C2015/2587, Transcript of Proceedings [2015] FWCTrans 295 (14 May 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1051829

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VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT KOVACIC
COMMISSIONER SIMPSON

C2015/2587

s.604 - Appeal of decisions

Clermont Coal Pty Ltd v Construction, Forestry, Mining and Energy Union
(C2015/2587)

Brisbane

2.03 PM, TUESDAY, 5 MAY 2015

PN1

VICE PRESIDENT CATANZARITI: I ll take appearances. Mr Murdoch?

PN2

MR J E MURDOCH: If the Commission pleases, Murdoch, initials J.E. I m appearing with my learned friend, Mr S MEEHAN, and we seek permission to appear for the appellant in this matter.

PN3

VICE PRESIDENT CATANZARITI: Thank you. Mr Reitano?

PN4

MR REITANO: If it please the Commission, I appear for the CFMEU. I m instructed by Mr Kentish.

PN5

VICE PRESIDENT CATANZARITI: Thank you. Both parties have legal representation in view of the matter of submission importance. Let the legal representation be granted. Mr Murdoch and Mr Reitano, we ve had the benefit of detailed written submissions. We now advise you to provide some brief oral submissions, because we think they re pretty comprehensive written submissions, but Mr Murdoch, over to you.

PN6

MR MURDOCH: Yes, thank you, your Honour. In the light of your Honour s comments, it s hardly necessary for me to ask that our written submissions be taken as read. The critical question in this matter is this; is it the parties by mutual agreement or the conciliator who selects the way in which an unresolved grievance is to be resolved? If one goes to the matter that was before the Commissioner, one sees from the application which is under the application tab in the appeal book, the way in which the CFMEU Mining and Energy Division bought the matter to the Fair Work Commission and it came as an application to deal with a dispute in accordance with the dispute settlement procedure.

PN7

Could I ask you to note, in paragraph 7 of the application, that the relief sought was this: the applicant is seeking a recommendation that the warning issued to Mr Joe Moore dated 17 December 2013 be removed from his disciplinary record. Self-evidently, the relief sought was for a recommendation, and a recommendation in specific terms. You will have seen from the precis of the background circumstances contained in the Commissioner s reasons that the controversy involved, among other things, controversy relating to two different versions of the events which had embroiled Mr Moore in relation to his involvement in taking time to represent an employee.

PN8

Any resolution of that controversy would appear to involve, among other things, a determination of fact and probably matters going to credit. But in any event, it s clear what was being sought when the matter came to the Commission. It is appropriate, then, to look at the avenue which enables the matter to come to the Commission, and that of course is the enterprise agreement which regulates the parties. I ll hand up, if I may, copies of the enterprise agreement because it is not in the appeal book.

PN9

VICE PRESIDENT CATANZARITI: I ll note that as exhibit A, for the record.

EXHIBIT #A COPY OF ENTERPRISE AGREEMENT

PN10

MR MURDOCH: Thank you. The relevant clause is at page 4. The relevant provisions are 4.1 and 4.2. Might I pause for a moment while the members read those provisions.

PN11

VICE PRESIDENT CATANZARITI: Yes, 4.2, Conciliation, 4.2(f), Arbitration. Yes.

PN12

MR MURDOCH: Now, it is to be noted that the clause in 4.1 deals expressly with the resolution of grievances between the company and employees, and there s an expression of intent that the resolution be direct. Now, you ll note also the breadth of the matters which are subject to the dispute resolution clause. It s not a clause that s confined to disputes arising under the agreement because it goes also to differences that arise under the National Employment Standards, employment generally, and then the rather large catch-all category of Other issues . Indeed, it is other issues, whether specific to Clermont Coal Mine or industry generally.

PN13

It s of interest that in 4.2, the first step refers to a grievance arising. When the matter gets to (b), the reference is not to a grievance but to a dispute, presumably because the unresolved matter of grievance is categorised by the parties as a dispute that remains unresolved. In any event, when one progresses through the first four steps, it brings the parties to (e):

PN14

Where a dispute remains unresolved after step (d) above, the employee may seek to refer the matter to Fair Work Australia for conciliation.

PN15

It s notable that it s the employee only who can refer the matter for conciliation. The parties appear to have excluded any right on the part of the employer to refer an unresolved grievance to conciliation. We emphasise that the clause appears personalised in the sense that it s an employee who can activate the conciliation and the process arises out of unresolved grievances between an employee and the employer. We would also emphasise that, pursuant to 4.1, there is considerable breadth in the range of matters which an employee could put into the grievance process and which, if unresolved, the employee could refer to conciliation.

