wasn't given to employees during the access period that it couldn't have been satisfied of that.

PN58

MR BAKRI: Indeed, that is as you say the real point which we wish to press today.

PN59

DEPUTY PRESIDENT GOSTENCNIK: That can be cured by the provision of additional evidence though.

PN60

MR BAKRI: It could be, depending on the additional evidence. It is relevant, your Honour, that on Friday a witness statement was provided to my instructor, which the respondent expressed that it wished to rely upon. The appellant then requested the provision of various documents which were referred to in the witness statement. After that request was made, the respondent advised my instructor that the respondent no longer wished to rely on that witness statement.

PN61

To explain, the witness statement that we were served with on Friday referred to various documents, including receipt documents, which were provided by the relevant employees. It could be that, depending on what is on those documents - for example they could be dated - they could contain relevant evidence. The request was put by my instructor to be provided with those documents and the respondent chose not to and said, "We no longer seek leave to adduce further evidence."

PN62

These circumstances militate in favour of leave being granted for us to run this point. They haven't been caught by surprise. They've been on notice about this issue for some time and evidence was prepared on Friday, which we now understand is no longer pressed.

PN63

If I can make one further submission in support of this application, it would seem very odd if the situation was that an application for judicial review could be made to a

PN64

court because of a failure to comply with the pre‑approval requirements, but the union was not able to ventilate this issue in an appeal. Whilst its accepted that it would have been more convenient and ideal had this issue been raised earlier, it's an issue that deserves consideration by the Commission as is the public interest in ensuring that the Commission does not exceed its jurisdiction.

PN65

JUSTICE BOULTON: Yes, but the only way we could determine it would be - to properly determine it, finally determine it in some respects would be to hear further evidence, wouldn't it?

PN66

MR BAKRI: But that's really a matter for me parties as to whether they wish to put forward further evidence or to seek leave and the appellant for its part, relies on the statutory declaration filed in support of the application for approval.

PN67

DEPUTY PRESIDENT GOSTENCNIK: Is it a matter that can be cured by an undertaking?

PN68

MR BAKRI: I'm not sure I follow.

PN69

DEPUTY PRESIDENT GOSTENCNIK: If there is concern about whether or not the employees genuinely agreed to the agreement, can that matter be cured by an undertaking? I raise that for the simple reason that at least on its face, undertakings under section 190 may be given. If the Commission has concerns about whether the agreement meets the requirements of 186 and 187, and the requirement that the Commission be satisfied that the employees genuinely agreed to the agreement appears at 186.

PN70

At least on its face it seems that concerns about "genuinely agreed" can be cured by an undertaking.

PN71

MR BAKRI: Your Honour, my client would not be attracted to that course and if the - - -

PN72

DEPUTY PRESIDENT GOSTENCNIK: That wasn't my question. The question was whether or not it can be cured by an undertaking.

PN73

MR BAKRI: Theoretically, it would appear on the face of that section, your Honour, that an undertaking could be used to cure such a deficiency. We contend that in the context where a witness statement was served and then withdrawn, and a request was made for key documents to be furnished and that has been refused, we'd be very concerned about the matter being determined on the basis of an undertaking.

PN74

I'd also say, your Honour- and we're in the Commission's hands - that another course may be that the respondent ought to be provided with an opportunity to put on a witness statement and directions could be made for that to occur. Also, orders could be made requiring the production of what appears to the ASU to be the key documents. That would perhaps put the Commission in the ideal position to have given the parties the opportunity to put all the material before it that they wish to do.

PN75

DEPUTY PRESIDENT GOSTENCNIK: Or the matter could be remitted.

PN76

MR BAKRI: Or the matter could be remitted, yes, your Honour. Or it could be a combination where directions are made, but that particular issue is remitted, either to the initial decision-maker or to a single member of this Full Bench. It's a serious issue, we don't press this ground lightly. It's a serious issue that goes to the jurisdiction of the Commission. On the face of it in my contention the Commission has exceeded its jurisdiction, it should not be left unexplored.

PN77

Your Honour, that concludes the submissions I'd like to make in support of leave being granted to raise the new issue.

PN78

JUSTICE BOULTON: Yes.

PN79

MR BAKRI: if it assists the Commission, I am able to hand up copies of the correspondence which was exchanged between the parties on Friday and over the weekend and Monday.

PN80

MR BRYANT: Your Honour, I object to that course of action for reasons I'm quite happy to elaborate on.

PN81

JUSTICE BOULTON: Yes, I think you should just proceed with your submissions, Mr Bakri.

PN82

MR BAKRI: Do I have permission to make submissions on this pre-approval requirements issue, your Honour?

PN83

JUSTICE BOULTON: You can proceed with your submissions on that matter.

PN84

MR BAKRI: Thank you, your Honour.

PN85

JUSTICE BOULTON: But that's not on the basis we've determined the question of permission.

PN86

MR BAKRI: No, it's not taken that way, your Honour, understood. The submissions that are made by the ASU in relation to this preapproval requirements issue are contained in the supplementary submission. Those submissions are intended to replace the submissions made at paragraphs 20 to 23 of the submissions, dated 10 March 2015.

PN87

I will firstly step the Full Bench through the relevant provisions. Firstly, section 186(2)(a) provides that:

PN88

Before approving an agreement. The Commission must be satisfied that the agreement has been genuinely agreed to by those employees to be covered by the agreement.

PN89

Section 188 provides that:

PN90

An enterprise agreement has been genuinely agreed to if the Commission is satisfied, inter alia that the requirements in section 182 and 183 have been met.

PN91

Section 182 provides that:

PN92

The employer must take all reasonable steps to ensure that during the access period for the agreement the employees who are employed at the time who will be covered by the agreement are given a copy of particular materials, those materials being the written text of the agreement and any other material incorporated by reference in the agreement or that the relevant employees have access throughout the access period for the agreement to a copy of those materials.

PN93

Section 180(3) provides that:

PN94

The employer must take all reasonable steps to notify the relevant employees of the following by the start of the access period: firstly, the time and place at which the vote will occur; and secondly, the voting method that will be used.

PN95

If the pre-approval of requirements have not been met, an agreement in my submission is not capable of being approved and to do otherwise would be an act which is beyond jurisdiction.

PN96

DEPUTY PRESIDENT GOSTENCNIK: Mr Bakri, are you suggesting that neither of section 180(2) or (3) have been complied with?

PN97

MR BAKRI: Correct. That's right, your Honour. The first question to be considered is when - - -

PN98

DEPUTY PRESIDENT GOSTENCNIK: Sorry, perhaps to put it more correctly on the face of the statutory declaration relied upon for the approval of the agreement is you can't be satisfied that it's been complied with .

PN99

MR BAKRI: That is the submission I make.

PN100

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN101

MR BAKRI: The first question that needs to be considered is when was the access period for the agreement? Pursuant to section 180(4), the access period for the agreement is the seven-day period ending immediately before the start of the voting process. That begs the question: what is the voting process and when did it commence?

PN102

The ASU relies on the decision of Australian Char Pty Ltd, and that will be found in the folder of authorities behind tab 4. In this decision, the meaning of "voting process" was considered by Ryan C. At paragraph 11, the Commissioner found that:

PN103

The emphasis in the definition of "access period" is not on the actual commencement of the vote, nor on the conclusion of the actual vote, but is expressed more generally to include the voting process referred to in section 181(1).

PN104

The Commissioner went on, at paragraph 18 to consider voting process and stated that:

PN105

It must include the systematic series of actions by which an employer initiates the request for employees to approve the agreement by voting on it; carries out the request for employees to approve the agreement by voting on it, and determines the outcome of the request for employees to approve the agreement by voting on it.

PN106

The Commissioner concluded, at paragraph 20 that in the matter before him:

PN107

The voting process, within the meaning of the act, commenced when the voting material was distributed to the employees. This is on the basis that the employer provided the voting material, thereby starting the voting process at the same time as providing the proposed agreement and providing notice of the time and place that the vote would occur.

PN108

Applying Australian Char to the evidence contained in the stat dec of Susan Williams dated 20 March 2015, it's my contention that the voting process commenced on 3 March 2014.

PN109

If I could take you to 2.5 of that stat dec, which is on page 8, Ms Williams has declared that each employee was provided by his or her employer with a ballot paper and the date in the box for that action is 3 to 10 March 2014. Thus if the voting process commenced upon the provision of the ballot paper, as Ryan C has said it does, the access period commenced on 23 February 2014 and ended on 2 March 2014.

PN110

The next question is: assuming that that submission is right about the commencement of the voting process and the access period, was there compliance with section 182 or, rather, could the Commissioner have been satisfied that there was such compliance? I draw the Commission's attention to the stat dec at section 2.4, which is also on page 8.

PN111

Here, Ms Williams declares that the final form of the proposed agreement was completed by no later than 3 March 2014. Material was provided to the employers for distribution to their employees, which material included the proposed enterprise agreement, Employer's then provided this material on or about 3 March 2014. Each employee provided a written receipt of getting such material.

PN112

Given that the evidence before the Commission is that the proposed agreement was provided on or about 3 March, if the access period ran from 23 February and ended on 2 March, the requirement in section 182 was simply not met.

PN113

Moving to the question of compliance with section 183, the Williams stat dec provides at 2.5, in response to the requirement on the prescribed form to describe the action that was taken to notify all relevant employees of the date and place at which the vote was to occur and the voting method to be used, the following. It states that:

PN114

From 3 March 2014 to 10 March 2014 each employee was provided by his or her employer with a ballot paper, a copy of the final agreement having already been provided.

