C2015/5710, Transcript of Proceedings [2015] FWCTrans 564 (13 October 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052483

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SENIOR DEPUTY PRESIDENT ACTON
DEPUTY PRESIDENT GOOLEY
COMMISSIONER ROE

C2015/5710

s.604 - Appeal of decisions

The Griffin Coal Mining Company Pty Ltd v Construction, Forestry, Mining and Energy Union
(C2015/5710)

Perth

9.12 AM, WEDNESDAY, 23 SEPTEMBER 2015

PN1

SENIOR DEPUTY PRESIDENT ACTON: Could I have the appearances, please.

PN2

MR A POWER: May it please the Full Bench, I seek permission to appear on behalf of the appellant.

PN3

SENIOR DEPUTY PRESIDENT ACTON: Thank you.

PN4

MR J NOLAN: May it please the Commission, I seek permission to appear on behalf of the respondent, the CFMEU.

PN5

SENIOR DEPUTY PRESIDENT ACTON: Permission to appear is granted in both instances pursuant to section 596(2)(a). Gentlemen, we've read the written submissions that have been filed. There's no need to repeat those, so anything you wish to add. Mr Power?

PN6

MR POWER: I'm very grateful to your Honours for that advice. What I would like to do in that case is not slavishly follow the outline of submissions. That would be of assistance to me. I would like, however, if the Bench is so minded to permit me to do so, to go to some of the issues which I perceive might be the subject of some controversy, and to deal with them.

PN7

SENIOR DEPUTY PRESIDENT ACTON: Yes.

PN8

MR POWER: And the Bench will, of course, understand that merely because I don't deal with submissions that appear in the written submissions I don't abandon them in any way.

PN9

SENIOR DEPUTY PRESIDENT ACTON: Certainly.

PN10

MR POWER: But what I would like to do is to deal with what I perceive to be at the crux of this appeal. Can I go to that straight away. The Bench ‑ ‑ ‑

PN11

SENIOR DEPUTY PRESIDENT ACTON: Just before you do, Mr Power.

PN12

MR POWER: Yes.

PN13

SENIOR DEPUTY PRESIDENT ACTON: There's just an administrative matter I need to attend to. Yes, Mr Power?

PN14

MR POWER: Yes. Thank you, your Honour. Your Honour will of course, and members of the Bench, will of course understand that at the very heart of this appeal are two findings that were made by the learned Commissioner at first instance, and they are the findings that are made at paragraphs 94, 97 and 98 of the reasons for decision. And they are the findings which appear in paragraphs 10 and 11 of the outline of submissions at page 3. If the members of the Bench want to go to those paragraphs.

PN15

The first of them is the finding made by the learned Commissioner that a roster different from that in schedule C, and an annualised salary different from that in schedule A are permissible. The second important finding is that neither clause 9 nor clause 10 determine how a different roster to that in schedule C can be introduced, and nor do they indicate whether it can be implemented unilaterally by the employer.

PN16

Now, what needs to be said about those two findings is they're not the subject of anything in the notice of contention. In fact, they're not challenged at all. And where that leaves one is in this position: that this agreement clearly provides for a change in the roster, but then has no specific provision which spells out how that can be done; what a new roster would look like that, that is, what characteristics it would have, and nor does it say whether it could be done unilaterally by the employer or not.

PN17

So when reference is made to clause 7, which is the entire agreement clause in this agreement, that clause takes on quite a different significance here. Clause 7 of the agreement is worth going to. May I take the members of the Bench to it? You'll find clause 7 at page 115 of the appeal book.

PN18

SENIOR DEPUTY PRESIDENT ACTON: Yes. Just hang on a second. What page is it again? One hundred and seventeen?

PN19

MR POWER: One hundred and fifteen, your Honour.

PN20

SENIOR DEPUTY PRESIDENT ACTON: Yes, Mr Power.

PN21

MR POWER: And you'll see that it has two parts: 7.1 and 7.2. I only need to take the Bench's attention to 7.1. And there's only really one part of this that's important. You will see, exceptions and provisos aside, that in line 1 and going into line 2, clause 7.1 provides that:

PN22

This agreement is the entire agreement between the parties.

PN23

Let me add a few submissions to that. There's no question that this, on the careful reading, appears to be and is a comprehensive agreement dealing with many aspects of the employment relationship. No question about that. But this entire agreement clause, and these words in particular, do no more in this case than affirm what is the subject of the agreement between the parties. What this entire agreement clause does not do is it does not tell you what was not the subject of agreement between the parties. And it's what's not the subject of the agreement between the parties that caused the difficulty at first instance, which then gave rise to this appeal.

PN24

If I could just take the Commission back to what I submitted a moment ago. What is not the subject of agreement between the parties and what is not in this agreement is how a new roster would be introduced; what characteristics it would have; and whether it could be introduced unilaterally or not by the employer. That is not the subject of agreement, and it is not the subject of any term in this agreement. So if you look in this agreement for a term that deals with any of those matters, you will not find it.

PN25

The Bench may have had time, or members of the Bench, may have had time to look through the balance of this agreement and if you have you will see that there are a number of difficulties throughout this agreement, probably the result of it being an iteration of previous agreements with similar characteristics. But whichever way you look at it this is an agreement with a lot of drafting problems in it. Now, of course, we recognise at the outset, and we accept, that the principles by which an agreement of this kind should be construed are those generous principles that apply to the construction of industrial instruments. We have no difficulty with that.

PN26

Apart from clause 7, which does not assist, there are some other clauses which I want to take the Bench to. Can I take the Bench to clause 9. Clause 9 appears on page 119 of the appeal book. Clause 9.1 deals with hours of work. Clause 9.2 deals with rosters. I'll start with clause 9.1. You can see that the second sentence of clause 9.1 deals with the current annualised salary. It does so by reference to schedule A. Can I just pause there for a moment. Can the members hear me because I've got an air-conditioner rattling just above me. Am I coming across clearly?

PN27

SENIOR DEPUTY PRESIDENT ACTON: I can hear you. As can my colleagues.

PN28

COMMISSIONER ROE: Yes.

PN29

MR POWER: Thank you. If it becomes intolerable I'll say something.

PN30

SENIOR DEPUTY PRESIDENT ACTON: Fine.

PN31

MR POWER: So what these sets of words do is they make it clear that the current salary is that which can be found in schedule A. So there's a limitation immediately on the function and purpose that schedule A serves. It then, two lines down, goes on to refer to the average weekly hours of work for full-time employees, and doesn't stop there. It says:

PN32

full-time employees are 42 hours for schedule A.

