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Fair Work Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052590
VICE PRESIDENT WATSON
DEPUTY PRESIDENT KOVACIC
COMMISSIONER ROE
C2015/4999
s.604 - Appeal of decisions
Hart
and
Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited
(C2015/4999)
Melbourne
10.05 AM, TUESDAY, 13 OCTOBER 2015
PN1
VICE PRESIDENT WATSON: Can we have the appearances, please?
PN2
MS S KELLY: Good morning. My name is Kelly, initial S, of counsel and I appear with Mr Josh Cullinan, pursuant to the leave granted under section 596 of the Act in matter 2015/4999.
PN3
VICE PRESIDENT WATSON: Ms Kelly.
PN4
MR A MULLER: And my name is Muller and I appear for the Australian Meat Industries Employees Union in matter 6084 of 2015 pursuant to leave granted under the same section.
PN5
VICE PRESIDENT WATSON: Mr Muller.
PN6
MR W FRIEND: If the Commission pleases, I think I might need to seek permission to appear in both matters, I'm not sure, for the SDA.
PN7
VICE PRESIDENT WATSON: Yes, Mr Friend. Permission has been granted to other parties, I believe, in the matter, but permission is granted in your case as well.
PN8
MR FRIEND: Thank you, your Honour.
PN9
MR S WOOD: If it please the Commission. I appear with my learned friend Mr Felman for Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Ltd, pursuant to permission granted already in matter C2015/4999 and I think we've sought permission, but not yet been granted it, in relation to C2015/6084, which is the AMIEU matter.
PN10
VICE PRESIDENT WATSON: Yes, thank you, Mr Wood. Ms Kelly?
PN11
MS KELLY: We propose, subject to the Full Bench's view, to proceed in the following way: no party will make an opening statement. We'll proceed to call the evidence of all of the parties and then the order of address would be as follows: Coles would lead with its submissions on its strike‑out application and thereafter responses. There would follow Mr Hart's submissions on permission to appeal, followed by responses, and we'd then turn to deal with the application for an extension of time by the AMIEU, if that's a convenient approach for the Full Bench.
PN12
VICE PRESIDENT WATSON: So people aren't required for cross‑examination, are they?
PN13
MS KELLY: Indeed they are.
PN14
VICE PRESIDENT WATSON: That procedure is agreed with the parties at the bar table?
PN15
MS KELLY: I have suggested it to my learned friends on the other side and haven't had either a positive or a negative indication from them about whether that's acceptable.
PN16
VICE PRESIDENT WATSON: Does anyone wish to express a view about that proposal?
PN17
MR FRIEND: This is an application in regard to Mr Hart for permission to appeal and, in my submission, you wouldn't ordinarily have cross‑examination on evidence in relation to that. It's a most unusual circumstance. First of all, we're dealing with an appeal; you wouldn't ordinary have evidence on an appeal. There's a whole lot of hoops to go through and now we're talking about having a mini hearing with cross‑examination. In my submission, there shouldn't be any.
PN18
MR WOOD: We're happy to proceed in the way my learned friend Mr Friend has indicated, if it pleases the tribunal. We don't see the need for cross‑examination of any of the witnesses, but of course if my learned friends want to cross‑examine our witnesses then we have prepared, if that leave were given, a few questions for Mr Hart and Mr Cullinan.
PN19
VICE PRESIDENT WATSON: Ms Kelly, there is some overlap in a lot of the issues ‑ ‑ ‑
PN20
MS KELLY: Yes.
PN21
VICE PRESIDENT WATSON: They're all interrelated, aren't they?
PN22
MS KELLY: Indeed they are.
PN23
VICE PRESIDENT WATSON: It's difficult for us to determine some of them without hearing the others as well and certainly we were inclined to hear all of the arguments on all matters before indicating any decisions, but it's simply a matter of procedure for the parties to present their cases and obviously evidence should precede submissions.
PN24
MS KELLY: Indeed it should.
PN25
VICE PRESIDENT WATSON: But the matter is fundamentally your application, your client's application, for permission to appear. Does it matter if you proceed first with your evidence, especially as there may be limited cross‑examination?
PN26
MS KELLY: Not in the slightest, Vice President. I mentioned it only because the representatives from Coles had indicated that they required both of my witnesses for cross‑examination and sought to proceed first on the strike‑out. So I'm certainly content to proceed with our permission to appeal application without any difficulty.
PN27
VICE PRESIDENT WATSON: Yes, I think we should proceed on that basis.
PN28
MR WOOD: We're content to do that, subject of course to the Commission's ruling on whether any cross‑examination should be allowed. Obviously, if cross‑examination of our witnesses was not allowed then we wouldn't press to cross‑examine the applicant's witnesses, but if the applicant's witnesses are going first then that issue doesn't arise in a way that we could make a concession.
PN29
VICE PRESIDENT WATSON: You seek a ruling that cross‑examination be allowed and you intend to cross‑examine if that leave is ‑ ‑ ‑
PN30
MR WOOD: We don't contend either way. We don't seek a ruling; merely we don't wish to be in the situation that the applicant's witnesses go in without cross‑examination and then cross‑examination is allowed of our witnesses when we haven't had that opportunity. If my learned friend says she doesn't wish to cross‑examine our witnesses or the tribunal rules that it won't allow cross‑examination of our witnesses, then we won't press to cross‑examine the applicant's witnesses.
PN31
VICE PRESIDENT WATSON: Yes. Ms Kelly, the matter today is set down not to hear the appeal as such, but to hear the application for permission to appeal and the application to dismiss the appeal.
PN32
MS KELLY: Yes.
PN33
VICE PRESIDENT WATSON: They being preliminary matters. Is it necessary, given what the parties have said in their material, to cross‑examine witnesses at this early stage?
PN34
MS KELLY: We have to this point taken the view that it is necessary and I say that in a guarded tone because it's possible that we don't need to go down that path. We're taking that view for two reasons: (1) we've had indication from my learned friends that they required both of our witnesses for cross‑examination, which put the issue in play as it were; (2) your Honour will have noted that a substantial part of our case concerns the strength of the arguable case that we say the appellant has and that is a matter that lends itself to cross‑examination, but if I can take some very short instructions Mr Hart ‑ ‑ ‑
PN35
VICE PRESIDENT WATSON: There's also some concessions made by Coles ‑ ‑ ‑
PN36
MS KELLY: Indeed there is.
PN37
VICE PRESIDENT WATSON: ‑ ‑ ‑ for the purposes of their arguments.
PN38
MS KELLY: And some rather strong submissions to the contrary put by the SDA. I think we can proceed without it on the understanding, as I have it, that the evidence contained in the witness statements will be admitted, but not subject to cross‑examination.
PN39
VICE PRESIDENT WATSON: And be treated accordingly ‑ ‑ ‑
PN40
MS KELLY: Indeed.
PN41
VICE PRESIDENT WATSON: ‑ ‑ ‑ bearing in mind that this is a preliminary stage and this is not the hearing of the appeal, as such.
PN42
MS KELLY: No. I think we all looked at the proposition your Honour puts. It arose only, as I indicated, because a substantial part of the appellant's case rests on the strength of the arguable case that we seek to make out and so my learned friends for Coles make the concession that there is an arguable case, in terms of your Honours weighing the discretionary factors as to whether or not leave should be granted, the strength of that arguable case is a relevant factor. If I might step away from the bar table for just one moment to speak with my client?
PN43
VICE PRESIDENT WATSON: Yes.
PN44
MS KELLY: I would appreciate that.
PN45
VICE PRESIDENT WATSON: Certainly.
PN46
MS KELLY: Thanks. Thank you for that time, your Honour. We're content to proceed without any cross‑examination.
PN47
VICE PRESIDENT WATSON: Yes, very well. We're content to allow the evidentiary material to be accepted for the purposes of the proceedings today and considered by the parties and their submissions on the basis that this matter is of a preliminary nature and is not fully tested as a full case might be.
PN48
MS KELLY: Thank you, your Honour.
PN49
VICE PRESIDENT WATSON: Yes.
PN50
MS KELLY: Does your Honour require the witnesses to swear to their statements in the box or are you content to adopt them in their form? I believe they are all signed.
PN51
VICE PRESIDENT WATSON: Yes. We don't.
PN52
MS KELLY: In fact, I'm informed that our statements aren't signed, so it might be necessary that my witnesses do in fact adopt their statements in the box.
PN53
VICE PRESIDENT WATSON: If there's no objection to the evidence being admitted then we wouldn't require the witnesses to swear to those statements, given that they have been filed.
PN54
MS KELLY: Thank you.
PN55
VICE PRESIDENT WATSON: I think it's a common approach for all parties. Is the first statement the statement of Mr Hart of 7 September?
PN56
MS KELLY: That's so, Vice President. The second statement is a further statement of Mr Hart of 25 September, which has annexures DH1 and DH2 attached.
VICE PRESIDENT WATSON: I'll mark the statement of 7 September exhibit K1. We'll mark the further statement of Mr Hart dated 25 September exhibit K2.
EXHIBIT #K1 WITNESS STATEMENT OF MR D. HART DATED 07/09/2015
EXHIBIT #K2 WITNESS STATEMENT OF MR D. HART DATED 25/09/2015
PN58
MS KELLY: Thank you. There is a second further statement of Mr Hart dated 6 October 2015.
VICE PRESIDENT WATSON: That will be exhibit K3.
EXHIBIT #K3 SECOND FURTHER WITNESS STATEMENT OF MR D. HART DATED 06/10/2015
PN60
MS KELLY: There is a statement of Mr Joshua Cullinan dated 25 September 2015 which has annexures JJC1 through JC6 annexed.
VICE PRESIDENT WATSON: That will be exhibit K4.
EXHIBIT #K4 WITNESS STATEMENT OF JOSHUA CULLINAN AND ANNEXURES JJC1 THROUGH TO JJC2 DATED 25/09/2015
PN62
MS KELLY: There is a further statement of Joshua Cullinan dated 6 October 2015 annexing JJC7 through JJC11.
VICE PRESIDENT WATSON: Exhibit K5.
EXHIBIT #K5 FURTHER WITNESS STATEMENT OF JOSHUA CULLINAN ANNEXING JJC7 THROUGH TO JJC1 DATED 06/10/2015
PN64
MS KELLY: That's the evidence for the appellant in 4999.
PN65
MR WOOD: I think exhibit K3, the document marked as exhibit K3, is actually a statement dated 5 October. My learned friend said it's dated 6 October. At least our version is 5 October. That is the third statement of Mr Hart.
PN66
VICE PRESIDENT WATSON: 5 October? Yes. Exhibit K3 is dated 5 October. I turn to your submissions.
PN67
MS KELLY: Yes.
PN68
VICE PRESIDENT WATSON: We might mark those as well while we're at it.
PN69
MS KELLY: Yes, certainly.
VICE PRESIDENT WATSON: So you have your submissions on permission to appeal which I will mark exhibit K6.
EXHIBIT #K6 APPELLANT'S OUTLINE OF SUBMISSIONS
PN71
VICE PRESIDENT WATSON: And I believe there was a further submission.
PN72
MS KELLY: Indeed; dated, I hesitate to say, 6 October - I'm informed it is 6 October on the question of whether or not the proceeding constitutes an abuse of process.
VICE PRESIDENT WATSON: Exhibit K7.
EXHIBIT #K7 APPELLANT'S OUTLINE OF SUBMISSIONS RE ABUSE OF PROCESS DATED 06/10/2015
PN74
MS KELLY: And that is all of the material for the appellant in 4999.