PN115

Accordingly, on the basis of the evidence that's before the Commission, if the access period ran from 23 February to 2 March, the requirement in section 183 was simply not met. This is on the basis that the employers failed to take all reasonable steps to notify the relevant employees of the time and place that the vote would occur. Instead, this was done between are 3 March and 10 March 2014.

PN116

I will now make a submission that I put forward in the alternative. If the Commission does not accept the ASU's submission that the access period commenced on 23 February and ended on 2 March and instead finds that the access period commenced on 2 March 2014 and ended on 8 March 2014, which I understand is the respondent's contention, the ASU contends that on the basis of the evidence before the Commission, the requirement in section 183 was still not met.

PN117

DEPUTY PRESIDENT GOSTENCNIK: But you accept on that scenario that section 180(2) was met?

PN118

MR BAKRI: Yes, your Honour.

PN119

DEPUTY PRESIDENT GOSTENCNIK: And you say that 180(3) wasn't met because it's not apparent in answer to question 2.5 whether the information that was given to employees was given at the start of the access period and, secondly, it's not clear on the face of the material that employees were advised of the date, place and method of voting.

PN120

MR BAKRI: Slight variation on that; the information at 2.5 suggests that employees were advised of the date, place and the voting method from 3 March to 10 March.

PN121

DEPUTY PRESIDENT GOSTENCNIK: Well, where do I get from what's in the square there that they were advised of the date and place?

PN122

MR BAKRI: Your Honour, it's an answer that is been provided in relation to the question above. It can be assumed in my submission that the ballot paper may have had instructions on it, as is often the case.

PN123

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN124

MR BAKRI: That is a submission I make.

PN125

DEPUTY PRESIDENT GOSTENCNIK: So you don't quarrel with the information. You say that the information was given as required, but not by the start of the access period.

PN126

MR BAKRI: Correct. In short, the appellant contends that on the evidence before the Commission, its contentions about the pre-approval requirements should succeed. However, in addition to the evidence in the stat dec, the appellant notes that if the respondent had any helpful evidence to put before the Commission in this appeal, it could have applied to do so.

PN127

It is noted that the stat DEC at 2.4 states that:

PN128

After employees were provided with material, each employee provided a written receipt upon getting such material.

PN129

One would have thought that such documents would be dated and, as I have already submitted, the appellant has requested that the respondent produce these documents, but the respondent has refused to do so. In the circumstances where the respondent has not sought to adduce this evidence, or any other evidence, and adverse inference should be drawn against the respondent that there is no evidence that would have assisted the respondent to rebut the contentions that the appellant has put forward on notice.

PN130

At paragraph 14 of the respondent's submissions, the respondent asserts that if the requirements in section 180 are not met, the decision-maker retains a discretion to make a finding that there was a genuine agreement. This is not accepted by the appellant. It is contended that the decision to approve the agreement pursuant to section 186 is a discretionary decision applying the reasoning of the High Court in Coal and Allied as it provides some, albeit limited, latitude to the decision-maker.

PN131

However, section 188 makes it clear that for an agreement to have been genuinely agreed to, the requirements in section 180(2) and 180(3) must have been met. If they have not been met, the decision-maker simply can't approve the agreement as to do so would involve falling into error.

PN132

Your Honour that concludes the submissions which the ASU presses in relation to the pre-approval requirements issue.

PN133

DEPUTY PRESIDENT GOSTENCNIK: Mr Bakri, can I just take it to the first element of your argument that the access period occurred or began at some earlier point in time, because the voting process you say began at some earlier point in time will stop. Surely, the voting process - that is, that it's when the employer asks the employees to approve the agreement by voting on it commences on the day on which the employees can vote for it, not on some earlier date?

PN134

MR BAKRI: Your Honour, that - - -

PN135

DEPUTY PRESIDENT GOSTENCNIK: So if voting can only start on the 9th, how can it be that the employer asked them on the 7th, for example, to vote for the agreement by approving it when they couldn't vote?

PN136

MR BAKRI: Your Honour, I take you back to the reasoning of Ryan C, which in my submission is correct. The emphasis in the definition of "access period" in section 180(4) is not on the actual commencement of the vote, but more generally to refer to the voting process.

PN137

DEPUTY PRESIDENT GOSTENCNIK: No, not the voting process at large; the voting process in subsection (1). That is, when the employer requests employees to approve the agreement by voting for it. It's not the voting process at large, it's the voting process in subsection (1).

PN138

MR BAKRI: Your Honour, in my submission, if a ballot paper is given the voting process has started and that is consistent with not only Australian Char, but a series of other decisions - - -

PN139

DEPUTY PRESIDENT GOSTENCNIK: But those other decisions concern circumstances where employees could vote at any time during a period, not at a specific time. So if employees are given about a ballot that can't cast the ballot until the 9th, I'm struggling to see how a voting process commences some earlier point.

PN140

MR BAKRI: In my submission, those decisions stand for the proposition that the voting process starts at the time that the ballot paper is provided, regardless of whether the ballot paper is not to be provided until some later time. It's the first step in a series of steps which leads to the voting on the agreement.

PN141

DEPUTY PRESIDENT GOSTENCNIK: I understand the point.

PN142

MR BAKRI: Your Honour, I will now move to the submissions that are advanced in relation to the second area of challenge.

PN143

DEPUTY PRESIDENT GOSTENCNIK: Yes, I'm sorry, Mr Bakri. The reference is subsection (4) is to 181(1), rather than 180(1).

PN144

MR BAKRI: I'm sorry, your Honour, I didn't quite catch that.

PN145

DEPUTY PRESIDENT GOSTENCNIK: The supposition to my questioning was that the reference to subsection (1) in subsection (4) of 180, was back to section 180(1), when in fact it's back to section 181(1).

PN146

MR BAKRI: I had assumed as much, your Honour. Thank you for clarifying that.

PN147

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN148

MR BAKRI: I will not more to the issue of which award applies for the purposes of the BOOT. The secondary challenge to the Commission's decision is that the Commissioner fell into error by deciding that the Retail Award and not the Clerks Award applied for the BOOT. The appellant's submissions are set out at paragraphs 24 to 50 of the 10 March outline. I will highlight the key parts of the contention made.

PN149

Firstly, the manner in which the scheme for approval of agreements works is set out in some detail in the outline at paragraphs 25 to 28. I don't propose to take the Commission through these paragraphs at this point. I will start with the Clerks Award, which will be found behind tab 1 in the ASU's folder.

PN150

The relevant clauses in the award are 4.1 and 3. Clause 4.1 provides that:

PN151

The award covers employees in the private sector with respect to employees engaged wholly or principally in clerical work, including administrative duties of a clerical nature.

PN152

Clause 3 provides that:

PN153

Clerical work includes recording, typing, calculating -

PN154

and goes on to list various other tasks. The ASU contends the list of activities in clause 3 is plainly not an exhaustive list. It lists some of the matters that fall within the ambit of clerical work, but other activities can still fall within the scope of clerical work. The contention that is made by the ASU is that clerical work includes the activity of wagering.

PN155

Now, there are two Full Bench decisions which are key to this matter and relied on by the ASU. I will take the Commission through each of them. The first decision is the Award Modernisation decision, the citation is [2008] AIRCFB 1000. It's behind tab 7 is the ASU's folder. For ease of reference, I will refer to this as the Award Modernisation decision.

PN156

If the ASU's definition of "wagering" is accepted, then the proposed agreement covers wagering businesses, given that the employees are engaged in taking bets and paying out money in relation to successful bets.

PN157

In the Modern Enterprise Award decision, the Full Bench considered an application - I should say I think it's worth going through the circumstances of that decision in a little bit of detail, and I ask that you bear with me as I do that.

PN158

DEPUTY PRESIDENT GOSTENCNIK: Before you do that, Mr Bakri, can I put this to you: isn't the question of wagering a bit of a furphy? Isn't the real question whether the General Retail Industry Award applies? And if it does, then that's the end of the matter, isn't it, because it's excluded from the Clerks Award?

PN159

MR BAKRI: Well, if it's accepted that wagering encompasses the particular relevant work then, yes, that's right. The key question then becomes: does the Retail Award apply? Because if it does, it applies in the place of the Clerks Award.

PN160

DEPUTY PRESIDENT GOSTENCNIK: Yes, so it doesn't really matter whether or not this is wagering as such, does it? The question is whether what these employees do and what the employers do falls within the scope of coverage of the General Retail Industry Award. And if the answer to that question is yes, then it doesn't really matter, does it, about whether or not what they do involves wagering?

PN161

MR BAKRI: That is right, but if the answer is "no", it is relevant whether - - -

PN162

DEPUTY PRESIDENT GOSTENCNIK: If the answer is "no", then it's clear that the wrong award was applied.

PN163

MR BAKRI: Yes, but I would contend that the consideration of whether the work is wagering or not is still relevant to a consideration of whether the worker is, in fact, covered by the Retail Award.

PN164

DEPUTY PRESIDENT GOSTENCNIK: It's accepted that clerical work can be performed by all manner of people covered by various different awards and that may include wagering.

PN165

MR BAKRI: Yes.

PN166

DEPUTY PRESIDENT GOSTENCNIK: So I'm not sure how resolving the question of wagering first resolves coverage.

PN167

MR BAKRI: Yes, I take your point, but it is a necessary step whether it happens at the start or the end. It's a necessary consideration to determining which award applies.

PN168

DEPUTY PRESIDENT GOSTENCNIK: All right.