PN33

So again what this part of this clause is doing is it is linking the average weekly hours of 42 hours per week to schedule A. Schedule A we know contains the current annualised salary. So it is all about identifying with some precision that the 42 hours a week and the salary is related to schedule A, and schedule A, we know, is the current schedule which identifies the annualised salary. So it is fixed at a point in time by reference to certain parameters.

PN34

Then when you go to 9.2, which is on the same page of the appeal book, you'll see that it refers to the current roster employees working as that being in schedule C. Now, the Bench will know, from the written submissions that I make some point about this later on in dealing with the grounds of appeal. I'm not going to repeat those. Can I go to the definitions in 4.1 because they have a bearing on how you should construe 9.1 and 9.2. The relevant definitions appear on page 113 and 114. And the one I want to take the Bench to is the definition of shift. It's towards the bottom of page 114. I won't read it to you but the one noticeable thing about it is it does not say that a shift shall be 12 hours in duration. What you won't find in the definitions part of this agreement is a definition of what a roster is.

PN35

Can I then take you to clause 10.1. Clause 10.1 appears on page 121. And 10.1 has a number of notable aspects to it. The first is at the very commencement of it. It is said to be subject to this agreement. Now, this is a provision which serves a number of functions. As you can see by reading through it it first of all describes the entitlement to an annualised salary in accordance with schedule A. Schedule A, of course, is the current annualised salary, as we know from 9.1. What it then does is it provides a mechanism whereby if a new roster is introduced, the annualised salary in schedule A ceases to be payable. And it then provides, as the third part of the mechanism, that a new annualised salary will be agreed, and then interestingly in brackets:

PN36

or determined by Fair Work Australia

PN37

as it then was.

PN38

Now, the final component of 10.1 is that it then provides that the new annualised salary, that is, the one that kicks in when the new roster is introduced, is to be calculated using the principles in schedule A. Now, when you go to schedule A, and I can take you to that, at page 138 of the appeal book. Does the Bench have page 138 of the appeal book? Thank you. And you'll see that it provides for salaries over the space of two pages, a page and-a-half in reality, page 138 and 139. But when you look for the principles about which clause 10.1 speaks you don't find them there. So it doesn't set out any principles of the kind that you would expect to see. The Bench would know from reviewing the papers for this appeal that one of the documents which was tendered at first instance was the previous version, and the previous version appears at pages 165 to 166. If you go to that, to page 166 does the Bench have that?

PN39

SENIOR DEPUTY PRESIDENT ACTON: Yes.

PN40

MR POWER: Thank you. You'll see about a quarter of the way down the page a heading, Calculation Principles Ordinary Hourly Rates. Now, the Bench I'm sure will have had the opportunity to review this, but, if it hasn't, you can see that what is set out there is a formula for calculation of the hourly rate by using the number of hours and the hourly rate per hour according to whether it's an ordinary hour or a penalty rate hour. So, it works out the hourly rate as a matter of simple arithmetic.

PN41

Now, this set of principles doesn't appear in schedule A to the current agreement. And that's one of the deficiencies about which I made a submission a moment ago. Does that mean then, I ask rhetorically, that there are no principles to be used when applying 10.1?

PN42

SENIOR DEPUTY PRESIDENT ACTON: They've picked up the wording in the extant agreement from the previous agreement in 10.1; is that right?

PN43

MR POWER: Yes.

PN44

SENIOR DEPUTY PRESIDENT ACTON: Yes.

PN45

MR POWER: So when you go back to 10.1, and I'm sorry to leap about, if it please, your Honour, you can see that there is this provision at the end, the last sentence in 10.1:

PN46

The new annualised salary must be calculated using the principles in schedule A.

PN47

Well, there are no principles. Does that mean that the new annualised salary is to be calculated in some other way? In my submission, it borders really on reading into the agreement words which are not there. But you have to try and give them some sort of sensible application. And when you go to the previous agreement, you can see what's done there. It's a straight out arithmetical calculation using hourly rates, number of hours, roster cycles per year, so you can see how it's done. And there would be nothing wrong with applying a similar sort of approach to try and work out the annualised salary using 10.1. But the agreement doesn't say that. The agreement doesn't actually give you a set of principles for working it out.

PN48

The reason I highlight this fourth point and dwell on for a little bit is simply because it again makes the point that in this agreement, whilst it has the appearance of being comprehensive, there are parts, important parts of it, which are just absent. And if you looked at this agreement closely you could find parts of it which would tend strongly to support an inference that matters which should have been agreed in it and recorded in it are not. So there are instances in this agreement where you would reasonably and properly infer that certain matters were not the subject of what was agreed between the parties, and one of them is critical to this appeal, and that is, there is no agreement, in the appellant's submission, about how a new roster would be introduced, what it would look like, and whether it could be done unilaterally by the employer.

PN49

And where we say the learned Commissioner went wrong is that he had two competing arguments put to him. The argument put to him by the employer was that this agreement had two characteristics which were relevant and supported the employer's argument. The first was that there's nothing in this agreement that told him how a new roster would be introduced, what it would look like, or whether the employer could do it unilaterally. And more importantly this agreement contained no provision which prohibited the employer from unilaterally introducing and implementing the roster which it proposed, and that roster you can see is the one that is referred to in footnote 2 to the submissions. So that's the roster that required employees to work, or would require employees to work five days a week, Monday to Friday on a seven hour roster.

PN50

DEPUTY PRESIDENT GOOLEY: So, is it the case under your construction of this agreement the employer could unilaterally have reduced the wage rates back to the award?

PN51

MR POWER: That's why I make the difference between introduction and implementation, and I understand and accept your concern, and the point you raise about it, your Honour. We say that there are, under this agreement, and this is I hope evident from the written submissions, a number of ways in which a new roster might be introduced and implemented. Would it be convenient for me to deal with them now, your Honour?

PN52

SENIOR DEPUTY PRESIDENT ACTON: Yes.

PN53

MR POWER: Thank you. One way in which a new roster could be introduced is by the exercise of managerial prerogative. Another way in which it could be addressed is by the use of clause 21. Another way in which it could be addressed is by variation. But the argument against us, based on the finding, and this was the finding of the learned Commissioner at first instance, was there's only one way of doing it, and that is by a variation, and we say that's wrong for the reasons that we advanced in the written outline of submissions.