PN75
VICE PRESIDENT WATSON: Yes. Perhaps we'll receive the materials of the other parties before calling on you to make further submissions, Ms Kelly.
PN76
MS KELLY: Thank you, Vice President.
PN77
VICE PRESIDENT WATSON: Mr Wood?
PN78
MR WOOD: Might not Mr Felman introduce our evidence, if it pleases the tribunal, just because there's a claim for confidentiality in relation to some of Ms Gordana Lembovski's statement and I'll perhaps let Mr Felman will address on that.
PN79
VICE PRESIDENT WATSON: Yes, Mr Felman?
PN80
MR FELMAN: Your Honour, the respondents rely on the witness statement of Christopher Paul Gardner, dated 25 September 2015.
VICE PRESIDENT WATSON: Exhibit F1.
EXHIBIT #F1 WITNESS STATEMENT OF CHRISTOPHER PAUL GARDNER DATED 25/09/2015
PN82
MR FELMAN: The second witness statement of Christopher Paul Gardner dated 6 October 2015.
VICE PRESIDENT WATSON: Exhibit F2.
EXHIBIT #F2 SECOND WITNESS STATEMENT OF CHRISTOPHER PAUL GARDNER DATED 06/10/2015
PN84
MR FELMAN: The witness statement of Gordana Lembovski dated 6 October 2015.
VICE PRESIDENT WATSON: Exhibit F3.
EXHIBIT #F3 WITNESS STATEMENT OF JORDANA LEMBOVSKI DATED 06/10/2015
PN86
MR FELMAN: Subject to some orders as to confidentiality that we seek, I might come back to that when I just finalise the documents.
PN87
VICE PRESIDENT WATSON: Yes.
PN88
MR FELMAN: An outline of submissions in relation to section 587 of the Fair Work Act, an abuse of process, dated 25 September 2015.
VICE PRESIDENT WATSON: Exhibit F4.
EXHIBIT #F4 OUTLINE OF RESPONDENTS' SUBMISSIONS RE SECTION 587 OF THE FAIR WORK ACT RE ABUSE OF PROCESS DATED 25/09/2015
PN90
MR FELMAN: And an outline of submissions in relation to permission to appeal dated 6 October 2015 and that is in relation to what we call the Hart appeal and an outline of submissions in relation to the AMIEU's application for an extension of time dated 9 October 2015.
VICE PRESIDENT WATSON: The outline regarding permission to appeal will be exhibit F5 and the outline in relation to the extension of time will be exhibit F6.
EXHIBIT #F5 OUTLINE OF RESPONDENTS' SUBMISSIONS, PERMISSION TO APPEAL RE HART APPEAL DATED 06/10/2015
EXHIBIT #F6 OUTLINE OF RESPONDENTS' SUBMISSIONS RE EXTENSION OF TIME DATED 09/10/2015
PN92
MR FELMAN: Thank you, your Honour. In relation to the witness statement of Gordana Lembovski, we have a very short submission to hand up, a written submission, which sets out the paragraphs in which we seek those orders and a proposed minute of order.
PN93
VICE PRESIDENT WATSON: Do you apprehend that a confidentiality order would be opposed?
PN94
MR FELMAN: I don't think so. I've briefly mentioned it to Ms Kelly ‑ ‑ ‑
PN95
MS KELLY: It's not opposed.
PN96
MR FELMAN: ‑ ‑ ‑ and she said that she'd have very little to say about it.
PN97
VICE PRESIDENT WATSON: Yes.
PN98
MR FELMAN: I haven't had a chance to mention it to Mr Friend, but I've passed him ‑ ‑ ‑
PN99
MR FRIEND: No, I don't oppose it.
PN100
MR FELMAN: I didn't know that Mr Muller was in the case, so I haven't had a chance to mention it to him either. We rely on these submissions, your Honour. They set out the paragraphs and expressly what they contain and why the confidentiality is sought and on the last page is a minute of the proposed order. Unless your Honour has any questions, I don't propose to go much further.
PN101
VICE PRESIDENT WATSON: Yes, thank you, Mr Felman. I think you've indicated, Ms Kelly, that there's no opposition to an order in those terms.
PN102
MS KELLY: There's not, Vice President.
PN103
VICE PRESIDENT WATSON: Does any other party have any opposition?
PN104
MR MULLER: No, there's not.
PN105
VICE PRESIDENT WATSON: Yes. We propose to issue a confidentiality order as sought by Coles in this matter in relation to the paragraphs identified in the proposed minute of order. We will issue that order.
PN106
MR MULLER: Vice President, is it convenient to deal with the evidence and the submissions in the AMIEU matter as well?
PN107
VICE PRESIDENT WATSON: Yes.
PN108
MR MULLER: There is a statement of Graham Smith, which is dated 7 October 2015, and there's five attachments GS1 through to GS5.
VICE PRESIDENT WATSON: That will be exhibit M1.
EXHIBIT #M1 WITNESS STATEMENT OF GRAHAM SMITH, ATTACHMENTS GS1 THROUGH TO GS5, DATED 07/10/2015
PN110
MR MULLER: And then there are the submissions on the application for extension of time which are also dated 7 October 2015.
VICE PRESIDENT WATSON: Exhibit M2.
EXHIBIT #M2 AMIEU SUBMISSIONS RE APPLICATION FOR EXTENSION OF TIME DATED 07/10/2015
PN112
MR MULLER: If the Commission pleases.
PN113
VICE PRESIDENT WATSON: All right. Mr Friend?
PN114
MR FRIEND: The submissions in the proposed Hart appeal on permission, your Honour, for the SDA.
VICE PRESIDENT WATSON: We'll mark that exhibit S1.
EXHIBIT #S1 SDA SUBMISSIONS RE PROPOSED HART APPEAL ON PERMISSION
PN116
MR FRIEND: And then submissions on the extension of time for the AMIEU, also 6 October.
VICE PRESIDENT WATSON: We'll mark that exhibit S2.
EXHIBIT #S2 SDA SUBMISSIONS RE EXTENSION OF TIME FOR THE AMIEU DATED 06/10/2015
PN118
MR FRIEND: Thank you, your Honour.
PN119
VICE PRESIDENT WATSON: Ms Kelly?
PN120
MS KELLY: Thank you, Vice President. I think it's back to me. We'll proceed on the appellant in 4449's application for permission to appeal. May I take it that the Bench has had the opportunity to read the written submissions that have been filed?
PN121
VICE PRESIDENT WATSON: Yes, we've had that opportunity.
PN122
MS KELLY: Thank you. The headline question in this application is whether or not this tribunal should permit Mr Hart to prosecute his application for permission to appeal the agreement in the following circumstances: we have in excess of 77,000 workers covered by this agreement. We have some 50,000 of those workers who are potentially affected by the claims Mr Hart makes in relation to the better off overall test.
PN123
We have, as revealed by the materials filed by Coles in the approval application, a workforce that has characteristics of vulnerability, precarious employment and age among them. We have a circumstance where it will be contended at the substantive hearing that the material placed before this tribunal, and on which it made its decision to approve the decision, was materially difference in that it failed to draw to this tribunal's attention a number of factors that weighed upon the state of satisfaction it was required to reach, the first and most critical of those being the circumstance that potentially 50,000 workers are in financial terms worse off under the agreement than under the award; and, second, and significantly, a failure to draw to the tribunal's attention a clause in the agreement which provides that part‑time workers will be remunerated for the performance of voluntary overtime at the rate applicable to a casual employee.
PN124
They are circumstances that bear on the question of whether or not Mr Hart should be permitted to proceed with his appeal and it's significant and this will be developed that what we are talking about here is not if the appellant ultimately makes good his case a small detriment, we are talking about a detriment of up to 15 per cent in financial terms against the award. That is when all of the material in the submissions put against the appellant is swept away, the only concern that this tribunal should have in this application for permission to appeal. In all those circumstances, is this a matter that warrants the attention of the Full Bench and manifestly, the answer to that question is yes.
PN125
There's two preliminary points that we seek to draw out. The first is a point about the protective nature of the statutory scheme that applies to enterprise agreements and the second relates to the jurisdictional nature of the grounds of appeal that have been lodged and I'll deal with those in turn. Part 2-4 of the Fair Work Act sets out the scheme by which enterprise agreements are made and approved.
PN126
Relevant for today's purposes, there are three stages in that process in which we can see a statutory design intended to protect the interests of workers. The first of those protective stages occurs prior to bargaining commencing. For example, we have the obligation to issue notices of representational rights and we have a process by which workers can appoint bargaining representatives to represent them in the course of the negotiations. That is the first stage of the protective mechanism that the Parliament has put in place.
PN127
The second protective layer arises by way of the pre‑approval steps. We see, for example, an obligation to ensure that workers have access to a copy of the agreement and an obligation on an employer to ensure that it's properly explained. We see an obligation to ensure that workers are aware of when and how a bargain is to take place and for there to be an access period. That is in very brief terms, because I understand that the Bench is very familiar with the scheme, the second protective layer that we see in the statutory scheme for enterprise agreements.
PN128
The third protective layer, and the critical one for this proceeding, occurs at the point of approval. And it's critical to note that what we have there is not the act as in the bargaining processes with responsibility, we see this statutory tribunal exercising a statutory function to approve or not to approve the agreement if it is satisfied of particular things. That is the third layer of protection for workers; that it's not for the parties that bargain for the agreement to determine whether or not it ought to be approved, it's for the tribunal to determine whether or not it ought to be approved, taking into account the mandatory considerations.
PN129
There is a process by which that protective regime is implemented that involves, for example, the filing by the employer of a statutory declaration and the opportunity for bargaining representatives to file statutory declarations under the pain and penalties of perjury about particular matters to assist the tribunal in the performance of its statutory function, but ultimately, and critically to this case, it is the tribunal's function to perform.
PN130
What flows from that are two themes that the Bench will hear throughout the course of our submissions. The first is that we are dealing with beneficial legislation which has a protective function for workers. The second is that it is not the function of bargaining representatives or employers to determine whether or not the statutory minima is met. That function is reserved to this tribunal; the role of bargaining representatives being to assist in that process but not to determine it.
PN131
What that leads into is the consideration of the nature of the appeal grounds that Mr Hart put before the tribunal. As indicated, we have a statutory tribunal exercising a statutory function. The Bench will have seen in the submissions of Mr Hart and in the reply submissions of the SDA some debate as to whether or not an agreement passing the better off overall test is a jurisdictional fact. We say that it is. If Mr Hart is ultimately granted permission to appeal, we will develop that in the course of the substantive hearing.
PN132
It's an arid argument for today's purposes for this reason: all of the grounds of appeal advanced by Mr Hart go to jurisdiction in any event. It is clear from the decision in Avon Downs [1949] HCA 26; 78 CLR 353 that we are dealing with a state of satisfaction that is examinable in particular circumstances. Those circumstances include whether or not the decision‑maker addressed himself to the question formulated by the statute; whether it was a conclusion affected by a mistake of law, whether extraneous reasons were taken into consideration or inappropriately excluded from consideration and whether or not on the basis of the decision, even though the precise way in which the error occurred can't be identified, it is nonetheless the case that the decision‑maker is only capable of explanation on the basis that an error occurred. We are well and truly within the Avon Downs event horizon in this case.