PN169

MR BAKRI: The Modern Enterprise Award decision considered three awards. The Racecourse Totalisators (State) Award, the TAB Clerical and Administrative Staff Phonetab Operators Award and the TABCORP Wagering Employees Award. The applications relating to the first two awards failed, due to a technical issue relating to standing, and the Full Bench considered the application to modernise the third award.

PN170

The Full Bench considered, in great detail, the coverage of the Clerks Award, the Retail Award and the Banking Award to employees that are engaged in wagering. This needed to be considered, because the Full Bench, under the test that it was applying, was required to determine if there was a modern award that would apply, but for the Wagering Award in the matter.

PN171

The key parts of the decision, in my submission, are paragraph 63 to paragraph 69. At paragraph 65, the Full Bench accepts the definition of "wagering", which is set out in the Macquarie Dictionary, and at paragraph 66 to 69 found that the Retail Award did not cover the work and the Clerks Award did. The Full Bench considered whether the Retail Award applied and gave consideration, in particular, to clause 3 of the Retail Award, which defines the general retail industry.

PN172

Clause 3 defines the general retail industry as:

PN173

The sale or hire of goods or services to final consumers for personal or household consumption.

PN174

The Full Bench found that the definition of "general retail industry" did not apply to the employer's wagering business and at paragraph 66 rejected the submission that:

PN175

A bet is the provision of a service for personal consumption.

PN176

It found at paragraph 67 that:

PN177

It cannot sensibly be said that such acceptance of bets and paying out of money is in the general retail industry.

PN178

It is correct that the Modern Enterprise Award decision was not considering an off-course wagering business, but instead was considering an on-course wagering business. The appellant contends that this does not matter. The key finding in the decision is that the business of accepting bets from punters and paying money in relation to successful bets is not within the general retail industry.

PN179

The Full Bench answered this question clearly and directly by finding that such work is within the scope of the Clerks Award. It simply doesn't matter if the work is at a racecourse or not. The nature of the work is relevantly the same. It's on this basis that the ASU submits that the Commissioner's decision is inconsistent with the Modern Enterprise Award decision.

PN180

The respondent asserts at paragraph 18 of its submissions that there are two agreements that were approved with reference to the Retail Award. The ASU responds to this by saying that there are numerous agreements around the country that refer to different awards, including the Retail Award, the Clerks Award, and other awards such as the Miscellaneous Award. There quite simply has been a lack of consistency in the awards that have been applied as reference instruments and the ASU refers to the table that is set out in its submissions at first instance, which are dated 1 May 2014. They can be found behind tab 6 of the appeal book.

PN181

In particular, we refer to the table at paragraph 19 which makes out the point that there has been a lack of consistency and that just because there are a couple of agreements that have referenced the Retail Award, does not ultimately change the task that's before the Commission now, which is to determine which award, by operation of law, actually applies.

PN182

The respondent has submitted at paragraph 19 of its submissions that the business of agents is not wagering, as the agents are contractually prohibited from engaging in wagering, acting as a bookmaker, a bookmaker's clerk or agent. In my submission, that assertion is simply misguided. The case here relies on the submissions that it's made in its written outline at paragraph 50.

PN183

In short, the evidence before the Commissioner established that the employees engaged in wagering in the sense that was discussed by the Full Benches in both the Award Modernisation decision and Modern Enterprise Award decision as they take bets and pay out money pursuant to successful bets. The fact that the employers of these employees don't set the betting odds is simply irrelevant to this matter.

PN184

The respondent contends at paragraph 20 that the employers and employees are not permitted by law to engage in wagering. Again, this is just misguided and misunderstands the sense in which wagering was referred to by the Full Bench decisions.

PN185

At paragraph 23 of its outline, the respondent refers to matters which it considers to be common ground. At 23(1), the respondent asserts that the employees handle cash and, therefore, on the face of it come within the definition of the Clerks Award. The respondent appears to misunderstand the appellant's argument as to how the agreement comes within the scope of the Clerks Award or, rather, the work that's covered by the agreement comes within that coverage.

PN186

To make it clear, it's not cash handling per se that is relied on by the ASU, but rather the activity of wagering or accepting and paying out bets which brings the work of the employees within the scope of the Clerks Award.

PN187

At paragraph 37 of its outline, the respondent contends that the employees provide a service to consumers, which is the provision of an opportunity to enter into a bet and that the fact that the bet is for a punter's own personal indulgence or pleasure makes it for his or her personal consumption. The Full Bench in the Modern Enterprise Award decision rejected the argument that the act of accepting bets and paying out money is the sale or hire of goods or services. This is at paragraph 66 and 67 of the decision.

PN188

The Full Bench found that:

PN189

Having regard to the nature of the definition of the general retail industry as a whole in the Retail Award it cannot be sensibly said that such acceptance of bets and paying out of money is in the general retail industry.

PN190

The ASU contends that the Full Bench's decision is correct and should be followed by this Full Bench. The respondent and the intervenor failed to provide a persuasive basis as to how the provision of an opportunity to enter into a bet could be characterised as a good or service that is for personal consumption.

PN191

In addition, the appellant contends that characterising the activities of the employees as providing the service of the opportunity to place a bet fails to take into account the fact that placing a bet is correctly characterised as an act of investing money, and this is apparent from the South Australian Betting Operations Rules and On-Course Betting Operations Rules. That document can be found in the appeal book behind tab 11.

PN192

Relevantly, rule 2.3 of that document defines a "totalisator" as "a system used to enable persons to invest money on approved contingencies." If this is accepted, it's not apparent how it could be said that punters are being provided with anything for their personal consumption. Rather, an investment has been facilitated by the employees. It should be noted that the argument that the acceptance of bets was part of the industry of investment as contemplated by the Banking Award was rejected by the Full Bench in the Modern Enterprise Award decision.

PN193

At paragraph 43 of its submissions, the intervenor asserts that if the Clerks Award covered the work, it's likely that many of the businesses conducted by off-course agents would be unprofitable. It's plainly not relevant whether such a thing would have an impact or wouldn't have an impact. The only matter that is relevant is, in law, what is the operation of the scope of each of the awards?

PN194

The appellant relies on the grounds for permission to appeal which are set out at paragraphs 9 to 13. I don't propose to take the Commission through these submissions which are quite comprehensive. I will now - - -

PN195

DEPUTY PRESIDENT GOSTENCNIK: Mr Bakri, can I ask you this: I'm assuming that the agents themselves don't accept bets in the sense that they accept liability for the payment, that that's underwritten or that liability is accepted by TABCORP.

PN196

MR BAKRI: That is my understanding.

PN197

DEPUTY PRESIDENT GOSTENCNIK: And the contract is for the wager; the wagering contract is between TABCORP and the punter.

PN198

MR BAKRI: That is also my understanding, your Honour.

PN199

DEPUTY PRESIDENT GOSTENCNIK: What do you say to this proposition, that what in fact the agents are doing are they're not accepting bets as such. What they are doing is they're facilitating a wagering contract made by third parties; that is, TABCORP and the punter, and why isn't that a service or a provision of a service?

PN200

MR BAKRI: My submission is that it doesn't fall within the definition of "a good or service for personal consumption" as is envisaged by the Retail Award. The issue was considered at length by the Full Bench and it was found that it could not be said that such an activity could fall within that definition; a finding that I say is correct and ought to be followed.

PN201

DEPUTY PRESIDENT GOSTENCNIK: That finding seems to be based upon the evidence before the Commission that in that case is was THL that accepted bets and therefore that was not a provision of a service.

PN202

MR BAKRI: That was a submission that was put - - -

PN203

DEPUTY PRESIDENT GOSTENCNIK: Well, paragraph 66 says:

PN204

However as the evidence before us indicates, it is not THL that provides a bet, rather they accept a bet.

PN205

And so here, TABCORP is the body that is accepting the bet, not the agent. All that the agent is doing is facilitating a contract between the punter and TABCORP.

PN206

MR BAKRI: In my submission, notwithstanding the fact that the agent is not accepting the liability for the bet, it does not change the fact that the employees of the agents are simply not providing goods or services for personal consumption. I fail to understand how it could be said that there's anything personal - anything for personal consumption.

PN207

DEPUTY PRESIDENT GOSTENCNIK: Correct me if I'm wrong, but as I read paragraph 66, that finding turns upon the words "is the provision of a service" and then it goes on to say:

PN208

As the evidence establishes, it is not THL that provides the bet.

PN209

You see, if it provided the bet, it might have a different outcome. Rather it accepts the bet and so therefore there is no provision of a service. It's not saying that betting itself can't involve a service.

PN210

MR BAKRI: The Full Bench, your Honour, was dealing with the submissions and evidence as put before it and that's what they were dealing with in paragraph 66, but if you go on to 67, the Full Bench says:

PN211

Moreover, having regard to the nature of the definition of the general retail industry as a whole in the Retail Award, it cannot sensibly be said that such acceptance of bets and paying out of money is in the general retail industry.

PN212

That suggests a broader consideration of the activities performed by - - -

PN213

DEPUTY PRESIDENT GOSTENCNIK: Well, it just seems to be confined to the acceptance of bets.

PN214

MR BAKRI: Yes, but in the present matter, it can be said that there is an acceptance of bets, but on behalf of the agent which is doing it on behalf of - - -

PN215

DEPUTY PRESIDENT GOSTENCNIK: Why isn't that a service?

PN216

MR BAKRI: It's contended that that is not a service for personal consumption. I fail to see how - - -

PN217

DEPUTY PRESIDENT GOSTENCNIK: If I got to Australia Post and I pay my tax bill, isn't Australia Post providing me a service which facilitates my tax bills to the ATO? It's not accepting payment on behalf of the ATO, it's facilitating it. Why isn't that a service?