PN54

Can I just continue I can see that another one of your Honours is troubled by this, but can I just deal with that argument first? So we say there is more than way of introducing it. And then there comes the question of implementation. This is the practical question. How would it actually be done? In this day and age it would be an extraordinary thing for an employer to simply go to its employees and say, "We are going to introduce this new roster. These are the terms on which the roster will operate, and you will work them." That's not what happened, and you know that from the evidence in this case, and I can take you to that if you would like me to, just very quickly.

PN55

Your Honours will find that in the evidence of Mr Raj Kumar Roy at appeal books pages 95 to 97, paragraphs 61 to 67. What you can see from those passages is that what Mr Roy does is he gives evidence about what actually happened, and this is what would inevitably happen in a case like this. There was a degree of, first of all, notice given to the employees about what the employer proposed. There was then a period of consultation and conferral. And that's what we would say would happen in a case like this. The employer has the ability to introduce the roster as an exercise of managerial prerogative but it would not implement it that way. It would implement it by first of all a process of conferral and consultation, and hopefully agreement. And the process of conferral and consultation might be kicked off, as your Honours would know, by perhaps a document in the form of annexure 1, the letter which is attached to the submissions. If agreement could not be reached then what would happen is the matter would be conciliated by the Commission under, for example, clause 21.11, and if it could not be conciliated, then it would be arbitrated and an outcome would be delivered, again, under clause 21.11.

PN56

So, your Honour, my short answer then to your Honour's question is whilst your Honour is right to hold the concern, in my submission, it's a concern that is, in this case, and in most cases, I would have thought if not all cases, not one that you ought to have much real concern about. Does that answer your Honour's question? Your Honour, Acton SDP, as I was making those submissions, gave me a look which indicated that there was a question that you wanted to ask as well.

PN57

SENIOR DEPUTY PRESIDENT ACTON: No, you've read me ‑ ‑ ‑

PN58

MR POWER: I've misunderstood. I apologise for that in that case, your Honour. So I come back to the point then of the fundamental error made by the learned Commissioner. You had on the one hand the appellant arguing at first instance that the agreement was silent on how a new roster could be introduced, what it would look like, and whether the employer could do it unilaterally. And there was no prohibition against that happening in this agreement. Now, that was clearly on the basis that the agreement was silent on those matters, and it was not the subject of agreement between the parties. That's an important submission.

PN59

Opposed to that was the argument put by the respondent. And the respondent's argument was that it could not be done, and it could not be done because when you looked at the whole of the agreement, it was apparent, it said, that this agreement was predicated only on the average number of working hours per week being 42, and the length of a roster being 12.

PN60

Now, faced with those two opposing arguments, in our submission, it was imperative for the learned Commissioner at first instance to deal directly with the argument that was put by the appellant at first instance; namely, did the agreement by its terms - and we said was there any prohibition by its terms against doing what the appellant wanted to do - prevent it from doing so?

PN61

He didn't deal with that. He did not deal in a direct way with the submission and the argument that the agreement did not prohibit the introduction of what was referred to as the new roster. Because he did not deal with it, didn't give it proper consideration, what then happened, if your Honours please, he went into the agreement - nothing wrong with doing that - but limited himself solely to a consideration of the agreement in answering the first and second questions. In our submission, that's the error.

PN62

Can I take your Honours to the questions 1 and 2, because it highlights the nature of the error. You'll find those questions encapsulated in paragraph number 3 on page 1 of the appeal book. You'll see the first question is:

PN63

Do the terms of the agreement allow Griffin to unilaterally implement the roster?

PN64

The second question is:

PN65

If the answer to question 1 is no, do the terms of the agreement allow the Commission to order the new roster be implemented?

PN66

When you understand that these five questions, including the first two, were intended to be a synthesis of the three applications and the issues they raised, and you have regard to what those applications put up for consideration and then you have regard to the arguments that were run at first instance captured in the three outlines of submissions, you can immediately appreciate that when you are considering these questions - namely, do the terms of the agreement allow Griffin allow to unilaterally implement the new roster and, if the answer is no, do the terms of the agreement allow the Fair Work Commission to do so - you have to construe them in a way that permits the issues that were raised in the applications and in the outlines of submissions to be answered.

PN67

One of those issues was - if I can put it this way - do the terms of the agreement allow Griffin to unilaterally implement the new roster because it does not specifically prohibit it?

PN68

COMMISSIONER ROE: But that's not the question.

PN69

MR POWER: But that's my point, you see. That's why I say, Commissioner, the question has to be construed in the context of the applications. If I can deal with it a different way, Commissioner. I understand the point you're making and it's a point well made, but let me deal with it this way: the question could be do the terms of the agreement provide for Griffin to unilaterally implement the new roster? That's a different question to the one which says do the terms of the agreement allow Griffin to implement the new roster? I'm sure, Commissioner, you understand the difference I'm making here.

PN70

The reason why you have to construe the first two questions broadly in terms of what is allowed is because you can't ignore the historical context by which those questions came to be. When you go to the applications and then you look at the arguments that were presented at first instance, clearly what was being urged on the learned Commissioner was that he construe those questions broadly and answer them having regard to what was argued before him.

PN71

One of the things that was argued before him was whether the terms of the agreement prohibited the company from unilaterally implementing the new roster. Another of the matters that was up for consideration before him by virtue of the second application filed by the company, is the use to which clause 21 might be put. In my submission, it is indeed appropriate to look at these questions in a more considered way and to give them the breadth that they need to permit the Commission to answer the questions that were before it.

PN72

SENIOR DEPUTY PRESIDENT ACTON: Does he not answer it by his reasoning about the agreement being about 12‑hour rosters?

PN73

MR POWER: I'm absolutely delighted your Honour has made that point. In our submission, that was an approach that was not open to him. Let me explain why. When you go through this agreement, you find a plethora - and we don't want to shy away from that - of references to a 42‑hour average working week and to 12‑hour shifts. You might say, well, the mere fact that there are so many references to a 42‑hour average working week and to a 12‑hour shift must mean that this agreement only ever contemplated working weeks of that number of average hours and shifts of that duration.

PN74

In our submission, that would be a wrong interpretation of the agreement and we say it for this reason: you have to look closely at what these different clauses which refer to the 42‑hour week and which refer to the 12‑hour shifts, actually do. In other words, why are they there and is it therefore proper to use them to come to the conclusion which the learned Commissioner did.