PN16

Unresolved issues at large could include a myriad of matters pertaining to issues that many might consider quite remote from the actual workplace; transport arrangements for fly in and fly out workers, accommodation ‑ ‑ ‑

PN17

VICE PRESIDENT CATANZARITI: Is this going anywhere, Mr Murdoch, with respect to you? There s a narrow point in this appeal and I think you should focus on the narrow point of the appeal. The clause, as we see it, is pretty straightforward. Are you taking any point about how the matter was filed? I mean, you haven t argued that in the case below.

PN18

MR MURDOCH: What we wish you to note is that this was a matter in which the relief sought was a recommendation. It quickly ‑ ‑ ‑

PN19

VICE PRESIDENT CATANZARITI: Yes, and what do you say turns on it as relief? I mean, the point is really whether, in the power of conciliation, the Commission is empowered to make recommendations. That s the point in this case.

PN20

MR MURDOCH: It is the point of this case, but ‑ ‑ ‑

PN21

VICE PRESIDENT CATANZARITI: Well, that s the only point before us, the point in the case. We re not going to go into some academic extravaganza here, Mr Murdoch. Let s focus on the way the case was run before Commission Lewin and the specific points in dispute.

PN22

MR MURDOCH: Yes. May I, though, with your leave, point out that this was a case in which, right from the start, the employer expressed disagreement with the proposal that the conciliator embark upon the recommendation process. The significance of that is that there was no suggestion at any time that a recommendation was agreed between the parties.

PN23

VICE PRESIDENT CATANZARITI: Mr Murdoch, recommendations don t have to be agreed between the parties, as such. It s a question of whether the Commission has the power in the course of conciliation under this clause to give recommendations as part of the way it resolves the dispute as filed before it.

PN24

MR MURDOCH: That s right.

PN25

VICE PRESIDENT CATANZARITI: That s the only point of this case.

PN26

MR MURDOCH: That s right, but all of these matters occur in a context and all of them have a background, with respect, and I m simply endeavouring - and I m only taking a few minutes - to provide you with the background.

PN27

VICE PRESIDENT CATANZARITI: Yes. Proceed.

PN28

MR MURDOCH: The starting point, in our submission, is and necessarily has to be, what did the parties agree? The parties, in clause 4 of the enterprise agreement, confined themselves to conciliation, and that is significant because the agreement having been made in December 2012 was made at a time when the legislation provided several options in section 595(2) of the Fair Work Act. The provisions of subsection (2) provide these choices: mediation or conciliation; making a recommendation or expressing an opinion.

PN29

Now, clearly, in opting for conciliation, the parties declined to choose mediation. Likewise, in opting for conciliation, the parties have manifestly declined to accept either the making of a recommendation or the expression of an opinion as the means by which the parties desired that unresolved grievances would be determined with the assistance of a member of the Commission.

PN30

DEPUTY PRESIDENT KOVACIC: Mr Murdoch, what supports that intention, if I can put it that way, or is that just purely the appellant s understanding of what was agreed at the time?

PN31

MR MURDOCH: What supports it is what the enterprise agreement says. The parties refer to the settlement of the matter by conciliation by a member of the Fair Work Commission. They had the choice of selecting a mediation; they didn t pick it up. They had the choice of selecting a process of seeking a recommendation from the Fair Work Commission. In the agreement, they clearly opted ‑ ‑ ‑

PN32

DEPUTY PRESIDENT KOVACIC: But was that explicitly stated or canvassed between the parties?

PN33

MR MURDOCH: Well, with respect, one hits a very difficult area if one endeavours to go behind the agreement which has been voted upon and certified. It is, in my submission, not appropriate to endeavour to go back and pick apart the process of the negotiations between the parties. What was voted on, what was certified, is clause 4. Given that this legislative provision was in place, given that gave them choice of four means, and they select one, the inference is overwhelming. They chose conciliation.

PN34

Now, what is said against us, and I say this respectfully, with Lewin C, but it applies also to our opponents, is a very broad proposition that in effect everybody knows that in conciliation, recommendations are part of the armoury of the conciliator. That approach appears to have its genesis in a 2004 decision of the Full Bench of the predecessor, AIRC, in Finance Sector Union of Australia v ANZ Banking Group. We have some volumes of authorities, I can hand them up. The Finance Sector case is separate from the bundle, but might I take the opportunity to give the volumes of authorities.