PN218

MR BAKRI: It would depend whether that could also fit within the definition in that - you have to ask yourself whether it's a service for personal consumption, and perhaps that would more neatly fit into that second part of the definition.

PN219

DEPUTY PRESIDENT GOSTENCNIK: Yes, thank you.

PN220

MR BAKRI: Thank you, your Honour

PN221

JUSTICE BOULTON: In the enterprise - what do you call it?

PN222

MR BAKRI: The Modern Enterprise Award decision.

PN223

JUSTICE BOULTON: The Modern Enterprise Award decision. Do you accept that the Bench was just considering the employees of TABCORP?

PN224

MR BAKRI: Yes.

PN225

JUSTICE BOULTON: The direct employees of TABCORP.

PN226

MR BAKRI: The factual controversy before the Full Bench involved on-course direct employees of TABCORP engaged in what we contend is wagering. We do accept that, but we say that the reasoning and the findings made about the type of work is applicable to the work that is performed by the relevant employees in the matter now before the Commission.

PN227

JUSTICE BOULTON: But the Full Bench seems to - at least at paragraph 68 of the decision seems to underline the fact that they are only persuaded insofar as THL is an employer in its wagering business. It's an employer. They weren't persuaded it was an employer in the general retail industry, but that's not the same as saying these people who are acting as agents in facilitating the taking of bets and payment for wagers, as it were, one would seem to understand, from what was before the Commissioner, and operating from shopfronts, but that they might not be characterised differently than the TABCORP employees.

PN228

MR BAKRI: I'm helpfully reminded by my instructor that THL employs both in wagering and in other areas which are not classified as wagering, and that is what I would submit that the Full Bench was dealing with there. In short, my submission is that - - -

PN229

JUSTICE BOULTON: Sorry, I don't understand that. Are you saying that they were dealing with the other employees? Because it's saying insofar as THL is an employer in its wagering business they are not persuaded it's an employer in the general retail industry. Well, I mean, one might readily accept that but that doesn't characterise necessarily the so-called services that these agents are providing in what would appear to be shopfront retail premises.

PN230

MR BAKRI: Thank you for that moment. Your Honour, the only other submission which I would like to make before concluding is that the work that is performed by THL wagering employees on course is exactly the same as the work that's performed at off-course agencies.

PN231

DEPUTY PRESIDENT GOSTENCNIK: The difference being that on-course there is performed by their employees and here it's not.

PN232

MR BAKRI: That is a difference, but in terms of the type of work, the activities which the individual employees are doing, the work that these individuals go to work every day to do is - - -

PN233

JUSTICE BOULTON: It's a different context, isn't it? I mean, race meetings are on-course activities. It's a different context to these agencies that are operating perhaps in shopping complexes or wherever, strip shops - - -

PN234

MR BAKRI: I think the evidence before the Commissioner was in strip shops generally.

PN235

JUSTICE BOULTON: Yes.

PN236

MR BAKRI: Your Honour, if I could now - - -

PN237

DEPUTY PRESIDENT GOSTENCNIK: I'm not sure how far that takes you, because if you're just comparing the work of the employees, how is the work of the employees the subject of this application any different to the employee at the local chemist or the local post office who sells me a TattsLotto ticket?

PN238

JUSTICE BOULTON: The local newsagent that's a TattsLotto ticket would be - - -

PN239

MR BAKRI: I'm happy to deal with that issue. The employees at the local newsagents that sell a TattsLotto ticket or a Keno ticket or a scratchie or whatever they're called are not only doing that task. They're doing a range of duties. Their core job is to sell various goods; chocolate bars, drinks, envelopes, magazines, newspapers. So to just pick out - pluck out or pick out one discrete task and say, "On the union's reasoning that would be wagering," is not the correct analysis.

PN240

The fact of the matter is with these newsagency employees, they do a broader range of work. They can't just be looked at in isolation that they do some work which does have some similarity to the relevant employees in this other - - -

PN241

DEPUTY PRESIDENT GOSTENCNIK: Which goes back to my initial proposition and that is that whether or not it's wagering is beside the point. The question is whether or not these employees are covered by the general Retail Award.

PN242

MR BAKRI: The ASU agrees that if the finding is that they are covered by the general Retail Award, that's the end of the matter.

PN243

If I could now conclude, in summary the appellant contends that it should be granted permission to appeal the decision and that the appeal should be upheld on the grounds that have been advanced. The ASU seeks that the decision of Bull C be quashed and that the application that's been made by the respondent be dismissed.

PN244

The ASU notes that the parties at first instance agreed that the agreement could not pass the BOOT if the Clerks Award applied for the purposes of the BOOT. So it's submitted by the ASU that if the Commission is with us on the argument that the Clerks Award should have applied, there's no utility in referring the matter back to the Commissioner to see whether undertakings could salvage the agreement.

PN245

The parties agreed at first instance that if the Clerks Award applied it was incapable of being approved. In those circumstances it's contended that the appropriate course is to quash the decision and dismiss the application. That concludes the submissions that I have to make for now. I would like to have an opportunity to reply should it be necessary.

PN246

JUSTICE BOULTON: Good, thank you. Mr Bryant.

PN247

MR BRYANT: May it please the Commission. We say really this matter comes down to two issues which I label procedural and the second one substantive. The procedural relates to the alleged failure to comply with the pre‑approval process. The substantive relates to the question essentially, "Does the Retail Award apply in the absence of an agreement to these employees." They're the two issues that apply in this particular case.

PN248

I'll deal with the procedural one first. We say in respect of that that permission should not be granted to appeal. This is a case where there have been lengthy discussions between the employers and the employees as to the terms of a proposed agreement. There can be no doubt, we suggest, that in this case the employees have had ample knowledge of the terms of the proposed agreement and agreed unanimously that the agreement should take effect. The employers and the employees in this case are unanimous in that position.

PN249

The present application which is subject to appeal was lodged following a vote which occurred on 9 March 2014, and subsequent to that application being lodged, but before it was considered, the union made known that it wished to make representations in respect of its submissions. That occurred nearly a year ago. At that time and up until relatively recently and certainly until the filing of the appeal in this matter there has never been any suggestion made to Bull C or anybody that the pre-approval procedures had been complied with.

PN250

In this case, if you go through the submissions prepared by the union - and they were very involved in the very early stage - you will see the submissions do not raise at all any suggestion that there is some default in respect of the pre-approval procedures. They are lengthy submissions. I think there are some two or three sets by the union and several from the employer.

PN251

Bull C proceeded on the basis that there was no issue in respect of pre-approval procedures. We submit there are no extenuating circumstances or circumstances that would make this exceptional, concerning the preparation for hearing before Bull C. Some cases, of course, talk about ill health on the part of union officials and the like, but in this case there is nothing and the suggestion that, in fact, the application itself that was filed by the employer was not available to the union, in light of the fact that they made subsequently a number of submissions, we would suggest is not tenable; certainly without evidence available on that very point.

PN252

In any event, if they chose not to seek what I would have thought was a fundamental document for one reason or another, then they have chosen to do so and we say in respect of that that it is not now open to them to come to this court and raise issues that should properly have been raised before Bull C and which would have been subject to evidence had it been raised at that time.

PN253

For example, as this bench has pointed out in the course of argument, there is a real question in this case on the statutory declaration signed by Ms Williams as to when each employee actually got the request to vote. It's an oversight it's silent. As we stand here, we don't know when that happened. We're invited to assume that occurred when the ballot papers were provided or the agreement was provided on 3 March 2014. That is what it is, it's only an assumption.

PN254

We do know from the statutory declaration that the documents were provided to the employers in February 2014. We know nothing about that period and, in fairness, if in fact there is said to be a breach of the section 180(3) there would have to be, presumably, evidence as to what steps were actually taken between the delivery of the ballot papers and other documents to the employers in late February - or 24 February, I think, 2014 - and when the employees received the agreement and the ballot papers on about 3 March 2014. We know nothing about that.

PN255

What we do know though is that whatever happened, what we know for the statutory declaration is that all employees voted. That's clear on the statutory declaration itself. So whatever the employers did, whether it be reasonable or otherwise, and we don't know what they actually did. We know that the end result was that all employees voted. So that would certainly be a relevant consideration of the question of whether or not, as the statute requires that the employer must take all reasonable steps to notify the relevant employees of the date and what have you.

PN256

DEPUTY PRESIDENT GOSTENCNIK: Mr Bakri's point is really underscored by your submission, "We say we don't know and we don't know on the face of the statutory declaration what happened," and so Mr Bakri says, "On the face of the statutory declaration how can the Commissioner have been satisfied that those statutory preconditions were complied with, if as you say, we don't know." That's his real point.

PN257

MR BRYANT: Yes, I understand that, your Honour. But we would say in respect of that that in this case it really is incumbent upon a party to raise it before the Commission, if in fact on the face of it - or it there is to be an issue. We accept - - -

PN258

DEPUTY PRESIDENT GOSTENCNIK: I suppose one way of looking at it is that the Commissioner had a contradictor and he was entitled to assume that if there was a problem it would have been raised and he derived his satisfaction that way.

PN259

MR BRYANT: Yes, your Honour, and also, just in respect of section 180(2) and the various submissions made in respect of that, it has to be noted that the Commissioner well knew at the time he heard it on the base of the declaration of Ms Williams, that these employees had a copy of the proposed agreement since November. Actually had a copy, didn't have access, actually had a copy since November 2013 and that's in her declaration.

PN260

So on any view, he knew that at the very least, there was compliance by the employer with section 180(2)(b) of the Act.

PN261

JUSTICE BOULTON: Is it the same agreement? Was that the agreement that was submitted to the State Commission?