PN133
We are dealing with, in relation to the appellant's first ground that the agreement doesn't pass the BOOT, the allegation, the assertion, that for up to 50,000 of these 77,000 workers there is a financial detriment as against the award. We accept that's not the end of the matter. The BOOT requires that all of the terms of the agreement be looked at as a whole and for there to be a balancing, a synthesising of those factors, to ultimately form the state of satisfaction as to whether or not the agreement passes the test, but what can be clearly seen from the material before the tribunal and the terms of the decision is that that fact, if it were made good, was not drawn to the attention of workers when they voted on the agreement nor was it drawn to the attention of this tribunal in the material put forward by Coles by way of its F17 form.
PN134
So what we have is a relevant consideration, a materially relevant consideration, that workers are financially worse off, that was not placed before the tribunal and on the face of the decision does not appear to have been taken into account in the Commissioner's weighing up process. That is squarely a matter that goes to jurisdiction. The same situation pertains in relation to the contention advanced in respect of payment for part‑time employees performing voluntary overtime at the casual rate. That casual rate applies to those workers in lieu of the rate of pay and the penalties that would apply to them as part‑time employees.
PN135
It is a matter that the tribunal ought to have had regard to in weighing up whether or not the agreement passed the test and it is a matter that was not explained to employees before they voted on the agreement and a matter that was not drawn to the attention of this tribunal when it exercised its statutory function. Relevant considerations not considered are errors going to jurisdiction.
PN136
The third ground that's relevant in this context is the allegation about the failure to explain the agreement. That failure encompasses the two matters that I've just put to the Bench as well as the series of changes made to the agreement in between the dates in which it was explained to employees and the version that was ultimately voted on. The requirement to explain the agreement to workers is a jurisdictional fact proper. That did not occur. There was no application before the tribunal which it could validly approve.
PN137
The relevance of all of this is that we are squarely dealing with errors which go directly to jurisdiction and the law on this point is clear, we say, which is that where errors are arguable and go to jurisdiction rarely, if ever rarely, if ever will permission to appeal be refused and that is the territory we say we are squarely in in this case and which sweeps away the balance of the material put forward by those opposing us, particularly when viewed through the prism of Coles' concession that for the purposes of today's proceedings we have an arguable case.
PN138
If we have an arguable case, and we say that we do, and Coles is prepared to concede that for today, it is a case that goes to jurisdiction and there is nothing else in the circumstances of this appeal that would warrant a departure from the ordinary rules; that rarely, if ever, would permission to appeal be refused in those circumstances.
PN139
VICE PRESIDENT WATSON: I understand, Ms Kelly, that the points you've emphasised, there is the other ingredient that is put against you that the procedure under the Act involves approval by way of submitting statutory declarations and a process involving the member and an opportunity for the bargaining representatives to submit material and ultimately undertakings and the like to address concerns, but it appears that no bargaining representative had raised matters that are now sought to be raised, so an entire process was undertaken.
PN140
The AMIEU did raise some matters and the Commissioner addressed those. That's perhaps in a different category, but the matters that your client seeks to now agitate, not as a bargaining representative but his bargaining representative was the SDA.
PN141
MS KELLY: Indeed.
PN142
VICE PRESIDENT WATSON: An entire process was undertaken and now on appeal, additional material, additional further matters, are sought to be raised. Isn't there a question of how the system would be workable if it were open to parties who were not bargaining representatives, indeed, parties that were represented otherwise in proceedings sought to be separately represented for the purposes of instituting an appeal? There's that whole question and how it bears on the practicality of the operations of a system which is an additional agreement.
PN143
MS KELLY: All of that is accepted, Vice President, and let me deal with that in a number of ways. First, permission to appeal isn't contingent on having been a bargaining representative. It is self-evident to all of us who practice in the industrial field that the majority of workers do not appoint themselves as bargaining representatives. Almost all of them who are members of the unions rely on the default bargaining representation from their union.
PN144
But this point goes to the limited role of bargaining representatives within that scheme. It's not an adversarial system in which the parties seeking to negotiate the agreement set the meets and bounds of it and then bring it to this tribunal for approval on their terms. The bargaining representatives have a particular role in the statutory scheme, but that role does not extend to setting the boundaries of whether or not an agreement meets the better off overall test or it doesn't. That function is reserved to this tribunal.
PN145
VICE PRESIDENT WATSON: Mr Hart, I think I read somewhere, campaigned for a no vote in relation to the agreement. He was aware that the agreement was going up for ballot ‑ ‑ ‑
PN146
MS KELLY: Indeed.
PN147
VICE PRESIDENT WATSON: ‑ ‑ ‑ and he would have been aware that it was approved by a majority of employees.
PN148
MS KELLY: That's so.
PN149
VICE PRESIDENT WATSON: He would have had standing, would he not, to have sought to be represented before Commissioner Bull and make submissions about whether the agreement was approved, but he didn't do so.
PN150
MS KELLY: That's true, Vice President, and he gives some evidence about why that is so. The evidence is found in his third statement and is to this effect I might go to it if that's convenient so that I have his precise words. The evidence is to the effect that it's called the second further statement and you'll see at paragraphs 7 and following, Mr Hart gives evidence about this matter and in it he deposed that he first became aware of the issues with the better off overall test by reading an article about the work undertaken by Mr Cullinan to my right. That is while the approval process is live before the Commission. So prior to that date, Mr Hart was unaware that he was left financially worse off by the agreement. Why was he unaware of that fact? Because nobody told him and nobody told his colleagues and this goes to really very much to the heart of the submission we are putting.
PN151
If we are right for that analysis and we have the concession from Coles, so for today's purposes we can assume that it's at least arguable. We say it's higher than that, but if we are right then for tens of thousands of workers it was not drawn to their attention before they voted that they would be financially worse off than under the award.
PN152
Mr Hart does not become aware of that fact until he reads an article in a newspaper, referring to the body of work done by Mr Cullinan.
PN153
VICE PRESIDENT WATSON: But within the scheme of the Act, the time for considering that question is the time employees vote and the approval process.
PN154
MS KELLY: No. Well, yes, I accept what your Honour says as to the second part. The time for the test time is at the point of approval, but it's at the point of approval that this tribunal has to decide whether or not the agreement passes the test, everything that has gone before is irrelevant to that question.
PN155
VICE PRESIDENT WATSON: I simply mean as far as Mr Hart is concerned to develop an understanding of whether he is disadvantaged or not, the time for him to consider that is at the time of considering whether to vote for the agreement.
PN156
MS KELLY: No, I don't accept that submission, Vice President, for two reasons: first, as a matter of practical industrial reality, there are 77,000 workers employed at Coles. This is a complex set of arrangements. If you take a look at one of the spreadsheets put together by Mr Cullinan, what can be seen is that there are 12 separate combinations of rates of pay that apply when you put the award and the agreement together. It's 16, he informs me. So any individual worker looking at the award and the agreement is faced with 16 separate rates of pay that they then if your Honour's proposition were to be accepted would need to analyse in order to determine that process for themselves.
PN157
The scheme of the Act tells us that that's not what is to happen and as a matter of industrial reality, workers won't behave in that way. There is an obligation on am employer, in this case Coles, to explain the terms of the agreement to the employees and that is one of the ingredients that goes into whether or not the agreement is genuinely approved.
PN158
DEPUTY PRESIDENT KOVACIC: But, Ms Kelly, it's not a one‑sided process. The concept of the access period is, as you say: (1) an opportunity for the employer to explain the agreement ‑ ‑ ‑
PN159
MS KELLY: That's so.
PN160
DEPUTY PRESIDENT KOVACIC: But it's also an opportunity for those who are to be covered by the agreement to ask questions not only of their employer, but also if they have concerns of their bargaining representatives.
PN161
MS KELLY: Of course. That's accepted.
PN162
DEPUTY PRESIDENT KOVACIC: That does not appear to have occurred in this case.
PN163
MS KELLY: It doesn't. It should be a matter of serious concern that if we are right, some 50,000 workers went through that process and remained unaware of that detriment. Now, it would be an extraordinary proposition ‑ ‑ ‑
PN164
DEPUTY PRESIDENT KOVACIC: But the point I'm making is that there is an onus on the individual themselves to ask questions if they had concerns.
PN165
MS KELLY: That's not an onus that finds ‑ ‑ ‑
PN166
DEPUTY PRESIDENT KOVACIC: That's the concept of the access period.
PN167
MS KELLY: That's not an onus that finds expression in the terms of the Act.
PN168
DEPUTY PRESIDENT KOVACIC: But that's what the concept that's what underpins the access period.
PN169
MS KELLY: That may be so as a matter of policy. There's no statutory obligation on a worker to do that. Parliament has chosen to place that burden on the employer to ensure that the agreement is explained to employees. Now, if your Honour is right that there is a subsidiary obligation on an employee to ask questions, that cannot displace the express statutory obligation placed on the employer. So the question becomes: can workers generally approve an agreement when they are unaware that there is a financial detriment to them by reason of its terms?
PN170
In the context of the protective structure of the Act that I talked about earlier, the answer to that question must be no. That's supported by the proposition I'm advancing in relation to the duty of this tribunal when an agreement comes before it for approval, which is not to be satisfied or not to ensure that the employer and the bargaining representatives have formed a view on reasonable grounds that the BOOT is met. This tribunal must be satisfied that that is in fact the case.
PN171
To return to the question that you asked me a moment ago, Vice President, about the scheme of the Act and whether it would be unworkable, I accept that proposition to a limited extent to a limited extent. The real question is how was it the case if we are right that it occurred in the circumstances of this case? Now, this is a matter that will be ventilated at the substantive hearing, if we get there, and by reason that we've not had cross‑examination here today, I can't put the proposition too high, but we have got one of two things occurring. If we are right, it was either inadvertence on the part of Coles and a number of the bargaining representatives, that they overlooked the substantial financial detriment to tens of thousands of workers.
PN172
If that occurred, that does speak to the statutory regime, but not in a way that supports it in a way that significant challenges it. Alternatively, if Coles knew and one or more of the bargaining representatives knew and they signed a statutory declaration, it was put before this tribunal under the pain and penalties of perjury, then that is a wholly different matter. That would be a fraud perpetrated on this ‑ ‑ ‑
PN173
MR WOOD: I object to that. My learned friend is subject to ethical obligations as a member of the bar and she really ought not make those sort of accusations without a proper basis.
PN174
MS KELLY: I didn't make an accusation. I said that in the circumstances of this case, if we are right, it's conditional on the "if", how do we explain how this happened? Possibly there's a ‑ ‑ ‑
PN175
VICE PRESIDENT WATSON: Let's come to the real issue here.
PN176
MS KELLY: Yes.
PN177
VICE PRESIDENT WATSON: This is not the first agreement that Coles has put to its workforce.
PN178
MS KELLY: That's so.
PN179
VICE PRESIDENT WATSON: It involves something that is hardly novel in the retail industry of flattening penalties across the course of a week.
PN180
MS KELLY: Indeed.
PN181
VICE PRESIDENT WATSON: So on certain days penalties are lower and certain other days the base wage is higher.
PN182
MS KELLY: Yes.
PN183
VICE PRESIDENT WATSON: In order to satisfy the BOOT, there needs to be satisfaction that in overall terms employees are better off. That's the central concept that we're dealing with here. It's hardly a novel one. In my experience, it arises in most retail agreements and ‑ ‑ ‑
PN184
MS KELLY: Yes, that's so.