PN75

When you look at these clauses closely, they serve one of three purposes. They are either used to calculate the hourly salary rate or they are used as a method - that is, as a formula - for calculating a particular entitlement, sometimes to ensure wage parity internally or externally in the case of contractors, for example, or they are used as a reference back to schedule A. Schedule A, as you'll recall, deals with annualised salaries.

PN76

What I've done is I've gone and looked at every single clause in this agreement that references 42 hours as an average working week or 12 hours as a duration of the shift, or where it does so even indirectly without mentioning them, to understand what the purpose of each of these clauses is. It falls into one or more of these categories. What I've done, if the Commission pleases, is I have put them into the form of a schedule and grouped them accordingly. Would it be of some assistance for me to provide you with that schedule either now or later?

PN77

SENIOR DEPUTY PRESIDENT ACTON: Now would be good.

PN78

MR POWER: Thank you. I'll just give the members of the Bench a moment to look at it. It's a pretty self‑explanatory document. To understand it fully, of course, you need to go back and read the clause.

PN79

SENIOR DEPUTY PRESIDENT ACTON: I'll mark your written submissions, Mr Power, as P1.

EXHIBIT #P1 APPELLANT'S WRITTEN SUBMISSIONS

PN80

SENIOR DEPUTY PRESIDENT ACTON: The schedule of references to 12 hours and 42 hours, as P2.

EXHIBIT #P2 APPELLANT'S SCHEDULE OF REFERENCES TO 12 AND 42 HOURS

PN81

MR POWER: Thank you, your Honour. When you understand the purpose - or, if you prefer, the function - to be served by each of these clauses that refers to these documents, you can understand that they are machinery provisions. That is, they are there for the purpose of calculating be it an entitlement or for the purpose of ensuring parity and so on. It is, in my submission, wrong to infer from the fact that there are references of this type in the clauses that therefore the only way of construing the agreement when regard is had to it as a whole, is that it is an agreement that provides only for rosters which have two characteristics. Namely, 42 average hours of work per week or shifts of 12 hours' duration.

PN82

That submission, without more, would be a controversial one, but it's not controversial in this case because of what is missing from this agreement. Your Honour, can I explain that in this way. When you look at this agreement, if it just had all those references in the clauses to 42 hours and 12 hours, that would be a pretty compelling argument, I accept, or the proposition that this agreement only contemplates an average number of 42 hours per week or 12‑hour shifts. That is not looking at the agreement properly. When you look at this agreement properly, you have to look at what's missing from it, as well.

PN83

What is central to this - and we deal with a number of other points in the written submissions, but what is central to it is that here in this agreement and as found by the learned Commissioner at first instance, it clearly contemplates - that is, permits - new rosters to be introduced, but it clearly does not say how that can be done or what characteristics they would have, or whether they could be done unilaterally by the employer. It doesn't say any of those things.

PN84

It doesn't even have a definition of "roster". It doesn't define "shifts" at clause 4.1 to mean shifts of 12 hours. If you came into this argument and you looked at those two considerations, why would you necessarily come to the conclusion that because there are a lot of clauses in this agreement that refer to 42 average hours per week or 12‑hour shifts, that that in itself is a sufficient justification for concluding that a new roster must be worked over 42 hours per week and have a 12‑hour shift? It simply does not follow and it does not follow because of what is missing from this agreement.

PN85

What is missing is how the new roster would be introduced, what it would look like, whether it could be done by the employer unilaterally.

PN86

SENIOR DEPUTY PRESIDENT ACTON: What has that got to do with the length of the shift?

PN87

MR POWER: It's not specified. That's the point.

PN88

SENIOR DEPUTY PRESIDENT ACTON: You say the things that are missing is how it would be introduced, et cetera - - -

PN89

MR POWER: Yes.

PN90

SENIOR DEPUTY PRESIDENT ACTON: None of the three issues you raised deal with the length of the shift.

PN91

MR POWER: Yes, they do. I'm sorry, I've not explained myself clearly enough. When I say what it would look like, what I mean by that is - I'm using the shorthand and I apologise for that - how many hours over the week it would be worked and what the shift length would be.

PN92

SENIOR DEPUTY PRESIDENT ACTON: It's possible, is it not, to have a new roster of 12‑hour shifts?

PN93

MR POWER: It is. The submission made by the appellant, your Honour, is it doesn't need to be.

PN94

SENIOR DEPUTY PRESIDENT ACTON: Yes, I understand that.

PN95

MR POWER: Yes. You see, it would be very clear, for example, that it could only be 12‑hour shifts if the definition of "shift" defined it in that way, but it doesn't.

PN96

SENIOR DEPUTY PRESIDENT ACTON: You don't go so far as to say a new roster must be one which does not involve 12‑hour shifts?

PN97

MR POWER: No. We don't, no. We say that the length of the shift is not dealt with by the express terms of this agreement.

PN98

SENIOR DEPUTY PRESIDENT ACTON: But the Commissioner doesn't find that, does he?

PN99

MR POWER: No.

PN100

SENIOR DEPUTY PRESIDENT ACTON: He says when you look at the agreement as a whole, it's about 12‑hour shifts.

PN101

MR POWER: Yes, that's right. The finding at paragraph 134, on page 29 of the appeal book, the essence of it is, "considering all of these clauses", and he is referring there to the clauses that I've taken the Bench to:

PN102

It is obvious that the agreement as a whole envisaged shifts will be 12 hours in length and weekly hours will average 42.

PN103

What he is, in effect, saying is that that is the only way in which a new roster could look. That is, it would have to be worked over 42 hours per week and it would have to have shifts of 12 hours' length. That is what he's saying. Our submission is that's not a right conclusion to come to when you don't have a definition of a shift being 12 hours, when you are not told in this agreement how a roster would be introduced, when you are not told - to answer your Honour Senior Deputy President Acton's question - over how many hours it would be worked and what the shift length would be, but when you do know that something other than the current roster in schedule C can be introduced.

PN104

It's a combination of those three things, what's missing and what's there, which produces the outcome, we say, that under this agreement - that is, by looking at what's agreed and what's not the subject of agreement - there is an ability for the employer to introduce the new roster which was the subject of the application before the learned Commissioner. Your Honours will appreciate obviously that when you look at the outline of submissions, we have tried to articulate the arguments that we're putting to you now in as clear as way as we can.