PN35

What should be noted about the FSU case, paragraph 7 on page 3, is that in that matter, both parties accepted that the Commission had power to make a recommendation in respect of the matter in dispute, so that the controversy that exists in this case was not present in that matter. Likewise, at paragraph 41 of the reasons in that case, when the Full Bench were referring to the decision below, they said:

PN36

Reading his Honour s decision as a whole, it is apparent that he accepted that he had the requisite jurisdiction to make a recommendation.

PN37

So the comments that I will take you to are clearly in the nature of obiter. Paragraph 32 at page 7, the Full Bench said:

PN38

We make it clear that in our view the making of a recommendation is often a useful tool in the conciliator s armoury and can facilitate the parties reaching agreement.

PN39

Then at paragraph 34 they said:

PN40

Further, the making of a recommendation does not require the agreement of all parties.

PN41

Then at paragraph 39 on page 8, they said:

PN42

It seems to us that this part of the decision demonstrates some confusion in his Honour s mind as to the legal effect of a recommendation. The fact that the parties have, by agreement, excluded compulsory arbitration does not mean that the parties did not envisage the Commission making a recommendation during the course of conciliation proceedings.

PN43

So that as at March 2004, there was a Full Bench decision containing the obiter that I have taken you to, so that we d submit that it was of some significance that the introduction of the Fair Work Act in 2009, in section 595, was so meticulous in the way in which subsection (2) clearly delineated the various ways in which a dispute might be dealt with. Now, you will note, of course, that in section 595(2), it does say:

PN44

The FWC may deal with the dispute (other than by arbitration) as it considers appropriate, including by the following ways:

PN45

In the case where the power of the Commission to deal with a dispute comes via the dispute resolution clause in an enterprise agreement, the Commission is confined by the provisions of section 738 of the Fair Work Act, so that the reference in section 595(2) to as it considers appropriate is not available to it. It s not the Commission member who gets to pick the means of resolving the grievance, it s the parties who have the capacity and the sole capacity to select the means by which the unresolved grievance is to be determined.

PN46

So this is why the starting point in the resolution of the present controversy is the clause in the agreement. The provisions of section 595 are relevant because they provide context and they provide an appreciation of the way in which Parliament saw conciliation sitting vis- -vis the other dispute resolution methods that are set out and explicitly referred to, namely, mediation, recommendation or opinion.

PN47

VICE PRESIDENT CATANZARITI: So your point is unless the agreement specifically uses those words, conciliation has to be read down?

PN48

MR MURDOCH: Yes.

PN49

VICE PRESIDENT CATANZARITI: Yes. Well, you re either right or wrong on that, but that s your point, isn t it?

PN50

MR MURDOCH: It s an important point because where Parliament requires that a selection be made, and the parties make a selection ‑ ‑ ‑

PN51

VICE PRESIDENT CATANZARITI: Yes, because we d be interested to find whether there s any agreement in existence that actually uses the words making recommendation or expressing an opinion .

PN52

MR MURDOCH: Let me assist.

PN53

VICE PRESIDENT CATANZARITI: All right. Show us the ones you ve got.

PN54

MR MURDOCH: It s interesting that there is this throwaway line that one sees where people say, Oh, it s just part of the armoury. Conciliators have traditionally made recommendations , but when one actually goes and looks for recommendations which are published in the Commission, one sees that it s not a simplistic matter at all. So here is a February 2013 recommendation off the Commission s site, Australian Municipal Administrative and Clerical Services Union v Qantas Airways Limited, Booth DP.

PN55

VICE PRESIDENT CATANZARITI: Sorry, that s not what we have. We ve got a Bechtel ‑ ‑ ‑

PN56

MR MURDOCH: Okay. Well ‑ ‑ ‑

PN57

VICE PRESIDENT CATANZARITI: Now we have a Qantas decision. I am familiar with this decision, yes, but draw me to the specific part.

PN58

MR MURDOCH: Yes, certainly. On the second page, you ll see where the Deputy President sets out the particular dispute resolution clause that was the foundation for the recommendation. You ll see in the last dot point that the dispute resolution clause says:

PN59

- where either party requests conciliate or make recommendations about the particular aspects of the matter.