PN185
VICE PRESIDENT WATSON: ‑ ‑ ‑ has probably arisen in relation to Coles' agreements many times in the past. So it must be a matter that employees of Coles have some understanding of. They have an opportunity to consider those questions if they're provided with a copy of the agreement to determine what they might be paid during the week and what they might be paid on the weekend. I understand I'm simplifying the argument here ‑ ‑ ‑
PN186
MS KELLY: Yes.
PN187
VICE PRESIDENT WATSON: ‑ ‑ ‑ for the purposes of the general proposition and they have an opportunity for reasons relating to that or any other reason to oppose the approval of the agreement. If an agreement is approved, they have an opportunity to express a view, either directly or through representatives or some sort of collective manner, to the member of the Commission who needs to be satisfied that the agreement passes the BOOT. But it appears that what Mr Hart is now doing is, in addition to those opportunities or perhaps in lieu of them, seeking to raise his concerns in the appeal where they all could have been considered at an earlier stage. That's the ingredient here which would appear to relate to the notion of permission to appear.
PN188
MS KELLY: A few things in response to that, Vice President. I made the submission earlier, and I repeat it, that as a matter of industrial reality, workers do not engage in the type of detailed arithmetical exercise required to tease out this issue. That is why we have a statutory regime that places the onus on the employer to explain the terms of the agreement to employees so that they are in a position to give genuine approval, which is a jurisdictional pre-requisite, to approve an agreement. That's the statutory scheme.
PN189
It failed, in our submission, in two places. The agreement was explained to the workers and, whether by inadvertence or other means, it was not explained to this tribunal by way of the F17.
PN190
VICE PRESIDENT WATSON: Can you explain for my benefit how the agreement was not explained to the employees?
PN191
MS KELLY: Yes. At least two points, which are the two that I've referred to: workers were not informed that - or some of them, a substantial number of them on our case they would be financially worse off than under the award. It might be the case that workers ‑ ‑ ‑
PN192
VICE PRESIDENT WATSON: That's contested, isn't it?
PN193
MS KELLY: That we have an arguable case is conceded for today's purposes by Coles. It is not conceded by the SDA.
PN194
VICE PRESIDENT WATSON: I haven't looked at the material underpinning the statutory declaration of the employer in any detail, but did not the employer provide a copy or access to the agreement to employees?
PN195
MS KELLY: It did.
PN196
VICE PRESIDENT WATSON: And they could have seen the wage rate that was paid for hours during the week and hours paid at the weekends.
PN197
MS KELLY: They could have, but there's ‑ ‑ ‑
PN198
VICE PRESIDENT WATSON: Are you saying because the industrial reality is employees don't do calculations of that nature that Coles failed in not providing further analysis?
PN199
MS KELLY: No. We say that there's two obligations. The first is to make the agreement available. The second under section 180 subsection (3) is to explain it. It's not explaining it to simply provide a copy and that's why there are two distinct statutory obligations; one to provide it and one to explain it. In terms of explaining it, it is, as we see it, an extraordinary proposition that it could constitute explaining an agreement to workers if it fails if that explanation fails to draw to their attention that they are financially worse off than under the statutory minimum.
PN200
COMMISSIONER ROE: That wasn't the issue whether the employees are financially better off or not. Under the BOOT test, that's about what the agreement allows. It's not about what the current practices are or what the current rosters are. It's about what the agreement allows because it's about prospective employees as well as existing employees. So you can't consider the better off overall test against the current rosters that people work and that's an assessment that the Fair Work Commission has to make, isn't it? They have to make an assessment, when you look at the award, you look at the agreement, and what does the agreement allow to be done and compare that against the award and consider whether employees are better off overall.
PN201
MS KELLY: I accept that entirely what you say, Commissioner, with this caveat: the date at which the assessment is to be made is the test time, which is the date that the agreement is approved and it cannot be a simply hypothetical line by line comparison of an award and agreement. There needs to be an analysis of the work practices of the employees who are to be employed under the agreement.
PN202
COMMISSIONER ROE: Why? Their work practice could change.
PN203
MS KELLY: Indeed they could, but that's why the ‑ ‑ ‑
PN204
COMMISSIONER ROE: So you could have employee you know, employees could be employed on different rosters under the agreement than what they are currently employed under.
PN205
MS KELLY: Of course. That's ‑ ‑ ‑
PN206
VICE PRESIDENT WATSON: And they've still got to be a better off overall in respect of whatever the work arrangements might be that are allowable under the agreement compared to the award. Isn't that correct?
PN207
MS KELLY: That's so, but the statute sets the date at which the assessment is to be made and that is the test time and that is the date at which the agreement is to be approved and so the best means of the tribunal reaching the required state of satisfaction is to have regard to the rosters in place at the test time. They are in evidence before you in this proceeding, Commissioner.
PN208
COMMISSIONER ROE: But at the test time there's an ability to have any roster that is permitted by agreement as compared to any roster that's permitted under the award. That's the reality at the test time.
PN209
MS KELLY: I accept that, Commissioner.
PN210
COMMISSIONER ROE: So that's what has to be considered. It's not the particular roster that somebody might be working today. That's not the basis for the better off overall test, is it?
PN211
MS KELLY: I accept what you're saying, Commissioner. In terms of the practice adopted by the tribunal for making that assessment, if we take Coles with 77,000 workers and an agreement with the sheer number of combinations that I described earlier, 16 combinations of time and allowances, assessing every single combination would be impractical.
PN212
COMMISSIONER ROE: You don't have to assess every single combination. You can make reasonable assessments based on reasonable assumptions.
PN213
MS KELLY: Indeed. And, Commissioner, you're at the heart of where we say it went wrong in this case. The F17 filed by Coles included sample rosters. Those sample rosters, in our submission, do not reflect the actual work practices of Coles employees.
PN214
COMMISSIONER ROE: I come back to the question, that's not an issue in a sense for Coles. That's an issue for the Fair Work Commission in assessing whether or not the test is met, isn't it?
PN215
MS KELLY: It is. Yes. But for two additional points there, the first is that Coles sign a statutory declaration and as part of that, they provide the sample rosters and the decision makes clear I withdraw that. The communications between the terms of Commissioner Bull and the bargaining representatives make clear that the Commission relied on the sample rosters provided by Coles. That's in express terms. Those sample rosters, on our case, fail to adequately pick up the actual work practices of a substantial number of Coles' employees.
PN216
How that state of affairs came to be, we don't know, and we won't know until the substantive hearing, if there is one, but it remains that the state of satisfaction that the tribunal reached was based on inadequate information which had the consequence that relevant considerations weren't taken into account; that relevant consideration being that the workers engaged at the test time on the rosters in force at that time worked a substantially greater number of nights and weekends than were revealed on the roster provided to the tribunal.
PN217
Because it is a state of satisfaction for the tribunal, it's not for the parties to establish that the test is met but it is for the tribunal. The question ought to have been asked as to whether or not those sample rosters were representative of the work patterns of the employees.
PN218
The answer to that question in our submission was absolutely no. Had that question been asked, the difficulty we have identified would have come to light and ought to have been dealt with.
PN219
Now that said, it was before the Commission. The AMIEU F18 included three samples rosters, the third of which, in express terms, identified that ongoing add-on employees would be worse off. That is not a matter that appears in the text of the decision and we are permitted to assume therefore that it wasn't taken into account.
PN220
Now that is particularly so in circumstances where we know that more than 50,000 of the workers covered by this agreement are ongoing employees. In addition to that there was the material of Mr Cullinan. Now I apprehend it's put against us that that wasn't evidence but it's very clear that when a statutory tribunal makes a decision it is bound to have regard to all of the material before it irrespective of how that material came to be there, the Minister for Immigration v Yusuf.
PN221
So the material put in by Mr Cullinan alerted, ought to have alerted the tribunal the deficiency, particularly when read with the AMIEU F18 which put it in express, clear, blunt terms, "ongoing workers are worse off".
PN222
Relevant considerations put before the tribunal which don't find expression by way of the concerns raised about undertakings and which don't find expression in the decision leading to the question of, was it a consideration that the Commission at first instance weighed but determined that notwithstanding the financial detriment for the group was met, something that ought to be expressed in clear terms if that's the case, or was it not taken into account? And the decision doesn't tell us, again.
PN223
VICE PRESIDENT WATSON: So do you accept that on the rosters provided by Coles to the Commission that employees were not worse off? And is it your submission that there are other categories of workers covered by different rosters that were not considered and in respect of those employees, or potentially employees, the agreement doesn't pass the better off overall test?
PN224
MS KELLY: I have to take one instruction, Vice President. Yes. Thank you for that moment, Vice President. We can accept for today's purposes that the calculations in those rosters show that workers are worse off with this are better off, my apologies, subject to the caveat that they do not include the overtime calculations which is the issue I referred to earlier about the agreement providing that overtime for part time employees, accepted voluntarily, is paid at casual rates and not at the part time rate plus penalties.
PN225
So, yes, on what's in the rosters they are better off. That doesn't do two things. One, it doesn't factor in the overtime issue we've raised, and two, the rosters presented themselves, are materially deficient because they grossly understate the amount of night work and weekend work that is in fact performed. And what's our test for that? The rosters that were in place for two stores, Benalla and Northcote at the test time, the relevant time, show a substantially higher proportion of hours being worked at nights and on weekends than in the sample rosters provided to the Commission.
PN226
COMMISSIONER ROE: Is your response that taking into account the issue which Commissioner Bull raised and had dealt with by undertakings that were provided by Coles in respect of the casual loading and the junior rate?
PN227
MS KELLY: Indeed it is. We accept that those undertakings remedy for those deficiencies.
PN228
COMMISSIONER ROE: Yes, but I suppose my question is, without those undertakings do you accept that employees were better off overall?
PN229
MS KELLY: No. Without those undertakings, those classes of workers were significantly worse off and indeed, worse off than the cohort we are now dealing with, which is ongoing employees.
PN230
COMMISSIONER ROE: Well, part time workers are - - -
PN231
MS KELLY: Adult. Adult ongoing employees. I should be very clear. Yes, the way that Mr Cullinan puts it is that the undertakings given by Coles in relation to the casuals and the juniors have the effect of making them proportionately worse off as compared to their adult counterparts.
PN232
DEPUTY PRESIDENT KOVACIC: Ms Kelly, just coming back to your submissions around the alleged deficiencies in the explanation that was provided to employees, when one looks at the F17 that was submitted by Coles, by Mr Yoannidis on behalf of Coles - - -
PN233
MS KELLY: Yes.
PN234
DEPUTY PRESIDENT KOVACIC: - - - it indicates, among other things, state specific summary brochures were made available to team members detailing the changes proposed under the enterprise agreement. On what basis is that deficient?
PN235
MS KELLY: Would your Honour mind referring me to the place in the F17?
PN236
DEPUTY PRESIDENT KOVACIC: Item 2.6.
PN237
MS KELLY: 2.6.
PN238
DEPUTY PRESIDENT KOVACIC: It's page 28 in the appeal book.
PN239
MS KELLY: Thank you. The difficulty is that changes were explained as between one agreement and the next. That's not the requirement. We've got three documents but I don't want to confuse my submission. We've got the agreements that were in force before this period.
PN240
DEPUTY PRESIDENT KOVACIC: Yes.
PN241
MS KELLY: We've then got what we are calling the earlier draft.
PN242
DEPUTY PRESIDENT KOVACIC: Yes.
PN243
MS KELLY: The agreement that we say was explained, and then the final draft. As between the earlier draft and the final draft, changes were explained as against the agreements then in force, said to have been explained. We say that the changes between the earlier draft and the final draft were not explained. They were simply noted on a cover sheet and distributed to stores in a markedly different fashion to the way that the earlier draft was explained. But the explanation of the agreement isn't simply a comparison between an agreement then in force and the new agreement. It goes beyond that.