PN105

You will see of course, having read those submissions, that we don't just rely on the points that I am dealing with now in oral submissions. We indeed make some additional points. I know your Honour Senior Deputy President has indicated that you don't want me to repeat them, so I'm not going to repeat those written submissions, but we would ask you to have regard to the full extent of the written submissions when considering what to do with this appeal.

PN106

Can I just come back to the point that I was dealing with before I answered your Honour Senior Deputy President Acton's question. Once you appreciate that the learned Commissioner did not deal with a central element of the appellant's argument and instead, as we have submitted in oral submissions and as we have put it in the written submissions, wrongly limited himself to answering those questions 1 and 2 by only looking at the agreement and only staying within the four corners of the agreement, what happened in effect was that he gave the agreement a strange meaning that it would not otherwise have. What he has done is he has premised his finding to the answers to questions 1 and 2 on the fact that, as he saw it, the answer must lie somewhere in the terms of this agreement.

PN107

An example of that and where he went wrong is his reliance on clause 25.1. Clause 25.1 is a general variation provision. Now, because he came to the view that he must find the answer only within the four corners of the agreement and did not deal really in any useful way with the appellant's primary argument, he then gave 25.1 a strange meaning and application that it wouldn't otherwise have.

PN108

If, for example, he had found or at least dealt with the appellant's primary argument that because there was no term in the agreement which prohibited the unilateral implementation of the roster by the company, he might then have looked at the answer to questions 1 and 2 in a different way. We articulate that in our written submissions. I don't want to go into that unless you want me to - but he didn't.

PN109

The way in which he dealt with and resolved the tension between 25.1 and 21.11 demonstrates the problem he fell into, because 21.11 - as the Bench would know - is a consultation provision. It provides a mechanism for dealing with, among other things, the alteration of hours of work. That's 21.9(d), if memory serves me correctly.

PN110

Now, there is a process in clause 21 which is tailor-made for what was being dealt with by the employer in trying to introduce the new roster. It provided for consultation. It was consultation over a matter where there would be significant effects. Of course there would be. There's no question about that. It provided a mechanism in 21.1 for conciliation and, if necessary, arbitration.

PN111

He dismissed clause 21.11 and did so because it gave undue significance and weight to clause 25.1. He came to the conclusion that a variation was required because of the finding that when one looks at the whole agreement, there are this plethora of clauses referring to 42 average hours per week and 12‑hour shifts, which I say would have been a fair finding had it not been for the fact that in this agreement what was missing was any mechanism describing how a new roster would be introduced, what its components would be - - -

PN112

SENIOR DEPUTY PRESIDENT ACTON: Well, the components of what he found was 12 hours was implicit in the agreement.

PN113

MR POWER: That's the finding. Yes, I accept that, your Honour, but what we say is if you are going to look at the whole agreement - and that's the approach he adopted - then you do need to look at the whole agreement. It's not enough just to look at that and give that undue weight without having a look at clause 9.1 and 9.2.

PN114

SENIOR DEPUTY PRESIDENT ACTON: I understand you say that finding was wrong.

PN115

MR POWER: Yes.

PN116

SENIOR DEPUTY PRESIDENT ACTON: I understand you say it's wrong.

PN117

MR POWER: Yes.

PN118

SENIOR DEPUTY PRESIDENT ACTON: But in the event that we came to the conclusion that finding was open to him, there was no error in it, is that the end of the matter?

PN119

MR POWER: Well, it would then be a difficult argument for us to put, yes. Your Honour, I can see that there's not much point in me further articulating the arguments about why that finding was wrong, because your Honour and the members of the Bench obviously appreciate the thrust of what I'm saying.

PN120

SENIOR DEPUTY PRESIDENT ACTON: Yes.

PN121

MR POWER: May I move to a different point?

PN122

SENIOR DEPUTY PRESIDENT ACTON: Yes.

PN123

MR POWER: I don't want to take up the time of the Bench unnecessarily, but there are just a few other points that I need to deal with if I may. I think I've made as strongly as I can the submission as to why that finding is wrong.

PN124

SENIOR DEPUTY PRESIDENT ACTON: Yes.

PN125

MR POWER: Before I do that, your Honour of course appreciates that in the course of giving you this modified set of oral submissions - modified in the sense that they're different from the written submissions - I am dealing with the various grounds of the appeal at once, as it were. That leaves it to me to deal with this point - and none of your Honours have asked me the question yet, but I anticipate that one of you will shortly do that. That is, if the construction that the appellant contends for is correct, would that produce, if I can put it this way, an uncomfortable or unworkable outcome?

PN126

What I mean by that is what would happen if, for example, you had some of the production workforce working the roster as set out in schedule C and some of them working a different roster? Let me paint that picture for you. If it is the case that the employer could introduce a new roster which did not require employees to work 42 average hours per week or on 12‑hour shifts, but something different, and if it is the case that that was the subject of consultation, conferral and agreement and, to the extent that agreement could not be reached, then an arbitrated decision, would that result in a situation where you would have one group of employees - that is the group on the new roster - working on terms and conditions too vastly different from those working on roster C?

PN127

COMMISSIONER ROE: It doesn't matter if the agreement allows it.

PN128

DEPUTY PRESIDENT GOOLEY: Yes.

PN129

MR POWER: I accept that.

PN130

COMMISSIONER ROE: Look at clause 14.4. How would clause 14.4 of the agreement operate in such a circumstance?

PN131

MR POWER: That's what I'm going to address, Commissioner. In my submission, it produces an outcome that is not inherently unfair. I say that for this reason: because if it is the case - and on the evidence it would appear to be the case - that there was a level of consultation and conferral and ultimately agreement or arbitrated outcome, you would have a situation where - let me tell you what you wouldn't have first. What you wouldn't have is you wouldn't have a situation where all the employees on roster C would have most of their terms and conditions governed by the agreement and all the employees on the new roster would not.

PN132

That would not be the case because, as Commissioner Roe just made the point, what you have is you have an agreement that continues to apply. When you look through the terms of that agreement, you can see that some of them would continue to apply to employees on the new roster simply by force of the fact of what they say.

PN133

DEPUTY PRESIDENT GOOLEY: I have some difficulty working out - given the proposal was that people would work a seven‑hour day with no rostered overtime and no rostered work on Saturday and Sunday - what somebody who was on such a roster would get paid if they worked overtime or if they worked on a Saturday or Sunday. It's not a situation where you can say, well, personal leave, it would revert to the NES if the agreement deals with a 12‑hour shift and annual leave is dealt with in the NES.