PN60

So this is a post-2009 agreement. It s a post-2009 situation where, in our submission, if the parties wish to empower the Commission to make recommendations, they say so. The other matter, the Bechtel matter, that is an example of a recommendation which arose because during the course of the conciliation, the parties agreed to jointly confer on the conciliator the power to make a recommendation, and we see that on the second page in paragraph 3.

PN61

COMMISSIONER SIMPSON: Mr Murdoch, the Bechtel issue proceeded under section 709 of the preceding legislation.

PN62

MR MURDOCH: The reason that we provided the Bechtel decision is that it demonstrates that one needs to be exceedingly careful when one reflects back through rose‑coloured glasses at the way conciliators have conducted themselves since 1904. Recommendations, in our submission, may have arisen under a variety of circumstances and I d suggest that in many instances they arose because in the process of conciliation, one of the outcomes of the conciliation was that the parties took up a suggestion that they should submit the contested item or items to the conciliator for a recommendation.

PN63

Now, that s not the case here because in this instance, our clients are opposed and have been implacably opposed to the recommendation process from the very start. On the matter of the reflection back on conciliation methodology in an historical sense, the use of the past practices as precedents needs to be used very cautiously. Firstly, because of the particular statutory formulation in the 2009 legislation that I ve taken you to, and also because the historical use of conciliation was conciliation as part of conciliation and arbitration for the prevention and settlement of industrial disputes.

PN64

Conciliation historically took place in the context of a compulsory regime where the parties were obligated to attend compulsory conferences and to submit themselves to compulsory conciliation and arbitration. It s a very different regime that exists in this particular case because of the fact that we re dealing with the grievances that are recognised by an enterprise agreement and the way in which the parties, the employees and the employer in that particular industrial context, selected a way to resolve their differences. I won t repeat myself by saying they were very specific in selecting only one of the available options. They might have chosen another option or they might have chosen more than one option; they didn t.

PN65

It is, in my submission, necessary to endeavour to objectively determine the wishes of the parties and one does that, of course, by looking at the particular wording that the employees used, but one also looks at the broader context and the context here is that there is an agreement which was entered into between the employer, Clermont Coal, and the employees. The union, at the time of approval of the agreement, became a party to it, but the genesis of the agreement is an agreement between employers and employees, and as I have emphasised, clause 4.1 of the agreement expresses the intent that there be direct resolution between the parties of their grievances.

PN66

We suggest that that tenor of individual grievances and the resolution of them needs to be contrasted with the regime which is advocated by the union in this matter. What I m referring to there is that the approach of the union is to say that all of the Commission s powers are available to it and in particular, that would embrace the full range of powers available to the Commission under section 590 of the Act, and when one looks at section 590(2) and goes down the list of (a) through to (i), one sees incredibly broad powers; compulsion that an employee attend, production of documents, conduct of hearings, et cetera, et cetera, et cetera.

PN67

Now, that broad approach where the Commission, through the mantle of conciliation, can fall back on any of its powers, is the position that s advocated in this matter by the respondent. It s the antithesis of what the parties, in our submission, clearly intended by this clause 4, which was to deal with individual grievances related not just to the agreement but to any issues. It was clearly a personalised process and yet the approach taken by the respondents is to say that all of the Commission s full range of powers are available to it.

PN68

In our submission, that would be an absurd, nonsensical result that would turn the process for the resolution of individual grievances into a litigious process, stopping only at the legal qualification that the results of the process would not be legally binding on the parties, but to get there under the approach taken by our opponents, the Commission could have the use of all of those interlocutory and other formal steps that are set out in section 590. The ‑ ‑ ‑

PN69

COMMISSIONER SIMPSON: Mr Murdoch, just teasing that out a bit, so would your view be, cognisant of the language in section 739, that is in dealing with this, the Fair Work Commission must not exercise any powers limited by the term, in the context of conciliation, would your view be the proper reading of the agreement is that a member wouldn t have power to compel someone to attend conciliation?

PN70

MR MURDOCH: Yes. The process, in our submission, is entirely consensual.

PN71

COMMISSIONER SIMPSON: Because of the fact that the powers under 590 are unavailable?

PN72

MR MURDOCH: Yes. The provisions, in our submission, under section 738, are quite explicit in paragraph (b) when they make the critical factor the inclusion of a term that provides a procedure for dealing with disputes, so that when one looks for the procedure, one looks to the term in the actual agreement. The term in this agreement is conciliation. In our submission, it s impermissible to look at large through the legislation for terms other than those which the parties have specified in their agreement. Indeed, when one looks at section 739, it s again clear - and an example of this is in subsection (1) - that the critical provision is the term which requires or allows the Fair Work Commission to deal with the dispute.