PN244
It goes to all matters necessary to ensure that in our submission there is genuine approval and we say that required that Coles bring to its workers' attention, one, you are worse off financially than under the award, we give you these other benefits and you can put it in the mix and decide for yourselves about whether or not that's an agreement you're prepared to vote for, and two, part-timers, we're going to pay you for overtime worked voluntarily at casual rates. Under the award, you would be entitled to a whole range of penalties that would have the effect that you received a higher round of pay under the award than what we're proposing to do.
PN245
Absent those two pieces of information the agreement was not explained truthfully. That's the submission.
PN246
VICE PRESIDENT WATSON: Well, but if - - -
PN247
MS KELLY: And that's a separate submission from whether or not the balance of the changes which are noted on the cover sheet were explained.
PN248
VICE PRESIDENT WATSON: If employees were advised through the various processes which are summarised there that during the week for a particular classification, you are to be paid X amount per hour and on the weekend for a particular classification, you're paid Y, per hour, and for part-time employees who work additional hours, they'll be paid the casual rate and that's I assume there's an express term to that effect in the agreement so that the explanation of what the agreement says was all explained in such a manner. Was it an obligation to advise employees of the comparison between the agreement and the award, as part of explaining the terms of the agreement? And what's the authority for that proposition?
PN249
MS KELLY: There's no authority for that proposition. We say it flows axiomatically from the statutory scheme. The obligation isn't simply to explain the terms of the agreement. It's to explain the effect of those terms. And we say that what this is designed to do is to generate the foundation upon which workers can make that decision about whether they genuinely approve it or not. And that means that not only do they need to know what the terms are, they need to know the effect of those terms. And one of those effects, and I would think a very material effect, is that they will be paid less than the statutory minimum.
PN250
If that is not explained to them, in our submission, the obligation to both explain the terms and the effect has not been discharged.
PN251
VICE PRESIDENT WATSON: Now you say the obligation to explain the effects includes a comparison with the award?
PN252
COMMISSIONER ROE: I just take note of your second point which was the issue of the agreement as altered, not having been explained.
PN253
MS KELLY: Yes.
PN254
COMMISSIONER ROE: Now at page 119 the appeal book lists the changes. Aren't all those changes either relatively minor corrections or matters which would be beneficial, rather than non-beneficial and therefore wouldn't affect in an adverse way, the capacity for people to have made a judgment?
PN255
MS KELLY: That may be so but that is a separate question to the obligation that in here as to explaining the agreement, which is to explain the agreement and the effect of its terms. That is an entirely separate question to whether or not there was genuine approval.
PN256
COMMISSIONER ROE: No, I understand it's an entirely separate question but in practical terms, during the access period obviously you can't make substantial changes to the agreement without extending the access period. I understand that because otherwise people wouldn't have had an opportunity to properly consider the agreement. But if you were to read the requirements of the legislation as preventing, you know, the correction of minor matters during the access period then wouldn't that be an unnecessary and pedantic reading?
PN257
MS KELLY: We say no because the obligation attaches to "the" agreement. Now "the" agreement that was put out to ballot was not the agreement that was explained. And the obligation again is not to it's to explain the terms of the agreement. This is a different agreement to the one that was put out to employees. The section isn't qualified by an obligation to explain only those matters that cause a detriment to workers. The section is directed to the agreement and its terms and on our case that cannot be satisfied by relying on the explanation attaching to an earlier agreement, no matter how similar in its terms to the later one.
PN258
VICE PRESIDENT WATSON: Implicit in what you're just saying though, Ms Kelly, is that you ignore what was previously explained to employees, which I'm not sure what the basis you make that submission on.
PN259
MS KELLY: No, we would accept that it is the later agreement that needs to be explained which might have this practical effect, that it is explained that the terms are identical, save as to these matters, and those matters are then the subject of detailed explanation. That would have the characteristic or the quality of being an explanation of the agreement and its terms albeit relying on something that's gone before, to the different matter from taking no steps to explain it other than a cover sheet that records the dot points that we can see on page 119.
PN260
In any event the failure to explain has its significant element in relation to the detriment that workers would suffer financially under the agreement.
PN261
If I might move on to say something about the submission put against us in relation to the admission of new evidence. It is said for Coles that running this case as a substantive hearing would require substantial new evidence and that it would bear little resemblance to that which was run at first instance.
PN262
We say that argument can be put to one side for three reasons. The first is there was no public hearing. Nor was there a notification that parties could be heard by contacting chambers. Now no doubt it will be said that that's not a requirement but it is the practice adopted by this tribunal in relation to enterprise agreements generally.
PN263
So there was simply no opportunity for people to be heard if they wanted to be. There was the correspondence passed on between chambers and the bargaining representatives about various undertakings and the agreement was then approved. So the question of what might have been done at first instance simply can't be answered because no hearing took place.
PN264
The second point is that it is said for Coles that it might require a substantial body of new evidence to demonstrate whether or not Coles considered that the agreement past the test. The proposition there is simply that Coles signed an F17 indicating that the agreement did. Presumably Coles have retained the body of work that it did to satisfy itself that the agreement passed the test and the question, "what additional material", wasn't put before any tribunal. But in any event it is very hard to see how a substantial body of work needs to be done in circumstances where Coles already had to satisfy itself of the statutory requirement and indeed, sign the statutory declaration saying that it was so satisfied.
PN265
It strikes us that it's simply a case of whatever those matters were that Coles took into account or whatever process it followed, whatever material was generated upon which it formed the significant state of satisfaction that the agreement passed the test, can be put before this tribunal. So it's very difficult to see in that sense how there could possibly be a substantial body of new evidence that needs to be called.
PN266
The third point to be made is that all of the new evidence that has gone in, we can make good our substantive case without it if necessary. If we are granted permission we will move for leave to file the evidence at the substantive hearing. But it goes as much to the question of permission to appeal as it does to the substantial merits of the appeal. And that is so because when this tribunal now raise up all the discretionary elements on the question of permission to appeal, what it has before it is evidence that in the store of Benalla, 40 per cent of its workforce are financially worse off.
PN267
In the Coles store at Northcote, two thirds of workers are financially worse off. That evidence is in for the purpose of persuading this tribunal that this issue is of such significance and breadth that it is in the public interest that an Appellant Bench of this tribunal take another look. Take another look.
PN268
I think I have adequately dealt with our public interest grounds. In summary we say it doesn't pass the test for a substantial number of workers and that is a matter that is significantly in the public interest in light of the statutory scheme. The question raised with me by the Vice President and with which we agree, is the question of how an agreement that does not pass the test to a significant extent we're not dealing with something around the margins, we're talking 10, 12, 13, 15 per cent, financially worse off - was navigated by Coles through the approval process. There is a huge public interest in that question which goes back to substantial rosters and the like that we discussed earlier and how that came to be.
PN269
And the third is the substantial injustice that would accrue to the workers who are affected, including the appellant, if the matter wasn't the subject of review by the Full Bench. And Mr Cullinan reminds me that under the roster Mr Hart now works in, he's more than 20 per cent worse off than under the award. And so it's a detriment that is accruing with every passing day.
PN270
A number of smaller other matters to be dealt with in relation to what's put against us by Coles. Coles devotes a substantial amount of its submissions in reply to teasing out what it says is a public interest tension between the administration of justice and the right of appeal. Two points that need to be made following which a conclusion. The first is that we need to see that submission through the prism of the concession that there is an arguable case. But the reliance on jurisprudence from a range of other areas, and you'll see that my learned friends for Coles have gone through special leave appeals and judicial review and all manner of other types of proceedings, is apt to obscure the issue in this case.
PN271
We have a statutory scheme, we have a right of appeal, we have established grounds and it is that and nothing more that should guide the decision of this tribunal. But it must be seen in the context of the scheme of this Act as a whole which has a protective function for workers and reserves to this tribunal and this tribunal alone, the task of determining whether or not an agreement passes the BOOT.
PN272
The second point is that to the extent that my learned friends for Coles rely on decisions such as Aon, they are wholly distinguishable. Cases like Aon arise in a commercial context with an adversarial system. There are two parties, or potentially more parties, who by their pleadings, define a scope of issues that are to be put before a tribunal and then determined by way of an adversarial court process.
PN273
That is what gives rise to the public policy reasons that underpin the decision in Aon and the balance of those issues raised by my learned friends for Coles. That bears no relationship to the task that this tribunal is performing in circumstances where what occurred at first instance was not an adversarial contested hearing where the parties defined the scope of the issues and the battleground on which it would be fought. It was the tribunal exercising a statutory function to satisfy itself of particular things. That is of a wholly different nature. The tribunal is required to do what is necessary in order to reach that state of satisfaction and so decisions of the kind we saw in Aon are simply irrelevant.
PN274
What all that leads to is the conclusion that the public interest tension alleged by Coles in this case is far more apparent than it is real. We have a public policy underpinning the Act which is that workers should not receive less than the statutory minimum. We have in this case a large workforce with characteristics that make it vulnerable. They are young. They are casual. They are from I don't think there's evidence of this fact but judicial notice could be taken of it from non-English speaking backgrounds. They are a diverse workforce that is vulnerable to exploitation.
PN275
When we look at those circumstances and the strength of the arguable case that has been put there is no public tension of the kind advanced by Coles in this matter and indeed it is effectively a submission that if the agreement doesn't pass the boot then this tribunal ought not to review it by reason of the time, cost and inconvenience to the employer who in our submission had primary responsibility for ensuring it complied with the statutory minimum and in this case, grossly and manifestly failed to do so.
PN276
The final set of issues I need to address arise from the submissions of the SDA in relation to question of permission to appeal. And for Coles as I've indicated a number of times, there's a concession for today's purposes that our case is arguable. That is put in issue by the SDA. Very briefly, because we have traversed most of this already, but for completeness issue is taken in paragraph 7 through 10 about the additional evidence. I've just addressed the Bench on what that additional evidence goes to and why it is permissible to have regard to it in these proceedings.
PN277
The contentions in 11 and 12, all the way, the submissions that we have advanced are set out, we say, in clear terms with the arguments we put forward and as I indicated we are past the Avon Downs event horizon and we squarely in the territory of jurisdictional error and the matter must be viewed through that prism.
PN278
To the extent that criticism is made of Mr Cullinan it might be said that it's extraordinary that it took somebody who doesn't work at Coles to do this analysis to bring this issue to light. But in light of the significant far reaching consequences of what's been put that's a matter that some might say ought to be commended and not criticised.
PN279
I have dealt with at paragraphs 16 and following, why we say we are dealing with errors of jurisdiction. So the suggestion in paragraph 16 that the Commissioner must satisfy it on the basis of the evidence or material that was before him, I've put our submissions as to uses. The tribunal is required to have regard to all of the material before it irrespective of how that material came to be there and we had two significant bits of material that appear not to have been considered, the F17 filed by the AMIEU and the material filed by Mr Cullinan.
PN280
At paragraphs 21 and 22 there appears to be some misunderstanding of our contention here. We don't contend that the casual rate doesn't compensate for leave entitlements. We contend that paying a worker who is otherwise entitled to their ordinary rate of pay plus penalties at the casual rate for overtime leaves them worse off and that that was a matter that ought to have been put before the tribunal.