PN134

The overtime clause in this thing simply says you can volunteer to work overtime outside your normal rostered hours. How do you get paid for it? Salary rate times 1.6 is specified in schedule A. Public holiday; double the employee's salary rate. Presumably that would be double their rate.

PN135

MR POWER: Yes.

PN136

DEPUTY PRESIDENT GOOLEY: The rest of overtime, it's 1.6 specified in accordance with schedule A. What would I get paid?

PN137

MR POWER: I well understand the question there.

PN138

DEPUTY PRESIDENT GOOLEY: You don't revert to the award, because the award doesn't apply.

PN139

MR POWER: I well understand the question and the reason for it. It's a question that has crossed my mind, as well, of course, and there is an answer to it.

PN140

DEPUTY PRESIDENT GOOLEY: So hopefully there is an answer.

PN141

MR POWER: There is an answer. There is. Your Honour has taken me to a particular clause in the agreement because it's one that gives rise to this problem. Let me start answering the question in this way: there are other clauses in this agreement - and they have been identified in the first set of submissions below - which would simply continue to apply. There are some that would be much more difficult to apply and there are some which it would be possible to apply, so we accept that.

PN142

That's why I took your Honour earlier to the process which would occur as a matter of course here and which has already started to occur. That is, the process of referral, consultation, agreement and arbitration. These sorts of things that your Honour is talking about now would almost unquestionably be the subject of consultation. They might produce an agreement. They might not.

PN143

If they are not, they could well be the subject of arbitration and in the course of the arbitration what sorts of considerations would arise, I ask rhetorically.

PN144

DEPUTY PRESIDENT GOOLEY: More to the point, say there had been an agreement with the employees, how would it be enforceable?

PN145

MR POWER: I can answer that question. It would be enforceable on the basis that it's a common law contract.

PN146

COMMISSIONER ROE: How could the Commission make a decision that is inconsistent with the term of the agreement? Your own argument. In settling such a matter under clause 21, by necessity you're saying the Commission would be making decisions that are inconsistent with the agreement because it would be deciding that certain terms of the agreement actually don't apply or would be changed.

PN147

MR POWER: In my submission, Commissioner, there is a straightforward answer to that question. It would not be making a decision inconsistent with the agreement because it would be dealing with a matter that falls outside the agreement. In other words, as a consequence of the roster not being regulated by the agreement, it then deals with "is outside the agreement". Does that answer the Commissioner's question?

PN148

COMMISSIONER ROE: It answers the question.

PN149

DEPUTY PRESIDENT GOOLEY: Could such an agreement be approved by the Commission that permitted such a thing?

PN150

MR POWER: It would not need to be.

PN151

DEPUTY PRESIDENT GOOLEY: No, what I mean is if you - I'm thinking of the decision of the Federal Court in, I think it was, Commsec v Finance Sector Union, where there was a mechanism whereby the employees could agree to something that was - in fact to opt out of provisions of the agreement. The court held that such an agreement could not be approved by the Commission.

PN152

MR POWER: No, we don't make the submission - I will answer your Honour's question - it should be regulated in that way, because it would not be appropriate because of all the consequential problems that would then flow from that. Your Honour obviously understands what I'm talking about. We don't make that submission, but that doesn't mean it's any less enforceable. It just means it's enforceable in different way, in a different jurisdiction. Does that answer your Honour's question?

PN153

DEPUTY PRESIDENT GOOLEY: Well, it doesn't answer the question about whether an agreement that permitted such a thing is an agreement that is contemplated by the Fair Work Act.

PN154

MR POWER: There is an easy answer to that question. This type of agreement, it would not be something that - using the expression fairly - is contemplated by the Fair Work Act. There is a second part to the answer which is not part of the question. That is that it nonetheless would be an enforceable agreement.

PN155

There seems to be in the submissions made against us at first instance and in the findings of the Commissioner, implicitly but not expressly stated a concern that if the employment of persons working on such a new roster were not regulated by an enterprise agreement registered under the Act, there would be some unfairness worked against them or some unfairness capable of being worked against them. That's not a submission that really follows.

PN156

Just because the regulation of the terms and conditions of employment of employees does not come within the statutory scheme, it does not follow that there is something wrong with that; that there's something necessarily or inherently unfair about it.

PN157

COMMISSIONER ROE: It is one of the objects of the Fair Work Act, isn't it?

PN158

MR POWER: I beg your pardon, sir?

PN159

COMMISSIONER ROE: Isn't one of the specific objects the Fair Work Act about individual statutory agreements?

PN160

MR POWER: I accept that, but I'm putting to the Full Bench a slightly different proposition. My proposition is not concerned with what the Fair Work Act requires. We're saying in our submission that to have an agreement between an employer and employees - that is, individual employees - outside of the Fair Work Act, doesn't inherently carry with it the proposition that it is wrong or unfair. It just means it's not part of the scheme.

PN161

You see, the difficulty here, Commissioner, is not a difficulty that is of the employer's own making. The difficulty here is that you have an agreement which has what can only be described as a number of big gaps in it. This is one of them. This is not a case of the employer trying to take advantage of that gap for its own profit. What is happening here is the employer has been put in the situation where it needs to come up with a solution for survival. That's the reason it has gone down this path. It's in everyone's interest that it survive.

PN162

May I then deal with - if it's convenient for me to do so, because it's a quite discrete matter. May I then go to the issue of ground 7. Because it's a discrete matter, I might just invite any member of the Bench to ask me any questions they have at this stage. If not, then I will proceed to that because it's a discrete, simple matter.

PN163

SENIOR DEPUTY PRESIDENT ACTON: No, proceed.

PN164

MR POWER: You can see that ground 7 is concerned with the failure of the learned Commissioner to deal with questions 3, 4 and 5. You can see from the footnote to the last paragraph that there is reference to an authority. The members of the Bench are probably familiar with the decision in Kuru. I don't want to spend too long on it. We have referenced the relevant paragraphs.

PN165

The principle we rely on is simply this: where a court at first instance is given a number of tasks - in this case to answer five questions - it should do so. He didn't. He only answered the first two. He could have and should have answered the last three. Kuru is a case dealing with that point, but on appeal from an intermediate appellate court. The same principle applies as between an appellate court and a court at first instance.