PN73

COMMISSIONER SIMPSON: I guess what is exercising my mind, though, is the power under 595 is available unless limited by the term.

PN74

MR MURDOCH: Yes.

PN75

COMMISSIONER SIMPSON: But the clause doesn t go into any specificity about the limitations to the powers that are all set out in 590 and the other provisions.

PN76

MR MURDOCH: Well, the limitation, in our submission, comes from the fact that the parties have included a term and the parties to this agreement which was post-2009 should be regarded as being aware of the choices that they had under section 595(2) and they chose a particular method and that was conciliation. Now, if you re against us in relation to our argument on section 590, that s not fatal to our primary argument because section 590, in our submission doesn t confer any power to make recommendations. The reason that, in our submission, recommendations are not a means that is available is that when one goes back to the agreement and looks at which of the methods referred to in section 595(2) are to be used, only one of the four stipulated methods was picked up by the parties.

PN77

One could understand why employees who bring grievances, perhaps of a personal nature, into the dispute resolution process would not want the publication of recommendations. One could readily understand why the parties would not wish these individual issues to become matters of public knowledge and public controversy, which of course they become when the Commission issues a recommendation. In the submissions of our learned friends, they refer to ‑ ‑ ‑

PN78

VICE PRESIDENT CATANZARITI: Just before you move on, Mr Murdoch, the submission you just made is inviting us to form a view without any evidence as to what happened at the negotiation of this agreement.

PN79

MR MURDOCH: No, it s not.

PN80

VICE PRESIDENT CATANZARITI: Well, you ve just said individuals consciously took a view - one might well imagine that the individuals don t want recommendations made, et cetera, and throughout your submissions today, you are trying to put - it seems to me that you re having a bet both ways in that you re inviting us to say, you know, on the one hand the agreement says what it says; on the other hand, you have to form a view these individuals came in with this acquired knowledge that they knew what they were negotiating to, that they were carving out sections of the legislation.

PN81

Really, today, we re only dealing with a construction point of what the agreement is. We can t be forming views as to what happened into entering into the agreement, there being no evidence before us, or before Lewin C.

PN82

MR MURDOCH: The correct approach, in our submission, is to look at the words of the agreement, look at the particular clause, look at the context of the agreement and look at the legislative background against which it was made. The legislative background taking you to the legislative background, in my submission, is of relevance because one has to assume that the parties who had the sophistication to negotiate ‑ ‑ ‑

PN83

VICE PRESIDENT CATANZARITI: Well, you can t go that far, Mr Murdoch, because you re relying upon, as you say, that employees made this agreement, the union came in later.

PN84

MR MURDOCH: Yes.

PN85

VICE PRESIDENT CATANZARITI: We can t form a view they were sophisticated and knew what they were entering into. We ve got to look at the agreement as it stands, and what the agreement means.

PN86

MR MURDOCH: Yes.

PN87

VICE PRESIDENT CATANZARITI: So any submission that deals with what happened in the way this agreement was negotiated, without evidence, can t be taken into account. We can deal with the legislative context ‑ ‑ ‑

PN88

MR MURDOCH: Yes.

PN89

VICE PRESIDENT CATANZARITI: ‑ ‑ ‑ and limit it to that, but nothing to do with how the agreement was entered into. There is just no evidence.

PN90

MR MURDOCH: Well, with respect, there doesn t need to be evidence because ‑ ‑ ‑

PN91

VICE PRESIDENT CATANZARITI: Well, Mr Murdoch, there does if you keep on using reference back to the individuals and the fact they were sophisticated, and I ve been taking notes in terms of the way you ve been running this. That line of reasoning doesn t even appear in your submissions, actually, in that form. It s not helpful to us. We ve got to stick to what does the clause actually mean, and how to interpret it.

PN92

MR MURDOCH: Yes, and I m endeavouring to assist by ‑ ‑ ‑

PN93

VICE PRESIDENT CATANZARITI: Well, not by telling us the individuals were sophisticated or otherwise, and they knew precisely that they made a conscious choice of choosing the words with precision, that they were carving out the ability to make recommendations. You can do it by a construction point, but not by suggesting they knew about it. There s just no evidence.