PN262

MR BRYANT: To the Bull C.

PN263

JUSTICE BOULTON: No, I thought there was an earlier agreement which was submitted to the South Australian Industrial Commission, wasn't there?

PN264

MR BRYANT: I'm not aware of that, your Honour. My understanding is - - -

PN265

JUSTICE BOULTON: I might have misread something.

PN266

MR BRYANT: My understanding of the history of this matter is that there were three applications, as chance would have it. Three applications. The first one, hopelessly flawed procedurally and we can put to that to one side. The second one was an application filed in this Commission at an earlier time and that is action number AG2013/12829. That was filed 24 December 2013 and we then subsequently withdrawn or discontinued because, as was pointed out by the Commission, there were one or two procedural difficulties in respect of giving notice and conducting a vote.

PN267

There have, in fact, been two votes in this case, both of which have been unanimous. What happened, that was then withdrawn. That action was withdrawn and the application was then subsequently submitted after anther vote was conducted on 9 March 2014. The agreement in both cases is the same. So as Ms Williams declares in her statutory declaration, these employees have had the proposed agreement ultimately approved by Bull C since November 2013.

PN268

So on any view, the employees in this case come within section 180(2)(b) of the Act. In fact, they've had it for two to three months before and it is now said, however, that in some way the Commissioner was in error in not ensuring in this way these procedural requirements were complied with.

PN269

Now, we contend, of course, that given the simple failure to take any steps at all to pursue any inquiries as to the preapproval steps, the appellant in this case who has been involved in the matter since the matter first came before a Commissioner of this Commission, means that they cannot now raise the issue and in support of that we refer to the decision of the Full Bench of this Commission in Construction, Forestry, Mining and Energy Union v Delta Coal Mining Pty Ltd [2014] FWCFB 5743, which I understand that information has been provided to the Commission by my instructing solicitor.

PN270

We say that that decision embraces the principle established in the High Court in Metwally's case which is that:

PN271

It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case has been decided against it, to raise a new argument which whether deliberately or by inadvertence he failed to put during the hearing when he had an opportunity to do so.

PN272

The Full Bench in that decision of course embraces that decision and says that it's the principle they follow in that case.

PN273

DEPUTY PRESIDENT GOSTENCNIK: Isn't the position slightly different when a party raises a jurisdictional point? That is, the Commission either does or doesn't have jurisdiction and the fact that a party didn't argue at first instance that it didn't have jurisdiction is in many respects beside the point.

PN274

MR BRYANT: In any event, we would say it's not an appropriate case to grant permission to appeal a decision where the appellant has simply stood by idly, as is the case in this situation, run a case on a certain basis and then turned it around in respect of matters relating to section 180(2) and 180(3). In respect of section 180(2), the requirements there, there is of course clear evidence before the Commissioner, so the issue doesn't arise.

PN275

The issue really only arises where in respect of section 180(3), which rears its heard, of course, when the supplementary submissions are provided by the union - that is their second submissions, that is the second exhibit tendered today.

PN276

DEPUTY PRESIDENT GOSTENCNIK: Yes, although that relies upon the access period starting at an earlier period of time. Their first submissions raise the same point in relation to the access period. If it's accepted having started at a later point. Their essential position is that that information should have been communicated on 2 March 2014. It wasn't communicated until 3 March 2024, therefore not at the beginning of the access period.

PN277

MR BRYANT: Your Honour, my point is that the point being made about section 180(3) is not raised in the original submissions that have been filed. They were raised several days ago - a few days ago.

PN278

DEPUTY PRESIDENT GOSTENCNIK: I accept that, yes. I understand.

PN279

MR BRYANT: Then, of course, as your Honour comment comes to, is the application of section 180(2). Now, we say in respect of that that the access period commences seven days before the vote can actually take place and that's the relevant time. It's interesting to note that in Char's case, which is quoted as authority for some earlier date, what actually happened there was that the vote was able to be made immediately upon receipt of the papers. That's not the situation in this case, of course. The vote occurred on 9 March 2014, and we say the period backdates, so that these documents have to be given within seven days.

PN280

DEPUTY PRESIDENT GOSTENCNIK: The relevant documents in subsection (3) have to be given by the beginning of the access period.

PN281

MR BRYANT: I accept that, your Honour. That assumes, of course, a lot of my learned friend's submissions proceeds on the basis that they were given that notice on 3 March.

PN282

DEPUTY PRESIDENT GOSTENCNIK: But that's what the stat dec says.

PN283

MR BRYANT: I'm not sure that that's - - -

PN284

DEPUTY PRESIDENT GOSTENCNIK: Question 2.5 described the action that was taken to notify all relevant employees of date and place, and voting method to be used, and it describes the action and then it says that information was given 3 March to 10 March. Not on 2 March.

PN285

JUSTICE BOULTON: I'm not sure that the dates there, 3 March to 10 March are in respect of describing the action that was taken to notify all relevant employees of the date and place at which the vote was to occur and the voting method to be used. Then the response is, "In the relevant period of seven days prior to all employees voting, each employee was provided with a ballot paper, a copy."

PN286

So I'm reading the statement as saying that the period within which voting was to take place was 3 to 10 March and that it's saying that within - well, I mean we're reading this - I mean, if the issue had been raised then maybe you'd ask the person who made the statement what exactly was meant by all this.

PN287

MR BRYANT: Your Honour, the document, as your learned brother said in earlier discussions, is incomplete in that it doesn't say when the employee were notified that there was to be a vote. And a whole series of matters are described and there's a reference to a period of time, 3 March to 10 March.

PN288

Now, that is an incomplete statement. It should perhaps be expanded upon. If so, it would be necessary, I suppose, ultimately to expand upon it to the point of describing when every employee working with every employer actually was notified of the date. Now, it's incomplete, of course, but we would say in this situation where no issue is taken, it's not incumbent upon the Commissioner to embark upon an absolute inquiry to ascertain precisely when each employee got notification of the date of when the vote was to take place and on my instructions, I understand there's some evidence that occurred on 9th or 10 March 2014.

PN289

The document is incomplete. This is why we say it's at this stage inappropriate for the appellant to come to this commission and simply say, "All right, we want to open all that up now, and find out precisely what did happen."

PN290

JUSTICE BOULTON: I see, because you say - because I didn't understand that. You say the vote is taking place - is that actually carried out on the 9th and 10th?

PN291

MR BRYANT: Yes, your Honour. That's contained in paragraph 2.8. Your Honour will see that. That's the declaration.

PN292

JUSTICE BOULTON: I see.

PN293

MR BRYANT: The second row of that table that's contained halfway down the page.

PN294

DEPUTY PRESIDENT GOSTENCNIK: Mr Bryant, was there transcript of the proceedings or was it done on the papers. Hang on, I've got it.

PN295

MR BRYANT: It's in the appeal book. It's limited transcript and in the course of that there was the some cross-examination as to the - Ms Williams gave evidence and in the course of cross-examination she was asked questions relating essentially to the nature of the activities. No questions asked about these procedural issues. Very limited evidence, may it please the court.

PN296

I suppose the concluding remarks that I make in respect of this in respect of this point about failing to take any action by the appellant at first instance is that I would say in the absence of any jurisdictional point being taken by a represented party at a matter the Commission was entitled to assume that it could proceed, at least where it was not immediately apparent that there was a jurisdictional issue.

PN297

I then turn very briefly, if I may, to section 80, subsection (2) and I want to make several points about that. It is said that in respect of these procedures that the employer must take all reasonable steps to do certain things. Not an absolute injunction, of course, but it requires them to take all reasonable steps, obviously geared to the proposition that the employees must be given every opportunity to take a vote. In this case, of course, every employee voted and that was a matter of evidence before Bull C. So his acceptance, if you like, of jurisdiction certainly had a reasonable basis for it.

PN298

The obligation in section 180(2) is to do one of two things. In this case, we say the employer did two things. It did both. It provided all the relevant employees to have access, during the access period to the agreement, to a copy of those materials. The evidence of Ms Williams is that they had a copy of the agreement since November 2013. Having a copy of the agreement clearly constitutes having access to the agreement.

PN299

The second thing we say that happened is that during the access period the employees were given a copy of the agreement and we say this occurred on 3 March 2014. This is said to be in default of the Act in some way. Now, it comes down, I suppose, initially to the question of what is meant by "during the access period". "During" we submit, can have two possible meanings. It can mean "for the whole period of" or it can mean "at some time in the course of" and the question is which of those two interpretations are to be applied. It really is to be taken from the context of the section.

PN300

DEPUTY PRESIDENT GOSTENCNIK: Well, I would have thought on any view if employees were given a copy of the agreement before the commencement of the access period, they had ready access to it throughout the access period.

PN301

MR BRYANT: That's my submission, your Honour. But in any event, we say that the clear terms of - well, as I have said, subsection (b), we meet that on any view. Subsection (a) we say that the provision of that section makes it clear that it has to be given in week proceeding, in order fairly enough and logically enough to enable the employee to be able to consider the final draft of the proposed agreement and make an educated vote so that he's got it fresh in his mind, as it were.

PN302

Now, we take that position, we say, because of the use in particular of the phrase "given" in subsection (a) of section 180(2). That is - if we can descend into grammar for a moment - the use of the present continuous tense which implies that it's ongoing and that it occurs during the period of duration. If it had been intended that the requirement was to have the employee have it for the whole period, we would say the appropriate provision would have been - our argument is it should have been "has been given". That is to say, the present perfect tense.