PN281
To the contention as regards the undertaking, two responses. The first is that the tribunal considered it necessary that the undertaking be given. It's not enough to say, well, it probably has no effect. It was, in the tribunal's view, necessary that it be given in order to ensure that the agreement met the BOOT and if that is so, it is not for us now to simply say we can put it to one side and disregard it in the absence of evidence that it will never be the case that a worker will be worse off that has need to have resort to that clause.
PN282
If that is accepted then it falls squarely back into the category set out in Main People and was not an undertaking capable of satisfying the concern. But moreover, if what we put as to merits is accepted then that undertaking will have a material effect for young workers and casual workers who are affected by the issues we have raised in relation to nights and weekends because the undertaking isn't restricted to particular forms of pay it encompasses the whole of the agreement and so there will be real and material benefit to those workers which on the terms of the undertaking at the moment can only be exercised at the end of each twelve month period.
PN283
Finally, we note paragraph 36 of the SDA's submissions and adopt wholeheartedly the second sentence. "The better off overall test needs to be considered against real employees, not against assumed employees on undisclosed rosters".
PN284
COMMISSIONER ROE: Well, is that correct?
PN285
MS KELLY: We say yes. We say yes.
PN286
COMMISSIONER ROE: How is that established by the statute?
PN287
MS KELLY: Because it marks the test against individual employees.
PN288
COMMISSIONER ROE: Well, that's correct.
PN289
MS KELLY: And so that means that the employees, the actual employees for whom a test needs to be directed and not to hypothetical classes of employees. And the evidence before this tribunal now is the evidence of Mr Cullinan that those actual workers working in the rosters that were in place at the test time, 40 per cent at Benalla and two thirds at Northcote are worse off.
PN290
COMMISSIONER ROE: Do you concede point 26?
PN291
MS KELLY: Twenty-six, Commissioner?
PN292
COMMISSIONER ROE: Yes.
PN293
MS KELLY: Yes. It's not a test. Now the very final point before I sit down is the question of Coles' argument as to inconvenience. A substantial amount of material has been put on about the inconvenience to Coles. That argument needs to be looked at in two contexts. The first is the relative inconvenience as between Coles which is part of the Wesfarmers Group, a very large multi-national company, up against individual workers who are up to 20 per cent worse off than this statutory minimum, the very bare minimum that they ought to be paid, in circumstances where we have Wesfarmers making a net profit after tax of 2.6 billion dollars.
PN294
Now the submission for Coles is that there is a several million dollar detriment to it if this agreement is undone and that must be seen through the prism of the disadvantage to workers as compared to a 2.6 billion dollar Wesfarmers' profit and through the reality that on Coles' own evidence it could have waited until the end of the appeal period before it implemented the wholesale changes that have caused the significant cost. It chose not to do so. That is then a matter it brought on itself and that should not weigh against the right of Mr Hart, a worker on a, with respect to him, low wage, who now finds himself personally 20 per cent worse off under this agreement than he would be entitled to under the statutory agreement.
PN295
We rely on the balance of the matters set out in our written submissions. Thank you.
PN296
VICE PRESIDENT WATSON: Thank you, Ms Kelly. Mr Muller?
PN297
MR MULLER: Thank you, Vice President. The union relies on the submissions that have been made by my learned friend in relation to permission to appeal and I don't propose to re-plough furrowed ground. So to that extent I have nothing further to add. There is the issue of the extension of time application and I can address the Commissioners on that now or we can leave that to - - -
PN298
VICE PRESIDENT WATSON: Yes, I think if you do that now, yes.
PN299
MR MULLER: Thank you, Vice President. As my learned friend said there is a concession by Coles, at least for the purposes of today, that there's an arguable case that the agreement that was put forward doesn't pass the BOOT test. And as my friend said, really that leads to if that's right and that's made out, if the appeal is allowed, then there's one of two options and that is that there was an inadvertence or that there was some sort of deliberate action. And before my friend over there gets to his feet again, I'm not saying that it's deliberate but I'm saying that that's the situation that is put before the tribunal. There is material that is before the tribunal that Coles concedes presents an arguable case.
PN300
In terms of what the parties then seem to say is, they say, well, Mr Hart shouldn't be allowed to prosecute an appeal because he's not really the right person, that there are other people who are bargaining on his behalf. And so really he shouldn't be allowed to do it because there's all sorts of inconvenience to Coles because they've put systems in place, they've put procedures in place.
PN301
But then against my client they say, well, there'd be no basis to say that we're not a proper party to appeal. They say that we're out of time to appeal. So it suggests in my submission, Commissioners, that there's a case here that should be examined, that in effect, Coles concedes that there's a case to be examined that says, well, Mr Hart's not the right person but the right person was too late, or the right entity was too late to get involved in this dispute. And I'm not going to take you through the law that underpins the application to grant an extension of time. Your Honours are well familiar with that. There are, in essence, six points that I want to make about that and they're relatively short points.
PN302
But before I go to those six points I also make the point that the application for an extension of time is opposed by the SDA and one wonders why that's so. In my submission if Mr Hart and the union are wrong about the failings of this agreement then one would have thought that the SDA would say, well, that should be examined by the Full Bench and the light should be shed on what went wrong so that their workers are not worse off. Instead they say, no, no, we oppose this. It all should just be left alone and no-one should look at it again.
PN303
It's a strange position for a union to take when there's material before the Full Bench that suggests, and is conceded for the purposes of today, leaves workers worse off.
PN304
MR FRIEND: Not by the SDA.
PN305
VICE PRESIDENT WATSON: We're not concerned with positions adopted by the parties and their reasons for doing it. We need to look at the principles for granting an extension.
PN306
MR MULLER: Certainly, Vice President.
PN307
VICE PRESIDENT WATSON: Yes, which you've identified in your submissions and there is a real question, is there not, with the union that was a bargaining representative not appealing within time, seeking to lodge an appeal so late? In isolation there would be extreme difficulty, would there not?
PN308
MR MULLER: Yes. In isolation, yes, your Honour, completely right, and that's the important factor because this is not in isolation. So can I - - -
PN309
VICE PRESIDENT WATSON: So the question is how the other factors change what would appear to be a significant hurdle for you.
PN310
MR MULLER: So can I start answering that by going back to the bargaining period and just noting that the union were involved in the bargaining period. They took action, they were involved in the process and they filed an F17 that raised concerns about the agreement so it's not like they sat and did nothing. But they went through that bargaining process and then at the end of that bargaining process, as Mr Smith says in his statement, they made a decision based on resourcing not to pursue it further. And that was a decision that they made and if the 21 days are just rolled out and then the appeal period expired, then what we say, Vice President, is completely correct. It would be very difficult to step in that some point after that 21 days.
PN311
But that's not in fact what happened because Mr Hart lodged an appeal and so then at that point when the appeal by Mr Hart was lodged, what in fact the union did was that they resolved to support Mr Hart. They resolved to support his appeal. It was discussed by the national executive and then on the 10 September they appear before the Commission in support of Mr Hart and his application. So in that first period between the start of August and 10 September, it's not like they did nothing. They knew Mr Hart had an appeal on foot. They resolved to support it. They in fact turned up to support it. And then what led them to take the next step of not just supporting but seeking to be an active party, was the suggestion that there might be an adverse inference drawn against them by not prosecuting an appeal. And at that point Mr Smith says the union decided to get involved, not just as a supporting party but as an actual party.
PN312
Now it's said that that's not a sufficient reason. That in my submission, it is a reason that takes into account the limited resources that the union has, that any organisation has. They have to make a decision about where they best to put their resource use. When the appeal period ticked over they knew that Mr Hart had made an appeal and they resolved to take various steps about it. That explains why they didn't bring this appeal until some 43 days later on. So that's the first thing that your Honours need to be concerned about is, is there a reason? And there is a reason and it's put forward and it's that. And in my submission in the circumstances it's a good reason and an adequate reason that that hurdle, the leave being granted, should be cleared.
PN313
VICE PRESIDENT WATSON: Do the grounds of appeal travel beyond the Hart appeal?
PN314
MR MULLER: They do in one respect. It's in respect of the undertakings. I might just come back to that. There is one ground that goes beyond the appeal that Mr Hart puts. So I'll come back to that if I can. It's accepted that as, I think your Honour started with, there's a length of time has passed and we concede that it's a significant length of time but as I said, for the reasons that are put forward there's an explanation for the delay and the length.
PN315
The arguable case which is the next hurdle, at least by Coles, has been conceded for the purposes of today. The SDA don't concede that but I'll really deal with what they have to say when I turn to the question of prejudice which I think is something that your Honours are going to be particularly concerned about, what prejudice would other parties suffer.
PN316
And so turning to that in respect of Coles, Coles make the decision at the end once the agreement has been approved to put in place all of the steps that they need to do to give effect to that agreement and they do that relatively quickly and they do that before the appeal period expires. And what they say in their material is that in effect they could have put a stop gap in place but they chose just to press full steam ahead. That is the decision that they made and they don't suffer any prejudice from that because Mr Hart makes his appeal within time. So even if the AMIEU had appealed on the 21st day, Coles still would have been in the same position as it was because they had already put their systems in place.
PN317
So the fact that it's another 43 days, on my calculations, before the AMIEU seeks leave to appeal, it makes no difference to Coles because well before that, well before the period of leave expired, they'd already started their system changes. So in my submission they can't come along now and say that they suffered prejudice because they have their systems in place. It was a choice that they made.
PN318
The SDA says that in respect of the question of prejudice it says that, "The members of the union", this is paragraph 10 of my learned friend's submissions, "the members of the union will potentially be disadvantaged if the appeal were allowed to proceed and were, contrary to the submissions made above, successful. In that case significant wage rises will be found to have been paid wrongly and the employees will be subject to the possibility that money be recouped by the employer".
PN319
In my submission, your Honour, it's a circular argument. What the SDA say is, we got it right the first time so if you look at this again and find that we were wrong that people are going to be worse off because it should just have been left the first time, it's a nonsensical argument. If Mr Hart and the union are correct that workers are worse off under this agreement then it will go back to another process and it seems there's for the SDA to say that their members would be prejudiced by being told that they were worse off under the agreement than under the award, in my submission, your Honours, it just doesn't apply.
PN320
VICE PRESIDENT WATSON: I know we're not dealing with the appeal as such but do you say that the errors that you say exist are curable by way of further undertakings?
PN321
MR MULLER: They might be. But that's a matter that should be considered and it's a matter that the members should be informed of and able to make a decision about.
PN322
COMMISSIONER ROE: The members don't make the decision about undertakings.
PN323
MR MULLER: Yes. Yes.
PN324
VICE PRESIDENT WATSON: They do according to Appeal J4.
PN325
COMMISSIONER ROE: The members don't make a decision about undertakings. The question that Vice President Watson asked you is whether you believe, as a bargaining representative, because you would be consulted about the undertakings, that the problems that you see are curable by undertakings.
PN326
MR MULLER: It may be, Commissioner, it may be. But it also may be that the agreement becomes so substantially different to what was voted on because of undertakings that it wasn't genuinely approved of by the memberships and so that would be something that had to go back into the - - -
PN327
VICE PRESIDENT WATSON: But then if that occurred, and I know we're talking hypothetically here but if that occurred then isn't the submission correct that employees could be faced with a situation where they've been paid wage increases which as has been submitted, might be then the employer might then seek to recover those increases during the period when there's bargaining for a new agreement, if the current agreement is a nullity?