PN94

MR MURDOCH: The ordinary courts of the land have long presumed that citizens will comply with the laws of the land and they do so on the basis that citizens are presumed to be aware of the basis of those laws.

PN95

VICE PRESIDENT CATANZARITI: All right. Well, I understand the submission. Let s move on, Mr Murdoch, I think it s going nowhere, that point. Go on. Go on to your next point.

PN96

MR MURDOCH: Well, in terms of the state of knowledge of the parties, you ll note that Mr Moore is represented by the union. The application is brought on his behalf by the CFMEU, so that whilst the agreement is between individuals, one I think would sensibly conclude that Mr Moore, the individual, was not without recourse to advice and assistance from the union. But the law is the law.

PN97

VICE PRESIDENT CATANZARITI: Yes, but the interpretation of this is not about what happened in Mr Moore s case. We re looking at the interpretation of the agreement as what it actually means, not what happened on this particular - what Mr Moore sought, was the capacity to issue a recommendation or not? It s a construction point.

PN98

MR MURDOCH: Yes, and the construction point is that where a document specifies a particular means of achieving a particular end, that pre-eminence should be given to the means that the parties specify, not another means that was available that the parties didn t specify. It is, in my submission, fundamental that one adopts what the parties have expressed, not what the parties have not expressed, particularly where, on the face of the clause, there s no basis upon which there is any foundation for drawing an inference that in designating conciliation, the parties had intended to pick up alternate methods, such as an advisory opinion or a recommendation or a mediation.

PN99

Once you depart from what the parties have expressly stated, the challenge becomes where do you start and where do you finish? Do you say that, oh well, they said conciliation, but really, if the Commission chooses to in conciliation, the Commission can do an advisory opinion, or the Commission can run it as a mediation. It s unsafe and it is, with respect, clearly perverse to depart from what the parties have specified and to suggest that there s some basis in what is alleged to be historical practice for picking up these other methods.

PN100

Unless I can assist any further, they re our submissions.

PN101

VICE PRESIDENT CATANZARITI: Mr Reitano?

PN102

MR REITANO: I don t intend to repeat what I said in my written submissions, but I do want to make a number of points. The starting point for dealing with the issue at hand is the enterprise agreement. The enterprise agreement results in, at step (b), affording to this Commission the facility of resolving the dispute by the process, and I deliberately use an underline, process of conciliation. That is undeniable. The question becomes, what does conciliation mean? And whether obiter or otherwise, the decision in Finance Sector Union is the most recent, and most well-known dissertation on the meaning of conciliation insofar as, at least, recommendations as being an incident of conciliation might be concerned.

PN103

When the parties to this agreement provided for conciliation, they didn t limit - and again, underlined - they didn t limit conciliation in any way. I ll come to why the word process is important and why the word limit is important in terms of my submission. Nor did they take any step to limit any other power that is available to the Commission by their agreement. They simply said that the facility of conciliation will be available to resolve our disputes.

PN104

Can I develop, firstly, perhaps dealing with them backwards, why I say that the word limit is important, and I want to draw on something that my learned friend helpfully provided to the Full Bench, which we say is largely irrelevant, but illustrates my point. Firstly, section 739(3) of the Act provides:

PN105

In dealing with a dispute, the FWC must not exercise any powers limited by the term.

PN106

The reason I underline the word limit when I referred to the submission is that the provision in the agreement simply says it goes for conciliation. There is no limitation otherwise imposed on the power of the Commission. Why is this important? Because if you go to, as I think the learned Commissioner fastened onto, section 590, it refers to all the procedural powers available to the Commission. The procedural powers include, for example, the power to compel someone to come here, the power for someone to produce documents, and so on. I m not going to list them all off.

PN107

But all of those powers are available to this Commission, not simply as an adjunct or as part of its role in arbitrating or dealing with other matters, unfair dismissal claims and the like, but also are powers available. Section 590 is not limited, does not take away those powers, in terms of conciliation. It doesn t depend, in my respectful submission, in my learned friend s client consenting to come to conciliation. If they don t come, they can be compelled because the agreement of the parties is that the Commission shall have power to conciliate, and there are no other words of limitation that proscribe the Commission from exercising powers available to give effect to the process - again, I use the word deliberately - of conciliation.

PN108

As I say, it s largely irrelevant what other people might have agreed, including Qantas and the ASU, but could I ask the Commission to go to the document that my learned friend handed up, the recommendation of Booth DP, because it starkly illustrates my point. If one goes to the bottom of page 3, the procedure is referred to, and over to the top, you ll see the five dot points and I ll just use two of the dot points to illustrate the point. You will see that, in the third dot point, request but not compel. The second page, your Honour, at paragraph - it s not numbered on the second page, but it s part of paragraph 3.