PN303

DEPUTY PRESIDENT GOSTENCNIK: I don't understand there to be any dispute about that construction. As I understand Mr Bakri's submission that if the access period commenced on 2 March, then he accepts that section 180(2)(a) has been satisfied. Yes?

PN304

MR BAKRI: Yes, your Honour. That's correct.

PN305

MR BRYANT: Now, I think if I can come to the substantive issues, I think I may be able to assist the Commission by briefly canvassing my client's position, or the positions o their members under South Australian law, because it has be borne in mind that under South Australian law it is an offence to engage in the business of wagering unless authorised to do so.

PN306

So for the purposes of conducting a business of wagering in South Australia the agents are not permitted to do so as a matter of law. The basis for that submission is contained in section 50 of the Lottery and Gaming Act 1936, which says that:

PN307

All contracts or agreements, whether by parol or in writing by way of gaming or wagering shall be void.

PN308

And the section 58 of that act provides that:

PN309

No person shall for fee, commission, reward, share, or interest of any kind whatever, or upon any understanding or agreement, either expressed or implied, for such fee, commission, reward, share or interest receive money in respect of a totaliser operation.

PN310

It is not permitted in law in South Australia for my clients to accept to money to, in effect, operate a totaliser business or, indeed, to invest it in a totaliser business. That's as a general proposition and the qualification to that is contained in section 4AB of that Act, which says the act is subject to other acts authorising gambling.

PN311

So on the basis of the Lottery and Gaming Act 1936, my client is not able to engage in any sort of gaming or wagering unless they're authorised to do so somewhere else. The only basis upon which they are authorised to do so is contained in the Authorised Betting Operations Act 2000, which is the only act which relates to totaliser businesses in South Australia.

PN312

It's an act that provides for a licence to a single operator to operate a totaliser business and that business operates a number of on-course facilities, a number of also off-course facilities as well in its own name, but in addition, under section - sorry, may it please the Commission I've just misplaced the provision. Where is it?

PN313

DEPUTY PRESIDENT GOSTENCNIK: It's in your submissions?

PN314

MR BRYANT: It's in my submissions, yes.

PN315

DEPUTY PRESIDENT GOSTENCNIK: It's paragraph 20 of your submissions. Your point is that this is the only legislation in South Australia which authorises by the grant of a licence on persons to engage in betting operations and none of your clients hold such a licence, is that correct?

PN316

MR BRYANT: That's right, your Honour. Indeed, if I can find the provision - I apologise.

PN317

DEPUTY PRESIDENT GOSTENCNIK: So that either means they're not engaged in wagering or they're breaking the law.

PN318

MR BRYANT: That's right and I wouldn't be the - I'm not suggesting my clients are breaking the law, your Honour. The provision provides essentially that the licensee can proceed to have its products sold - have agents to sell its products. That is to say it can authorise agents to take bets on its behalf.

PN319

Just so I make no mistake about this, the provision in respect of these agents is as you would expect. They are effectively doing the same thing as businesses selling lottery tickets. They are selling a piece of paper, redeemable anywhere in the state with the licensee, not with the agents, to which attaches a chosen action, there being a contract of wager between the original punter and the licensee which can be redeemed by any person holding that ticket. So what they are doing is they are simply selling a ticket to which attaches certain rights.

PN320

The Authorised Betting Operations Act simply provides for a system whereby there is a single licensee who is responsible, effectively, for the control of these operations and as Bull C observed, exercises a very rigorous control on its agents for obvious reasons, if one looks at the Act, namely that if there are any breaches of the Act by anybody, it is the licensee to whom the relevant government authority comes looking in terms of taking remedial steps enforcing and ultimately cancelling the licence is the breach is serious enough.

PN321

So that's the position. At the end of the day, we say that that what you have here is a situation where people are selling pieces of paper to which potential rights attach to people walking in off the street. They are selling from standalone facilities in a retail setting, the phrase used by the witness before Bull C was "in the High Street".

PN322

As such they are clearly, we say , retail services and they are to be distinguished from a situation where you enter into a contract of wager in an on-course situation. So in that regard we say that the retail award clearly applies and the ultimate test to be applied in respect of ascertaining whether or not the BOOT has been met is to ascertain whether or not the benefits being received under the agreement are as good as better than those being provided for under the Retail Award.

PN323

There is no dispute that the BOOT is met in the case in respect of the Retail Award and we say the approval should stand.

PN324

DEPUTY PRESIDENT GOSTENCNIK: So your clients are not conducting or are not the holders of a betting shop licence within the meaning of section 34?

PN325

MR BRYANT: No, your Honour. They are not bookmakers, your Honour, and that particular class is actually limited, for some curious reasons, to the city of Port Pirie. I can't tell your Honour why that is so, but it is so. Yes, they are really doing nothing more than, as it were, selling gambling products provided by a third party to members of the public from a retail environment. They assume no liability for those products. As a matter of aw they can't. They are engaged in retail operations.

PN326

They are my submissions unless the Commission wishes me to address any particular other matter?

PN327

JUSTICE BOULTON: Yes. We have your outline of submissions. I am going to mark it as exhibit TAA1 in these proceedings.

EXHIBIT #TAA1 OUTLINE OF SUBMISSIONS OF THE RESPONDENT

PN328

MR BRYANT: Thank you, sir.

PN329

DEPUTY PRESIDENT GOSTENCNIK: Thank you. Mr McNab.

PN330

MR McNAB: Your Honours, the intervenor has filed submissions and we ask them to be marked.

PN331

JUSTICE BOULTON: Yes, I will mark them as exhibit P1 in these proceedings.

EXHIBIT #P1 OUTLINE OF SUBMISSIONS OF THE INTERVENOR

PN332

MR McNAB: Thank you. Just one point, no doubt there are other small typographical errors in the submissions, but in paragraph 21, halfway down in those submissions, after the footnote 5, "the conclusion is only possible if the service and the act of entering in into a" - it should be "wagering contract" - "is considered out of retail setting." It should be "out of a retail setting", instead of "not of a retail setting" or "outside of a retail setting." So we rely upon the submissions.

PN333

If I could make some very brief submissions in relation to the procedural matters. In particular, the point was made that perhaps authorities of the kind like Metwally can by distinguished where it's a question of jurisdiction. In my submission, that might be the case where it's self-evident that the Commission doesn't have jurisdiction or it's not a matter of controversy and in that regard I refer the Commission to the decision of O'Brien v Komesaroff [1982] HCA. I haven't got a copy of it, but relevantly it says at page 319 of the CLR report:

PN334

In some cases when a question of law is raised for the first time in ultimate Court of Appeal, as for example upon the construction of a document or upon facts either admitted or proved beyond controversy, it is expedient in the interests of justice the question be argued and decided.

PN335

and the High Court there referred to a number of authorities,

PN336

However, this is not such a case. The facts are not admitted, nor are they beyond controversy.

PN337

So in this case, a finding that there is no jurisdiction is not beyond controversy. The controversy could have been dealt with below with evidence, and the appellant chose not to raise any issue before Bull C.

PN338

My learned friend and I'm not being critical of him, but I'm just drawing the attention of the Bench to the submission, in respect of material that might be put before the appeal bench, he made the point that that material could contain relevant evidence. It's simply speculative and it's certainly not in the cases that would put it into the exceptional bracket whereby leave would be granted to agitate fresh matters on appeal.

PN339

My second point, if I could make - - -

PN340

JUSTICE BOULTON: Are you going to give us a copy of that High Court authority?

PN341

MR McNAB: I haven't, but I can provide a copy to your chambers this afternoon.

PN342

JUSTICE BOULTON: Yes. Have you got the CLR reference.

PN343

MR McNAB: I have, but perhaps more conveniently, this group of cases which include the High Court's decision in Coulton v Holcombe, Metwally, O'Brien v Komesaroff are referred to in a decision of the Federal Court and a Full Court of the Federal Court of Dismin Investments Pty Ltd v The Federal Commissioner of Taxation [2001] FCA 690, but I will provide a copy of that to your chambers or to your associate.

PN344

JUSTICE BOULTON: 2000 and?

PN345

MR McNAB: [2001] FCA 690. It's a short decision and that's the attraction, it sets out very conveniently that group of cases and the passage that I've referred to from O'Brien v Komesaroff is set out at paragraph 33. The decision is relevant from paragraph 31; a series of cases, Suttor v Gundowda, all High Court authorities.

PN346

This is not fresh evidence, so it's not a fresh evidence case where evidence that wasn't available before the Bench has suddenly become available. So it's not a case of the reception of fresh evidence and the type of cases that deal with that. It was all there. It's simply a point that was not taken.

PN347

In relation to the appellant's reliance upon the decision of Australian Char Pty Ltd, I note that's a decision of Ryan C. From my limited research, the only point I've ever seen it referred to is in decisions of Ryan C, in a number of decisions. It would seem to run directly contrary to the example which is given in the Fair Work Commission bench book as to the operation of the access period.

PN348

It would also seem to run contrary to a commonsense reading of section 180(4) and section 181. Section 180(4) provides that:

PN349

The access period for a proposed enterprise agreement is a seven-day period ending immediately before the start of the voting process referred to in subsection 181(1).

PN350

The one goes to section 181(1):

PN351

An employer that will be covered by a proposed enterprise agreement may request the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it.

PN352

Then if you go further into section 181 to get the sense of the voting:

PN353

Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.

PN354

So the voting process in section 181 is the process of voting, rather than the process of requesting the employees. So what Ryan C is purporting to do is saying that the access period has to run seven days before the request is made. It doesn't make sense, with respect.