PN166

We say the error there was that he should have dealt with those matters for obvious policy reasons, if nothing else. Does the Bench require me to expand any further on that?

PN167

SENIOR DEPUTY PRESIDENT ACTON: No.

PN168

MR POWER: There are some further documents that I want to provide to the Bench. You'll see in the written submissions filed by the respondent that there are two complaints. The first is that the grounds of appeal and the submissions don't identify the errors with sufficient precision. What we have done is we have prepared a schedule of errors which are identified in the notice of appeal and in the appellant's submissions. We indicate what the errors are and that they are appealable errors, and of what kind. We can provide that to you so that you can see there is nothing in that complaint.

PN169

The second schedule is dealing with the complaint that the appellant does not identify sufficient or any grounds of public interest with sufficient clarity. We have taken a similar approach to that. We have identified, by reference to the paragraphs in the submissions, where those public interest grounds lie. The reason why we haven't spelled them out, frankly, in the written submissions, is because we would have thought it obvious from the reading of those submissions what those grounds would be.

PN170

Both of the schedules are self‑explanatory. We hope they are of some assistance to the Full Bench if it needs assistance in either of those respects.

PN171

SENIOR DEPUTY PRESIDENT ACTON: I'll mark the document about schedule of relevant submissions regarding public interest, as P3.

EXHIBIT #P3 SCHEDULE OF RELEVANT SUBMISSIONS REGARDING PUBLIC INTEREST

PN172

SENIOR DEPUTY PRESIDENT ACTON: The document about schedule of errors, P4.

EXHIBIT #P4 SCHEDULE OF ERRORS

PN173

MR POWER: If the Bench pleases, there are just two additional points. If I haven't made them clear, then I would do so now in this way. The first is that when referring to the clauses in the agreement which reference the 42‑hour average working week or the 12‑hour shift length, what you will see in many of those cases - it's a point that we make in the schedule - is that they are used as a reference point or a reference mechanism for the calculation of some entitlement on the basis of the current roster for the average number of hours per week required to be worked in the current roster. In other words, they are used as a reference point for a calculation. That, I think, will become evident when you read the schedule against the clauses.

PN174

The point which flows from that is that if you read them in that way, then of course that detracts from the finding by the learned Commissioner that these clauses provide an indication that they are the only characteristics which can apply to a new roster. In other words, a 42‑hour average week or a 12‑hour shift. The other point that I'm reminded to make - and we make it in any event in the written submissions, which is the reason why I have not dealt with it in oral submissions. I've assumed that if it's made in writing, it doesn't need to be repeated orally.

PN175

DEPUTY PRESIDENT GOOLEY: That's the correct assumption.

PN176

MR POWER: But I'll do so, otherwise I might cop it later. The point is this: where there is disagreement between the employer and an employee, for example, about one of those matters which Deputy President Gooley was raising with me, then there is of course a grievance procedure. Now, when you look at the grievance procedure in clause 20, it's pretty obvious that the term "grievance" is undefined, so it is a very broad compass. It doesn't have to be a grievance in relation to any particular aspect of the agreement. It can be a grievance of any kind. That procedure could be used to deal with a grievance about one of those matters that Deputy President Gooley raised with me, for example.

PN177

In concluding, if the Bench pleases, we started with the proposition that there was an error at the very outset made by the learned Commissioner. That error was not dealing with the primary argument put by the appellant at first instance. The point made by Senior Deputy President Acton about the finding at paragraph 134, if you find that it was open to the learned Commissioner to make that finding, it does make it difficult to overcome, but I didn't concede the point wholly for this reason: if it is the case that it was open to him to make that finding, then there is an immediate tension. The tension is caused by the fact that the primary argument required him to deal with it. He doesn't deal with it at all.

PN178

SENIOR DEPUTY PRESIDENT ACTON: Deal with what?

PN179

MR POWER: He doesn't deal with the primary argument, the primary argument being that because there is no express term prohibiting the employer from unilaterally introducing and implementing a roster, it can do so. The mere fact that he looks at the whole of the agreement and comes to the finding in 134, does not deal with that argument.

PN180

SENIOR DEPUTY PRESIDENT ACTON: But doesn't it implicitly deal with it?

PN181

MR POWER: You see, it would have that characteristic, your Honour, if this was an agreement where that was all he was required to do; if he could just look at that and rely wholly on that. The point I make - and I can see it troubles your Honour, but let me deal with it if I may - is that not only is this an agreement where there is no express term which provides how a roster would be introduced, what it would look like and whether it could be done unilaterally by the employer, but there is also a very clear indication in this agreement that it can be done. In other words, a new roster can be introduced.

PN182

He has to articulate it in a more reasoned way than he did and he doesn't. That's the complaint. That's why I say it's difficult, but not a foregone conclusion. I hope that answers your Honour's concern.

PN183

SENIOR DEPUTY PRESIDENT ACTON: Those are your submissions?

PN184

MR POWER: Those are my submissions, if it pleases the Bench.

PN185

SENIOR DEPUTY PRESIDENT ACTON: Thank you, Mr Power. Mr Nolan?

PN186

MR NOLAN: Yes. May it please the Commission, I'll try to confine my comments simply to highlight some of the matters if our written submissions and take it that your Honours and Commissioner have read the written submissions.

PN187

SENIOR DEPUTY PRESIDENT ACTON: Yes. I'll mark your witness submissions, Mr Nolan, as N1.

PN188

MR NOLAN: Thank you.

EXHIBIT #N1 RESPONDENT'S WRITTEN SUBMISSIONS

PN189

MR NOLAN: We can perhaps start really where we conclude our written submissions, where we invited the Bench to consider how one would square the approach taken by Griffin with what it says now should be open to it under the agreement as it would endeavour to construe it with the obligations that fell upon it at the approval stage of the agreement, which of course required the employer to demonstrate that the agreement satisfied the better off overall tests.

PN190

There is some of the material from that original application in the appeal materials which I won't take you to, but a pertinent question to ask of course is what in heaven's name the response the member of the Commission being asked to approve the agreement would have been had he or she been told, "This is what the agreement looks like," but in fact what it really permits all these other things.

PN191

One really only has to consider that for a moment to realise how utterly untenable what was put up by Griffin in its proposal for the proposed new roster, as it has called it, is. Indeed, as we say in our written submissions, the Commissioner dealt with the issues fairly, sensibly and in accordance with the legal principle.