PN109

It sets out the five particular things that are attracted by these dispute settling procedures that other people agreed to, but you will see in the third dot point, Request but not compel a person to attend proceedings. So these parties have decided to limit the power that would otherwise be available to the Commission by the term of their agreement, limiting section 590(2)(a). The Commission cannot require, it can only request. Likewise, in respect to the production of documents. So the powers of the Commission under 590, for the purpose of this agreement in respect of dispute resolution, have been cut down; as I say, an illustration of section 739(3).

PN110

I want to stay on this for a moment, but it neatly moves in to my next point, and that is this; putting aside the relevance for the moment, because we say it s largely irrelevant, but putting aside for the moment, for the purpose of the debate, and meeting my friend on his home ground, as it were, section 595 refers to, in subsection (2)(a), two processes: conciliation and mediation. It would be an interesting concept for Clermont to turn up here and say, Well, we ll conciliate, but we re not going to mediate, and because the terms are different, we re going to debate the toss on what you can do and what you can t do.

PN111

But you will note, for present purposes, that both of those things involve a process. If you like, like arbitration. It involves a process. Conciliation starts at some point, it ends at some point. It can have a number of steps. I ve said some of these things in my written submissions. You can have conferences, you can talk to the parties separately, you can require them to produce documents, you can do a whole range of things, but one thing you cannot do is impose a solution on them. Some conciliators try harder than others. Some won t rest until they ve resolved the dispute by getting an agreement. Sir Laurence Street in New South Wales had a reputation for keeping people locked up for days on end without letting them sleep until they agreed.

PN112

But some conciliators try harder than others. Some are more original, and more forward-thinking in terms of the ideas they bring. Some have more imagination. The point is that there are whole host of things that a conciliator can do in the course of conciliation. One of them, we say, is make recommendations, but that is not all that conciliation is about and it s not all that the process is about. You might, as part of a conciliation, recommend that the union sends its workers back to work and then come along and have a private arbitration, a very historical and simple way in which disputes have been resolved since well before - my friend limits it to 1904 - well before 1904. A part of industrial relations for a very long time in this country. Go back to work and then we ll have a private arbitration. That s what I recommend , and the parties can accept that or not, and they do that as part of a conciliation process.

PN113

You will note in the fifth dot point of the Qantas dispute resolution procedure another illustration of what we say section 595 is about, Where either party requests - I think it should mean conciliation , it says conciliate , but I think it means conciliation , it doesn t otherwise make sense: Where either party requests - I m sorry, there s a comma, I ve missed it. Conciliate, engage in the process of conciliation. So the first request is that you can conciliate or alternatively you can make recommendations. You can take part of what would otherwise be in the process and just do that.

PN114

So we don t want you to bother about convening conferences, we don t want you to bother about seeing the parties separately, we just want you to make a recommendation or a series of recommendations. We re not interested in anything else. Just deal with that. It is difficult to imagine a conciliation or mediation of any kind occurring absent the expression of opinions, subsection 595(2)(b) or absent the making of recommendations. It doesn t matter, to illustrate the point. It is difficult to imagine. Would we sit around, starry-eyed, looking into each other s eyes and the Commissioner or the conciliator would be bound not to do anything for fear that he might express an opinion or recommend something.

PN115

The proper construction of 595(2)(a) and (b) is the legislature was saying, These are all the types of things, any and all of these things are the things that the Commission can do if it considers appropriate , and the one thing it can t do, unless it s expressly authorised, is subsection (3), arbitrate. But everything else, knock yourself out, think of the different ways. Qantas thought of a different way in their agreement with the ASU, or the ASU thought of a different way in their agreement. You re not limited to the things that we re providing. These are the types of things you can do. You re limited, perhaps, by imagination, but that s about it.

PN116

But you can simply provide for a process of conciliation, you can simply provide for a process of mediation, you can simply provide for having a recommendation and nothing else and not wasting any time and getting on with things. You can simply provide for coming along to the Commission and saying, What do you think? What do you think we should do , and the Commission expresses an opinion; nothing more, nothing less. That s what the section is about. All of what I ve said, and I think I ve used these words in the written submission, much of this is a distraction because the real issue here, in terms of the - well, the real two issues, if you like, the simple one is, what does conciliation mean in the clause of the agreement, 4.2(e), and we say it just involves everything that goes along with conciliation.