PN355

In terms of the second aspect of the appeal, you have the submission and I will not travel through them, save where necessary. Sometimes in these matters, when one is addressing the Bench you tend to ignore that actual words of the decision being appealed from and the process that the Commissioner has taken.

PN356

I am not suggesting the Bench would do that, but sometimes there's an argument that occurs, but in my submission when you read the decision of Bull C, then you have regard to the evidence that was before him, in particular, the transcript that is found behind tab 2 in the appellant's appeal book, in my submission the Commissioner has set out an orderly comprehensible decision which deals with those sections of the Act that he has to deal with and those issues in relation to the BOOT test that he's required to do.

PN357

There is no suggestion that he has misrepresented or misunderstood the submissions that were filed on behalf of the ASU. There is no suggestion that the findings of fact that he has made in respect of the nature of the work were not available to him to make.

PN358

So for instance - so just to remind the Full Bench - he sets out in a detailed way the interactions between the union and the employers in relation to the application. He refers to the submissions and then he makes findings of fact in paragraph 48, where he states that:

PN359

The applicant has stated the employees are engaged in retailing rather than wagering. The evidence has demonstrated that the employees are principally involved in cash handling, a duty that meets the definition of clerical work under the Clerks Award.

PN360

Then he goes on to make reference to the Retail Award. Now, that finding does not appear to have been the subject of any particular finding of fact about the handling of cash. It is not the subject of challenge and indeed, when you look at the transcript of the proceeding before him, at PN 37, "If I could take you to paragraph 16 of your statement" - this is where Mr Cooney is cross-examining Ms Williams:

PN361

If I can take you paragraph 16 of your statement, you say that essentially the -

PN362

JUSTICE BOULTON: Just give us a moment.

PN363

MR McNAB: Pardon me.

PN364

JUSTICE BOULTON: Where are you taking us to now?

PN365

MR McNAB: Sorry, I'm moving too quickly. Tab 2.

PN366

JUSTICE BOULTON: You are taking us to the statement of Ms Williams?

PN367

MR McNAB: No, I'm taking you to the transcript of the proceeding which is at tab 2 of the appellant's appeal book.

PN368

JUSTICE BOULTON: Yes. Paragraph 37 is it?

PN369

MR McNAB: PN 36 to PN 37 where Mr Cooney is asking Ms Williams about the work that she's doing there in the agency. I won't read it out, but it's there. And then at PN 41:

PN370

Could I put it to you that the basis that the employees who will be subject to this agreement essentially when they are taking and receiving bets are essentially just handling cash? That's the requirements of their duties?‑‑‑Pretty much, yes. That would be right.

 And the majorities of their duties would be only taking and handling of cash then?‑‑‑Yes, just like a shop assistant would. The customer would buy something and they'd take the money. The customer walks out with a ticket. He's bought the item of value and he's walked out. We've got the money for it.

PN371

So all that evidence was before the Commissioner. There was no challenge to the evidence that the sale was taken in a retail establishment. You note at paragraph 54:

PN372

The words "retail establishment are not defined in the Retail Award although it's not argued by the ASU that the word "premises" being standalone buildings or strip shops and described by the applicant as High Street businesses, were not retail establishments.

PN373

So in terms of the findings of fact that the Commissioner has made as to what is the work performed by the employees of agents, there is no basis for challenging those findings and nor is it suggested in the submissions that those findings of fact are wrong or not capable of being made.

PN374

At paragraph 61, Bull C sets out his understanding of the general principles for ascertaining award coverage and refers to a number of decisions there and, in my submission, he deals with the point which has been raised by the point this morning, that the real question is ascertaining what is the work done by people? It's not a question of whether it's a label of whether it's wagering or some other label is attached to it, it's what is the nature of the work performed. And as Bull C refers to the decision of the Full Bench in Carpenter v Corona Manufacturing and he's underlined it:

PN375

An examination must be made of the nature of the work and the circumstances in which the employees employed to do the work with a view to ascertaining the principle purpose for which the employee is employed.

PN376

Now, there's no challenge to that application of principle in the appeal.

PN377

In terms of the way that Bull C has dealt with the Full Bench Modernisation decision, in my submission his treatment of that or his application of it and analysis of it is properly founded on the material that was before him and involves no error. At paragraph 71 he concludes:

PN378

While clerks involved in wagering and cash handling also fall within the scope of the Clerks Award, further the reasons I've previously given I consider that the Retail Award more appropriately covers the classification of casual payer/salary in the agreement now before the Commission for approval.

PN379

So in my submission, the Commissioner has identified the evidence before him and set it out in a clear way. He's identified the task which he was required to engage in for the purposes of ascertaining what the real work was being performed by - - -

PN380

JUSTICE BOULTON: The Commissioner doesn't refer to this other Full Bench decision, does he?

PN381

MR McNAB: I don't know why that was, but one would have thought once again if it was relevant, that a memorandum would have sent to the Commissioner to by the union who were involved in the same case to say, "We think that this Full Court decision is relevant and you should take it into account in your determination of this application." But no memorandum was provided to the Commissioner.

PN382

JUSTICE BOULTON: No.

PN383

MR McNAB: And you will see that the dates on which it's heard - you see that the matter was heard on 8 September 2014. The decision was handed down on 9 January 2015 and the Full Bench decision was handed down 12 December 2014. However, the fact that the Commissioner has not dealt with that decision - and I expect it was because his attention was not drawn to it - the decision of the Full Bench in the Enterprise Award modernisation decision - the decision involving Acton SDP and Lee C and Spencer C - that is readily distinguishable because that decision is dealing with employees of THL and the particular work that they're doing and not concerned with the off-course agents who are in an entirely different situation contractually and in a different setting.

PN384

So it's not a question of the Commissioner failing to follow binding authority which might give rise to a jurisdictional error, it's true that he has not referred to it, but there is no error because that decision is, on its face, not binding on him. It's dealing with different types of employees.

PN385

He has referred to the Award Modernisation Decision, and as I've discussed has analysed it and distinguished it on the basis of the evidence that was before him. So that is not a case of him ignoring binding authority and for reasons that are set out in the written submissions, it's plain on the face of it that the passage that is extracted is provisional in nature. "At this stage" are the words in that passage.

PN386

Not that the Full Bench did not receive evidence from the agents as to the work that was being done by employees of agencies - excuse me. I presume the Full Bench has a folder of material that has been filed with the submissions of the intervenor?

PN387

JUSTICE BOULTON: Yes.

PN388

MR McNAB: So I will not go through them, but you will see that where a matter is raised in the submissions, the supporting material is provided to the Bench. So for instance, in the submissions at paragraphs 14 and 15 where we refer effectively to the history of the making of the Off-course Agents Award, we then refer to the decision of McDonald C and that is to be found at tab 5 and there is an index to the materials to assist.

PN389

So we make the point that where submissions are made on authority and the history of the matter, they are supported by material; they are not simply statements from the Bar Table or statements made in submissions without supporting material. I presume that you've had an opportunity to read the submissions that have been filed. Unless there are other matters that you wish me to deal with, to some extent I don't want to traverse the same ground as my learned friend Mr Bryant has traversed and nothing has arisen as a result of the submissions that have been made by my learned friend Mr Bakri which require me to deal further with. They are largely dealt with or they are dealt with in the material filed.

PN390

JUSTICE BOULTON: Perhaps I should just raise one matter; it struck me, for example, at paragraph 10 of your outline of submissions, it wouldn't necessarily seem to me to be apparent or open to us to make any findings as to what's happening with the Victorian off-course agents. That's not really a matter of evidence that was either before the Commissioner or before us, is it?

PN391

MR McNAB: That's so. We have - - -

PN392

JUSTICE BOULTON: You trace back some of the history of the various awards, but we wouldn't be making any rulings that specifically relate to the Victorian off-course agents, because we are just not in a position to do that.

PN393

MR McNAB: No, I accept that.

PN394

JUSTICE BOULTON: And that wasn't an issue before Commissioner.

PN395

MR McNAB: Correct, your Honour. We have filed a - - -

PN396

JUSTICE BOULTON: I mean, we understand your interest and what your position and arguments might be in the future and what you say are possible implications of any ruling that we might make, but no ruling that we might make would actually apply directly to the people you represent.

PN397

MR MCNAB: We accept that, but we would be indebted if the submissions of the respondents and the intervenor are accepted in relation to the correctness of the decision of Bull C, in order - so we can deal with this in the future -we would submit that it would be appropriate to note that submissions were made by the intervenor, that there is no material factual or legal difference in the nature of the enterprises conducted by Victorian off-course agents. However, we're not in a position to decide that with any finality.

PN398

JUSTICE BOULTON: We hear what you say and we'll give - - -

PN399

MR MCNAB: There's a real reason for this, your Honour, because if I can just quickly deal with this, the reality is that a number of years ago, an assertion was made by the Fair Work Ombudsman that the - this is from the Bar Table, but the material was before the Full Bench in the off-course agents application and Mr Cooney was involved in the proceedings so will be aware of what I'm saying. I don't think there's anything controversial.

PN400

The Fair Work Ombudsman was submitting that - pursuing agents on the basis that the proper award covering the enterprise was the Clerks Award. Submissions were put back that it wasn't the Clerks Award; in fact they were operating under an enterprise award. Then an application was made by the agents for a Modern Enterprise Award which was determined on the basis that the applicant didn't have proper standing to bring the application at the conclusion of the entire hearing of the case.

PN401

So the agents are in a position where they want to properly regulate their affairs and they want to be able to proceed to the Commission for the certification of an enterprise agreement without having to come up here again, without having to have some further argument as to what the proper award is. So the reason we are so interested in this award is we say that it properly determines and can be used as authority to say that the off-course agents are covered by the Retail Award.