PN328
MR MULLER: In my submission, Commissioner, the agreement at the moment has effect and is in force and so the short answer to that is, no they wouldn't be because what they've been paid under this agreement is what they've been entitled to under this agreement. What happens in the bargaining process if that were to reoccur is obviously something for the parties to negotiate through.
PN329
VICE PRESIDENT WATSON: Yes. But I think the point that's being made and I'm asking you to explain, is that and I think this is what the submission of the other side was, is that if the Appeal Bench decided that the problems couldn't be rectified by undertaking and therefore that the agreement was not approved, then the agreement wouldn't have applied. Is that correct?
PN330
MR MULLER: No. In my submission, your Honour, they'd still get the benefit of the agreement up until that point. But my submission is that that can't be to the detriment of other workers. So moving forward would be the question of what's the appropriate form of the agreement or what's the appropriate undertakings to ensure that the BOOT test is passed. So it's a prospective view, not a retrospective view.
PN331
VICE PRESIDENT WATSON: But there's two radically different scenarios possible for that submission. If you were granted an extension of time and you got permission to appeal and the appeal process took place, one scenario is that additional evidence is heard and the Full Bench may form the view that further undertakings should be given. And that would mean that at no time is the agreement quashed. It would simply be approved on an alternative basis as a result of the appeal proceedings.
PN332
If on the other hand you made the submission that only changes that would substantially alter the agreement can be made, therefore that can't be done through undertakings, the whole process must recommence, then the consequence of that submission if it were accepted would be the appeal is allowed, the agreement is quashed and the parties really sent back to stage 1 of the entire process again and that presumably would take a significant period before any agreement is then reached again with a significant chopping and changing of obligations as a result of that process.
PN333
So I am interested in what the AMIEU says about the prospects of the concerns that it wishes to advance being dealt with as a result of appeal proceedings.
PN334
MR MULLER: Vice President, I'll need to take some further instructions about that and come back to you if I may.
PN335
VICE PRESIDENT WATSON: Yes.
PN336
MR MULLER: But can I say that the point that you made I agree with but the question about whether it can be dealt with by further undertakings or whether it needs to go back for wholesale review is precisely why the Full Bench should look at this. But it's not clear at the moment as to which it could be or should be and that's why this appeal, in my submission, should be heard. And the second thing that picks up on that is that there's no evidence or suggestions from Coles that they're going to cut wages in the meantime. So there's no suggestion that workers will be in a different position should this appeal be allowed and go to a substantive hearing.
PN337
VICE PRESIDENT WATSON: I think there's some onus on your client. You are seeking the indulgence of the Commission to lodge an appeal quite late and if successful in the appeal there could be significant practical consequences. And the question as to ultimately where that might lead and how the difficulties you wish to advance can be resolved would appear to be certainly a relevant consideration.
PN338
MR MULLER: In the form 18 that was prepared by Mr Smith and it's exhibit 1 to his affidavit, he does say that at point 5 he disagrees with one or more of the answers given to questions in the statutory declaration and then goes on to articulate in the next three paragraphs some of those concerns. And at the final paragraph before point 6 is he says, "The AMIEU believes that undertakings would be required from the employer before the Commission could be satisfied that the requirements of the section 186(2)(d) of the Fair Work Act 2009 had been met.
PN339
So Vice President, I'll take instructions to confirm that that is still the position but that was a position that was put.
PN340
VICE PRESIDENT WATSON: Yes, thank you. I'd appreciate that. Yes. I see what you've just quoted is at page 70 of the appeal book.
PN341
MR MULLER: Yes.
PN342
VICE PRESIDENT WATSON: Yes. But nevertheless, during the approval process the AMIEU also expressed concerns about the undertakings that were proposed by Coles, by Mr Gardner on behalf of Coles, and not being unreasonable to expect in those circumstances there'd be some views as to what might be required to address any remaining issues that the AMIEU had.
PN343
MR MULLER: Yes.
PN344
VICE PRESIDENT WATSON: And I note you're going to take instructions on that issue but I have to say it's rather surprising in circumstances where through the approval process the AMIEU expresses concerns, expresses concerns about the undertakings that are proposed and then sort of at this stage, still has no views as to how it's continuing concerns might be addressed.
PN345
MR MULLER: Well, it has set out that it wasn't happy with the former undertakings that were proposed and says alternate undertakings - - -
PN346
VICE PRESIDENT WATSON: Well, that's accepted. We understand that.
PN347
MR MULLER: And I'll seek further instructions. Unless the Commissioner has any further questions they are to be my submissions on the leave for an extension of time. As the Commission pleases.
PN348
VICE PRESIDENT WATSON: Yes. Thank you, Mr Muller. Mr Wood?
PN349
MR WOOD: If it's convenient for the tribunal perhaps I can start with the question of abuse of process because the points we make in relation to that are relevant also to the question of permission and it will save repeating the same points twice. In relation to the abuse point we have made submissions which have been marked as F4 and we obviously rely upon them and we wish to make a couple of additional points by way of expansion of those submissions.
PN350
It's understood that Mr Hart was an employee of Coles. He was a member of the SDA at the time of the filing of the application. He was not a bargaining representative and he didn't appoint anyone to be his bargaining representative. His bargaining representative was therefore the SDA and that was confirmed in answers by my learned friend, Ms Kelly, in the question from the Vice President.
PN351
The so-called representative, Mr Cullinan, is apparently here in a personal capacity on Tuesday. Presumably he's taken some leave from the NTU today. He is a senior industrial officer from the NTU. And he apparently I think my learned friend has taken some annual leave to be here in his personal capacity. He is not an employee of Coles and not a bargaining representative.
PN352
The negotiations as the tribunal is well aware, went for almost a year from April to December 2014 and you will recall that Mr Hart was employed for almost that entire time. He started to be employed, I think, on 2 May 2014, but anyway, it's May 2014, right through to now and he remains employed. There were, of course, six bargaining representatives at the time of approval when the application was made a year later in May 2015, including two individual bargaining representatives and you'll see their names on the correspondence from Commissioner Bull to the parties during that period from 18 May 2015 to when the agreement was finally approved on 10 July 2015 for those two months.
PN353
Mr Hart didn't get involved in the negotiations for the 2014 agreement and although he, as the Vice President pointed out, campaigned for a no vote between February and April 2015, at no stage during the approval process, that is from 18 May to 10 July, did he seek to get involved, including - and this is a question that the Vice President asked my learned friend, he said, "Why didn't he get involved in the approval process", and my learned friend said, "Well, he didn't know until 24 May 2015". The question was about, "Well, do you accept that evidence?" But let's take it at its highest. Assuming he didn't know that there were problems with the agreement on his own case till 24 May 2015, that's still six weeks till the actual approval of the agreement on 10 July, and he did nothing.
PN354
He admits and this is all in his witness statement which has been marked K1, at paragraphs 24 to 23. He knew negotiations were taking place in 2014. He knew the AMIEU was seeking protected action ballot orders. He had discussions with his work colleagues in relation to submitting a log of claims for trolley collectors. He campaigned for a no vote as the Vice President point out. And he knew about the approval process and in fact contacted Mr Cullinan about it. It's all set out at paragraphs 24 to 40 of exhibit K1.
PN355
Notwithstanding that, he never sought to appoint himself or anyone else as a bargaining representative. He never sought to be heard before the Commission on whether the 2014 agreement ought be approved. He had no interest in participating in the negotiations for approval process.
PN356
So that's the first main point we make and I think it's obvious but he was not involved in any way in the negotiations for approval process of the 24 agreement, notwithstanding that that process stretched for about 15 months from the start of the negotiations in April 2014 to the final approval on 10 July 2015.
PN357
VICE PRESIDENT WATSON: Is there any precedent for a Full Bench denying permission to appeal in those circumstances where a person affected seeks to appeal against the approval of an agreement having not been involved as a bargaining representative or in the approval process?
PN358
MR WOOD: We couldn't find any, Vice President, but the point we make is that it must be a factor and it's one of the main factors on permission that a person who is not involved previously, it must be a factor that can be taken into account on permission. We raise it here on abuse, obviously but it's one of the six factors we rely upon on, on permission. But we haven't found any authority on that point directly.
PN359
The second point we make on abuse is the flipside of the fact that Mr Hart was not involved and that Mr Cullinan was intimately involved. He made submissions in his personal capacity to the effect that in his view the 2014 agreement didn't pass the BOOT. This is in Mr Gardner's statement, exhibit F1, paragraph 8. He tweeted twice in relation to the agreement that he didn't think that the agreement passed the BOOT and he was involved with the media and by communicating with Commissioner Bull, his view that the agreement didn't pass the BOOT.
PN360
Thirdly, and relevantly to the abuse, it was Mr Cullinan who initiated contact with Mr Hart about appealing the decision. You will recall that on 24 May Mr Hart contacted Mr Cullinan. This is the answer of Ms Kelly going to the Vice President about when he first knew, on his case, that there were allegedly problems with the BOOT. He contacted Mr Cullinan about an article that Mr Cullinan had written in the Sydney Morning Herald.
PN361
Then the decision to approve was made on Friday 10 July, and then Sunday 12 July there were further Facebook messages and these are in the evidence in Mr Cullinan's statement, exhibit K5. Mr Cullinan asked Mr Hart whether he was still an ongoing employee at Coles and Mr Hart then sought Mr Cullinan's permission not to seek to appeal but to interview Mr Cullinan for an article in the Red Flag. After this request to interview Mr Cullinan, Mr Cullinan wrote the following Facebook messages at one o'clock on Sunday 12 July. "I'm thinking about whether an appeal is worthwhile. It would need a Coles' staff member to be the applicant, I think". This is page 2 of exhibit JJ8 which has been marked "exhibit K5" in Mr that is Mr Cullinan's further statement.
PN362
Later that day at 3.43, about a quarter to four, Mr Hart responded to Mr Cullinan by way of email, setting out details of his weekly roster and then stating, "And as for the appeal, I would love to be on board". Now those two statements taken together suggest that this is not Mr Hart's appeal. This is Mr Cullinan's appeal that Mr Hart is getting "on board" with, that it was something that Mr Cullinan was thinking about whether or not to bring and whether or not it was worthwhile.
PN363
Then a couple of weeks later on 24 July at 9.47 Mr Cullinan wrote to Mr Hart, "I am preparing all this for the case and keep confidential now". And then Mr Cullinan sent a message to Mr Hart, "Yes, I think a proper assessment requires all 750 plus stores. That will send Coles off the deep end, so to give us our best shot we need to keep our noses clean for now".
PN364
Now true it is that Mr Hart and Mr Cullinan agree with everything I've pointed out and they give some additional evidence which the tribunal might think just tips the case over the other line on the abuse point. You might say, well, there's something fishy about this but it doesn't quite rise to the height of an abuse. But those three factors that we have referred to on the question of abuse are very important on the question of permission to appeal, we would say. Unless there's any questions on that, a lot of this is in our written submissions so I don't want to read out our written submissions.
PN365
But in relation to the permission to appeal we make the following points and this is the first one, I think, is very important, is none of the six bargaining representatives, that is the four industrial unions and the two individuals, instigated this appeal. True it is the AMIEU has come a long way, six, seven weeks after Mr Hart instigated the appeal, to try to do what it's doing. But none of the bargaining representatives instigated this appeal. It was instigated by Mr Hart. If the tribunal is against us on our abuse submissions, if the tribunal finds that Mr Hart is in fact the true appellant and Mr Cullinan is not, the appeal was instigated by Mr Hart, not by any of the six bargaining representatives.