PN117

Is there any limit imposed that would cause section 739(3) to bite on conciliation, by excluding recommendations? No. We invite the Commission, I ll hand up before I sit down all of the decisions minus Finance Sector Union because my learned friend handed it up, that are referred to in our written submissions. I don t want to stand here reading authority to the Commission, but now what has become, I think, the well-known passage in Crookes v CSR Limited from Madgwick J sitting in the Industrial Relations Court of Australia, at 184, under the heading Legal Principles .

PN118

When industrial parties such as Clermont v the CFMEU agree to conciliation, the sensible approach of asking what did they have in mind is to say, what is the well-known, ordinary test? My learned friend, in deprecatory terms, suggests that our submission that everybody knows has no merit. Well, with respect, we have a Full Bench of the Commission in 2004 on side with us, and we have time immemorial on side with us. If the legislature in section 595, or indeed, in 739, intended that conciliation was to have some different meaning from the ordinary, well‑known industrial usage that s attributed to it, then the legislature would well have said so.

PN119

I ve said what I wanted to say, I m only repeating myself, but other than illustrating the way in which the Act operates, questions like what other people provided in their Bechtel agreement or provided in the course of their Bechtel conciliation, or what may have been done in the Qantas agreement, are strictly irrelevant to the meaning to be ascribed to the clause of the parties in this agreement. We say that the decision below is unremarkable, it s unaffected by error. The word conciliation has long included the power to make recommendations.

PN120

I did omit one point, and that is this; I note that my learned friend started, and I m not saying that in any way critically of him, by referring to the relief sought, AB23 being the recommendation. Of course, Lewin C, firstly, has a discretion as to whether he makes any recommendation and he s referred to that in his decision, but secondly, he s not bound by what the CFMEU seeks as the ultimate resolution of the process of conciliation, or as part of it. His power, I think, is taken from the Act which doesn t limit him to the particular type of relief that is sought.

PN121

The Commission is not bound, in making any decisions, and I know that that doesn t fit conveniently into the phraseology of conciliation or recommendations , but section 599 does not require the Commission to make a decision in relation to an application in the terms applied for, and it s entirely unremarkable that the parties might come along and say, We want a recommendation and Lewin C might say, Well, for discretionary reasons, I m not going to do that, but I m going to engage in another process as part of the process of conciliation. I m going to do other things that are designed to get agreement.

PN122

He hasn t got to that stage yet because he s being challenged about simply the question of whether he has power to make a recommendation. If it please the Commission, those are the submissions that we make.

PN123

VICE PRESIDENT CATANZARITI: Mr Murdoch?

PN124

MR MURDOCH: With respect, the legally impermissible approach that the core of the case for the respondent is this proposition that everybody knows that that s what conciliation means, in my submission, it s founded upon some obiter in the Finance Sector Union case that I referred you to, and further to that, that case has been overtaken by the 2009 legislation and in our submission, the fact that the 2009 legislation adopted the very specific formulation that it did in section 595 suggests that there s no basis for travelling back through a vague excursion into what allegedly has been the traditional approach of the Commission.

PN125

It is very easy to say, Oh, everybody knows what conciliation is , but if one recognises that in the past, conciliators have made recommendations, one needs to carefully examine the context in which they made them. Was it the post-1904 compulsory conference, conciliation and arbitration, or was it a recommendation in a more modern context such as in the Qantas agreement where the agreement itself provided for both conciliation and recommendations? One should be very careful before one buys this line that conciliation always involves the capacity to make a recommendation.

PN126

Additionally, the argument advanced by the respondent that the parties would have to sit around staring at the wall if our approach was followed is, with respect, a baseless approach. No one is suggesting that the conciliator would be precluded from inviting the parties to express their views, nor is there any basis for saying that the conciliator couldn t make suggestion, canvass options with the parties. All of those traditional methods of conciliation are available and are unhindered if one adopts the sensible approach which we have suggested, and that is, to carefully exclude the option of recommendations which has been dealt with as a separate and distinct category under section 595.

PN127

They are our submissions.

PN128

VICE PRESIDENT CATANZARITI: Decision is reserved. The Commission is adjourned.

ADJOURNED INDEFINITELY [3.15 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A COPY OF ENTERPRISE AGREEMENT.................................... PN9