PN402

Now, maybe you can't do that as a bench, but that's the reason we are making this submission. It's not simply an academic interest in the way awards work or the way the BOOT test works, because the consequences are if the Fair Work Ombudsman says, "Well, you are operating under the wrong award and you are underpaying people" there are penalties. The people who are running these businesses don't want to be in that position.

PN403

DEPUTY PRESIDENT GOSTENCNIK: As a matter of reality, that prospect is always available. I mean, even in this case in relation to the South Australian businesses, if we were to conclude that the General Retail Industry Award applies, it doesn't prevent the Ombudsman from bringing a proceeding in relation to things that occurred in the past to suggest that, "Well, it's very interesting but we think to the contrary and bring a proceeding in the Federal Court." We can't make a binding determination that as a matter of law the Clerks award does or doesn't apply. It's a view that we form or that Bull C forms in the context of making an assessment of whether or not the agreement passes the BOOT test. But as a matter of law, the award either applies or it doesn't apply and the Federal Court would make a determination of that matter if the Ombudsman would have been proceeding. So I'm not sure that it - I understand why you are making the - - -

PN404

MR McNAB: I fully understand your point too.

PN405

DEPUTY PRESIDENT GOSTENCNIK: But ultimately if we don't make mention of it you've got the transcript and the same point can be made to the Ombudsman through the transcript that you have put this submission. We're not in a position to determine the matter, because this concerns South Australian matters.

PN406

MR McNAB: I fully accept that. In those circumstances I've got no further submissions to make.

PN407

DEPUTY PRESIDENT GOSTENCNIK: Thank you.

PN408

MR BRYANT: Your Honours, before my learned friend replies, in the course of my submissions I referred to a particular provision and I couldn't located it and which I suggested was important and basically was the authorisation and it's indeed section 42 of the Authorised Betting Operations Act 2000, which provides that:

PN409

It is a condition of a licence that the licensee must not establish an office, branch or agency which the public may attend to make bets with the licensee without obtaining the authority's approval.

PN410

et cetera, and I draw the Commission's attention to that.

PN411

JUSTICE BOULTON: Thank you. Now, how long do you expect you will be, Mr Bakri?

PN412

MR BAKRI: Your Honour, I don't think I will be very long. I'd estimate about 15 minutes, if that, depending how many questions you have.

PN413

JUSTICE BOULTON: Yes, good. Thank you.

PN414

MR BAKRI: If you want to interrupt me partway through, if it's taking a bit longer than anticipated, that's fine with me as well. I will commence by responding to a few of the matters covered by my learned friend Mr Bryant.

PN415

Firstly, it was submitted that the evidence shows that the employees had ample knowledge of the agreement and that there was ultimately a unanimous vote. My submission is that it's irrelevant to the question of whether the pre‑approval requirements were met as to whether there was a unanimous vote or not. It should not be a matter that's taken into account.

PN416

It was also submitted that the employees have had a copy of an agreement in the same terms since November 2013. In my submission, it's irrelevant whether at a previous time. The employees were given a number proposed agreement that had either the same or similar terms, whatever the situation might be. There is no evidence before the Commission that the employees were told that the agreement was remaining the same.

PN417

So in those circumstances, it's not apparent how the employees could rely on a previous aborted attempt to have an agreement approved. It simply can't discharge the onus or, rather, discharge the requirement in section 182.

PN418

My learned friend made reference to the decision of CFMEU v Delta in support of the proposition that the ASU should not be allowed to raise the pre-approval requirements issue. In response to that submission, it's asserted that the circumstances of that decision are very different and should be distinguished. The appellant in that matter had contended that it should be allowed to raise three new issues, because it's industrial officer was not available of the day of the hearing due to the birth of a child and that that was the reason that the issues were not raised. That was the circumstances of that case.

PN419

It was found by the Full Bench in that case that on the day of the initial hearing an adjournment was not sought and that in advance of the hearing, submissions had been filed in support of the union's application which didn't raise these new issues. The appellant union also sought leave to adduce further evidence.

PN420

It's unclear on the face of the decision whether that further evidence relates to the new grounds and whether the new grounds were partly or completely dependent on that new evidence. One would assume that the new evidence probably was in relation to the new grounds.

PN421

In short, it's submitted that the circumstances in that case are very different to this case. The situation before the Commission now is that the union was not aware of the contents of the statutory declaration, not having been provided with a copy of it prior to the proceeding before Bull C and I should also say the union was not a bargaining representative within the meaning of the Act.

PN422

JUSTICE BOULTON: But there wasn't any suggestion that the union had sought this access to this, was there?

PN423

MR BAKRI: On my instructions, no, and I don't mean it to be taken that the union had sought access. It's accepted that access was not sought. Turning to the - - -

PN424

DEPUTY PRESIDENT GOSTENCNIK: Why isn't the Commissioner entitled in circumstances where you have a statutory declaration which on one view of it is in parts ambiguous. You have a union that comes along and challenges the application on a particular ground and does so at some length over some period of time, and implicit in making the application the employer is asserting that the application and the pre-approval steps meet the statutory requirements, why isn't the Commissioner entitled in those circumstances to simply accept that since there is no challenge to those particular matters that he's satisfied that the pre‑approval requirement have been met?

PN425

MR BAKRI: My response to that is that it's the Commission that has the statutory duty to apply the provisions of the Act when considering an agreement. And the fact that a party appearing before the Commission does not raise a particular issue does not detract from the fact that it's the Commission that has that statutory duty and is required to act within jurisdiction.

PN426

DEPUTY PRESIDENT GOSTENCNIK: That submission would have more force in circumstances where there hasn't been a contradictor and so that it's incumbent on the Commission to be satisfied from the material that is available be it not contested that the statutory requirements are met. But here you have a different circumstance. You have a contest, quite a vigorous contest.

PN427

MR BAKRI: My apologies. Your Honour, you had a situation here where there was an interested party that made submissions on another issue which did not have this particular document at that point in time. In my submission, the fact that the appellant had raised another concern about the approval of the agreement does not materially change the duty or the task which the Commissioner was charged with.

PN428

He needed to be satisfied that the pre-approval requirements were met and on the face of the statutory declaration, in my submission, he should not have been so satisfied and in making the decision he did, he fell into error.

PN429

DEPUTY PRESIDENT GOSTENCNIK: You don't make the submission that the statutory requirements were not satisfied? You simply make the submission that he couldn't have been satisfied that they weren't and it may well be that the further evidence is led that the pre-approval requirements have been satisfied.

PN430

MR BAKRI: That is right, your Honour. You characterise my submission correctly.

PN431

DEPUTY PRESIDENT GOSTENCNIK: So where is the public interest in granting permission?

PN432

MR BAKRI: Your Honour, there is a public interest in ensuring that the Commission does not act beyond jurisdiction. It's been accepted that where there is suggestion that the Commission at first instance exceeded its jurisdiction as is presently the submission before this Full Bench, that is a ground to grant permission.

PN433

DEPUTY PRESIDENT GOSTENCNIK: Only if we are persuaded by an argument that there wasn't sufficient material before him on which he could form that level of satisfaction.

PN434

MR BAKRI: I accept that. I will now turn to the submissions made my learned friend, Mr McNab. My learned friend referred to the Australian Char decision and commented that the decision is inconsistent with his interpretation of the bench book. My response to that is quite simply that a decision of a member of the Commission does have persuasive weight and ought to be respected, and the bench book has no relevance whatsoever to the interpretation of the Fair Work Act.

PN435

Finally, in response to my learned friend's request that the decision-maker reference to there being no factual or legal difference in Victoria, I echo some of the concerns that were raised by the bench. My client does not feel that that would be an appropriate course. There's simply been no evidence before the Commission as to the situation in Victoria. There's no factual controversy about the situation in Victoria.

PN436

If the intervenor decided to intervene in this case, it can't use this case to try to take a benefit for some other issue which is not to be determined. It's simply not appropriate to make - to include the obiter in the decision which is proposed. Those are the submissions of the appellant in reply.

PN437

JUSTICE BOULTON: Thank you, gentlemen, for all those submissions. Mr McNab, you'll advise this and with copies to the parties.

PN438

MR MCNAB: I'll certainly do that. Would you be assisted by the High Court authorities referred to therein or - - -

PN439

JUSTICE BOULTON: I think maybe if you just give us a copy of the extract or the decision of the Federal Court that you referred to and then we can trace it through.

PN440

MR MCNAB: Thank you. I will do that this afternoon.

PN441

JUSTICE BOULTON: Good. As I advised, we will be consulting with Blair C after the transcript is available of the proceedings and we will then confer and we will announce our decision in this matter in due course.

PN442

MR BAKRI: My apologies, your Honour. I was just asked by my instructor whether the parties will be forwarded the transcript, is that possible, via email?

PN443

JUSTICE BOULTON: Yes. We will send you a transcript. We will organise it such that it will be sent.

PN444

MR BAKRI: Thank you, your Honour. Sorry for that false start.

PN445

JUSTICE BOULTON: Yes, thank you. We will now adjourn.

ADJOURNED INDEFINITELY                                                         [12.47 PM]


LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #ASU1 APPELLANTS OUTLINE OF SUBMISSIONS.................. PN30

EXHIBIT #ASU2 SUPPLEMENTARY SUBMISSIONS OF APPELLANT.. PN30

EXHIBIT #TAA1 OUTLINE OF SUBMISSIONS OF THE RESPONDENT PN327

EXHIBIT #P1 OUTLINE OF SUBMISSIONS OF THE INTERVENOR..... PN331


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