PN192

Now, I must say I've heard many curious and creative arguments being made over the years about the way industrial instruments should be construed and indeed I may be guilty of having used some myself, but I've yet to hear what we've heard today and that is that it should have been construed by reference to something that wasn't there. That's plainly untenable. What the Commissioner did was to apply the orthodox rules of construction to the agreement and came to the very sensible conclusion that he did, that indeed the agreement, having regard to it in its entirety and the relevant terms and provisions, simply did not permit and did not allow this radical re‑writing that was sought by the Commission.

PN193

Indeed as he points out - and we refer to this at the beginning of our submissions - the effect of the proposed roster was that employees who would be put onto the new roster would receive an annual salary of approximately 38 per cent less than the annualised salary currently prescribed in the agreement. That really starkly sets out the dimensions of the difficulty and the dramatic difference in what was proposed when one compares it with what the agreement terms provide.

PN194

The dramatic effect of that is really set out - and we reproduce this short paragraph. Paragraph 4 of our submissions is paragraph 48 of the Commissioner's decision we reproduced and it goes through all those clauses that we've had some discussion of this morning; the clauses that would, in effect, be read out of existence if the new roster was implemented. If they're weren't read out of existence, as has been suggested, they would nevertheless have to be somehow or other come to grips with by reference to the disputes settlement clause or some other mechanism, or indeed - and it was perhaps put as an alternative - one would just fall back onto the common law arrangements.

PN195

I think the expression is it just gets curiouser and curiouser when one considers the implications of that kind of submission. Plainly untenable, in our submission, and the Commissioner's approach was the correct one. As we say, reproducing various key parts of his decision, the approach was utterly orthodox and utterly sensible in the circumstances. He said at paragraph 135:

PN196

The agreement considered as a whole provides only for shifts of 12 hours at an average of 42 hours a week.

PN197

Now, there may be within the confines of that some small room for variations in the rosters, but the kind of roster sought by the company in this proceeding was simply well outside of what is permissible under the agreement and what is contemplated by the agreement. We won't read those provisions out, but the Commissioner makes pertinent findings in that respect and, as I've already indicated, does so in accordance with the propriety and legal principle.

PN198

The various authorities that have been referred to are the appropriate ones in that connection. The sentiments in Golden Cockerel, for example, with respect to the task of interpreting an agreement. Pertinently, of course, the Bench said in that case that the task of interpreting an agreement does not involve re‑writing the agreement to achieve what might be regarded as a fair or just outcome or, in this case, what might be sought by the employer as a desired outcome.

PN199

The fact of the matter is the agreement is the subject of agreement, as the name suggests, between the parties and it's just untenable to go off on some tangent that effectively undercuts and empties of the content most of the provisions in the agreement in this strained and forced reading the company would now seek to have effected by the Commission. Nothing in the Commissioner's approach fell into error or did anything, as we've already indicated, even vaguely inconsistent with legal principle.

PN200

Indeed, his findings with respect to clause 9 of the agreement that we've been discussing this morning, we would submit are not just findings that were open to him, but findings that were really the only sensible findings that could be made given the task that he had. Putting it that way, of course, we emphasise the very great difficulty the appellant has got to challenge what was found by the Commissioner.

PN201

As I say, we've dealt with all those issues in the written submissions. We would commend the Commissioner's decision. We would say that what has been put in the written submissions of the appellant and again this morning, really don't make the position any better for the appellant. Indeed, all that has been put this morning has succeeded in doing in, in our submission, is to really reinforce the wisdom of what the Commissioner has done in his decision and indeed no better example of that, or illustration of that, is in exhibit P2 which sets out all those clauses.

PN202

Now, it beggars belief to think that a schedule of two pages of closely typed clauses of the agreement could be sensibly regarded as being provisions that could be effectively read out of the agreement in respect to the variation that is now being sought. It just doesn't make sense. Because of all of that, we've made the submissions that we've made with respect to permission to appeal and we've said there that there's really no issue of principle, no issue of any kind that raises an important or serious issue or identifies an error that would persuade a full Bench to even give permission to appeal.

PN203

We think this is one of those cases where there has been an utter failure to demonstrate any public interest generally or in respect of any particular egregious error that has been identified in the Commissioner's decision. In that connection, we would submit it's not just a matter of dismissing the appeal, but it's an appropriate case for the Full Bench to refuse permission to appeal in the circumstances.

PN204

We commend to you what we have put in our written submissions. I don't really think I need to go any further than to say what I've said this morning and commend you to those written submissions, may it please the Bench.

PN205

SENIOR DEPUTY PRESIDENT ACTON: Thank you, Mr Nolan. Anything else, Mr Power?

PN206

MR NOLAN: Sorry, I've got some copies of the decisions that we have included in the submissions and I'll hand up those.

PN207

MR POWER: Your Honour, only very briefly two things if I may. One is to make some very brief submissions - just two - about the form F17. F17 is to be found in the appeal book at page 544. If I can ask the Bench to go to page 549 to make the two submissions that I need to make about this. Some reliance is placed on this and I can understand why, but there are two things to be said about this document.

PN208

The first is that the declaration of course is made and therefore relied on at a particular point in time. The second thing to be said about it and which limits its use in this proceeding, is of course when you look at 3.5 and 3.6, it applies the test in respect of a particular reference instrument. This is at page 549. The particular reference instrument against which the test is applied is that at the top of the page, being the Black Coal Mining Industry Award, so it has a limited use in this proceeding.

PN209

The only other matter I want to deal with, if I might, we've referred to a number of authorities below and on appeal. We have hard copies available for the Bench. I hope that is of some assistance.

PN210

SENIOR DEPUTY PRESIDENT ACTON: Thank you.

PN211

MR POWER: If it please the Bench.

PN212

SENIOR DEPUTY PRESIDENT ACTON: Thank you. We will reserve our decision. We will now adjourn.

ADJOURNED INDEFINITELY [10.40 AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #P1 APPELLANT'S WRITTEN SUBMISSIONS............................ PN79

EXHIBIT #P2 APPELLANT'S SCHEDULE OF REFERENCES TO 12 AND 42 HOURS PN80

EXHIBIT #P3 SCHEDULE OF RELEVANT SUBMISSIONS REGARDING PUBLIC INTEREST............................................................................................................. PN171

EXHIBIT #P4 SCHEDULE OF ERRORS......................................................... PN172

EXHIBIT #N1 RESPONDENT'S WRITTEN SUBMISSIONS....................... PN188