PN366
VICE PRESIDENT WATSON: Yes, but that wouldn't be unusual, would it? If the bargaining representatives had agreed and supported the approval of the agreement, a person aggrieved could be another entity altogether.
PN367
MR WOOD: Absolutely. Yes, there's no - - -
PN368
VICE PRESIDENT WATSON: That in itself is the fact that the bargaining representatives didn't appeal is not that unusual or significant, is it?
PN369
MR WOOD: Not by itself, no, it wouldn't be, Vice President, and that factor by itself and there's six factors that I'll take you to in relation to permission - our permission submission have been marked as exhibit F5 and we rely upon those and I've just mentioned one of them, and by itself, no. If that was the only factor we were relying upon, well, we wouldn't be here asking for the tribunal to exercise its discretion against Mr Hart. But we obviously have to take each of the factors together and as a group we say they indicate that permission ought not be granted.
PN370
The second, and related to what we said about abuse, is that none of the things that were done up to the approval on 10 July, were done by Mr Hart. That is, he wasn't involved in any way in the proceedings that led to the decision and none of the issues raised in his notional appeal or his true appeal, depending which way the Commission finds in relation to abuse, were raised by him below.
PN371
Thirdly, and this is important in terms of the overall factors, it was and it is Mr Cullinan who raised the issues before Commissioner Bull that Mr Hart seeks to rely upon for the purposes of prosecuting this appeal, including somewhat bizarrely and again it might be further evidence of the abuse, running procedural justice points when he didn't even seek to be heard below.
PN372
You've got a situation where someone not heard below says in the appeal grounds, procedural justice was not granted to Mr Cullinan, who doesn't appeal. And the reason Mr Cullinan doesn't appeal, of course, he's got no standing. And it's a quite odd situation that Mr Hart wasn't involved. Mr Cullinan was involved, but Mr Hart seems to be agitating issues on behalf of Mr Cullinan, presumably, of course, because Mr Cullinan doesn't have the standing.
PN373
Fourthly, and this is very important, we would say, the appeal raises issues which were not raised by any of the bargaining representatives before the Commission at first instance. The process that Commissioner Bull went through, and we can go through it in short compass, was that each of the bargaining representatives were notified, each of them put in material, the Commission had regard to that material. It resolved three main issues. I'll leave aside some procedural issues but three main issues that the AMIEU had. It said that the casual rate was too low at 20 per cent. An undertaking was given to raise it to 25 per cent. It said for 17 year olds in 2015 that the penalty rate of 50 per cent was too low and it should be raised to 60 per cent. And in relation to the 17 year olds for 2015, the argument was that the penalty rates were 67 and a half per cent, should be raised to 70 per cent. And I'll just check those figures because I'm doing this off my memory. Apparently it's correct. The 67 and a half per cent should be raised to 70 per cent and undertakings were given. And that resolved the issue. There were no further specific issues raised by anyone once those undertakings were raised.
PN374
True it is, as the Deputy President has pointed out in questions to my learned friend representing the AMIEU that there was one final email from Mr Smith of the union which was just before the approval and when one looks at that email which is at page 114, this is 23 June, Mr Smith says, "Just for clarity, we raised" 114 of the appeal book, "we raised issue with all the limitations proposed by Coles", and we're not suggesting the Commissioner's original correspondence. "These went to classes of employees as to whom the undertaking was directed, as well as practical matters for utilising the review process. Our issues are not limited to the one undertaking". That was it. So there's nothing further specific raised on the correspondence about the undertakings and the issues that the AMIEU had raised as to casual 17 year olds and 18 year olds had been resolved, so - - -
PN375
COMMISSIONER ROE: Is that completely correct, Mr Wood? I mean, you've got in the F18, the AMIEU example did show some small detriment in respect of employees other than casuals and part time, and secondly, that correspondence of the 23 June that you've taken us to on page 114 of the appeal book. I mean, if you read that very short correspondence, if you read it in context it's pretty clear what it's saying about the concern that they have about the third undertaking which is the reconciliation undertaking.
PN376
MR WOOD: That's what it's directed at.
PN377
COMMISSIONER ROE: Yes.
PN378
MR WOOD: It's not directed at any of the substantive the increases that are sought for the casuals and the part timers because that had been resolved in a form acceptable to the AMIEU. It's really dealing with what you might call the fourth undertaking which is the reconciliation undertaking.
PN379
COMMISSIONER ROE: Yes, it's about the reconciliation's undertaking, yes.
PN380
MR WOOD: Yes. It's not about the Mr Smith didn't come and say, as Mr Cullinan now says and Mr Cullinan sorry, I should say, as Mr Hart now says, that there was some problem with the adults and there should be some formal undertaking given in relation to the adults.
PN381
COMMISSIONER ROE: Sorry, I think that that's the question I'm raising.
PN382
MR WOOD: I'm sorry.
PN383
COMMISSIONER ROE: It seems to me that the undertaking in the form that Commissioner Bull suggested it initially, was an undertaking that was broader than just the issue of casuals and part-timers and that that was an undertaking that was presumably designed to deal with any other residual problems with the better off overall test in respect of part-timers, juniors and adults.
PN384
MR WOOD: I don't think that's a fair characterisation of the correspondence in response by Mr Smith. Mr Smith's correspondence when you read it as a whole wasn't concerned specifically with the issues that are now raised by Mr Hart, on our submission.
PN385
COMMISSIONER ROE: Yes.
PN386
VICE PRESIDENT WATSON: Mr Wood, the point you're making is only true in a narrow sense, isn't it? You say that particular problems that are now sought to be agitated in the appeal were not raised specifically as problems before the Commissioner. But in terms of issues, the issue before the Commissioner was whether the agreement passed the better off overall test.
PN387
MR WOOD: That's true.
PN388
VICE PRESIDENT WATSON: And at its highest, as I understand it, Mr Hart's case is that the agreement doesn't, and it doesn't in relation to 40 per cent of employees at Benalla and two thirds of employees at Northcote. That issue and that allegation is highly relevant to the issue that was before the Commission, in a broad sense.
PN389
MR WOOD: In the broadest possible sense, yes, but in a way in which obviously those facts were not but I'll come to that because that's our next point on permission, but in relation to the particular issues we would say they weren't before the tribunal though, of course, the question of whether it passed the BOOT had to be before the tribunal. I don't think I could answer it any other way but as a question of whether you should allow a person to bring specific complaints, not generalised ones, but specific complaints about the way in which the Commissioner went about his task when the Commissioner was not given the opportunity to deal with them, and nor were Coles.
PN390
I mean, Coles or the SDA weren't copied into any of this correspondence from Mr Cullinan. Is it fair to say that these particular issues as opposed to the general issue of the BOOT was really before the tribunal in a way that it would be fair to re-agitate these things on appeal or agitate them for the first time? And that's really, we would say, a very important factor in circumstances where they weren't related, of course, to our next point, the fifth point we make, which is the one you've just identified, Vice President. That is, there might be some less force in our submissions if the question for the appeal was limited to the things that were truly before the Commissioner. That is, the BOOT, either narrowly or more broadly, and the evidence upon which the Commissioner moved. But what we have now is an attempt to introduce new evidence, all of which was available before to be put in before the Commissioner and we accept exactly what Commissioner Roe says about whether you need the evidence or not because it's really a matter of just assessing the agreement against the award. But the combination of the fact that the particular points about the failure to comply with the BOOT were not before the Commissioner and the evidence which is now sought to be used to agitate these points was not before the Commissioner, are very powerful considerations.
PN391
VICE PRESIDENT WATSON: Can you remind me what you say about the regard placed by the Commissioner on the communications of Mr Cullinan?
PN392
MR WOOD: He didn't have any regard to them and he wasn't obliged to have any regard to them. It's plain that he didn't.
PN393
VICE PRESIDENT WATSON: But you say there was no opportunity for him to deal with these issues.
PN394
MR WOOD: No, I'm saying that those there are issues and issues, if you like. There are the issues the bargaining representatives put before him. There are the issues that Mr Cullinan put before him and then taking what Commissioner Roe said in argument, there are the other issues that the Commission might work out for itself when it does its own analysis.
PN395
In relation to those three sets of issues, for the purposes of an appeal it's not right to say that those for this appeal, it's not right to say that those Cullinan issues were before the tribunal because they weren't taken into account and because Mr Cullinan was a stranger, they weren't obliged to be taken into account.
PN396
VICE PRESIDENT WATSON: But they could have been taken into account.
PN397
MR WOOD: They could have been. They could have been.
PN398
VICE PRESIDENT WATSON: And if there were concerns or it there was some potential for concerns from a stranger to the agreement to express to the Commission, the Commissioner could have provided copies of that communications to the parties and asked for their comments.
PN399
MR WOOD: He could have.
PN400
VICE PRESIDENT WATSON: And thereby have regard to the matters that were communicated to his chambers.
PN401
MR WOOD: He could have. And he could also do what he did, which was have regard to the issues that were raised by the non strangers, send the matter off to the Commission's internal using the Commission's own internal processes to work out whether it met the BOOT, have regard to that and then write back to the real parties asking them to address those concerns which mirrored the AMIEU's concerns.
PN402
VICE PRESIDENT WATSON: I understand you say that he didn't do that.
PN403
MR WOOD: He did do that in relation to the AMIEU's concerns but not in relation to Mr Cullinan's.
PN404
VICE PRESIDENT WATSON: No. But how can you then say that there are issues now sought to be ventilated that in respect of which the Commissioner was not given an opportunity to address them?
PN405
MR WOOD: Well, we - - -
PN406
VICE PRESIDENT WATSON: He was given an opportunity but he chose not to follow the course that was open to him.
PN407
MR WOOD: What I said was that the issues were not raised by any of the bargaining representatives before the Commission. The issues were raised by a stranger and that because they were raised by a stranger the tribunal was not obliged to take them into account and did not take them into account and did not provide them to the parties, didn't ask the parties for their comment on the views of the stranger.
PN408
Now for the purposes of assessing now as an Appeal Bench, what was before the tribunal, we would say that those matters were not properly before the tribunal, for the reasons we've just given. Now you might say, well, they ought to have been considered and they were before the tribunal but our submission is that they weren't properly before the tribunal in a way that would allow another person to then come and piggyback on them.
PN409
VICE PRESIDENT WATSON: I can understand you saying they were not considered by the Commissioner and therefore they were not before him but it's the way you put it, that he didn't have an opportunity to deal with them, is the wording that I question.
PN410
MR WOOD: He did have an opportunity to deal with he could have taken them into account and he didn't take them into account. The basic point we're trying to make here is my learned friend said, and rather gave the game away, when she said very casually - when she referred to the new evidence she said, "You should take another look", she said. "The Appeal Bench should take another look". But that's not the function of an Appeal Bench. An Appeal Bench is there to correct error and to correct error, you need to work out what was truly below. And what we are saying is that for the purpose of correcting error and having regard to the record below, you don't have regard to what any member of the public might send in to the tribunal during the process that it engages in, in working out whether to approve the agreement. If we are - - -
PN411
VICE PRESIDENT WATSON: This argument has come up many times in relation to jurisdictional arguments. Jurisdictional arguments are raised on appeal that weren't raised at the Commission in the first instance and there's many Appeal Benches have expressed some reluctance to consider those matters in those circumstances but plenty of Appeal Benches have found it appropriate to grant permission and even to uphold appeals where a jurisdictional flaw is identified in the appeal proceedings. And perhaps directly or by analogy that's the situation we have here. What is alleged is that a significant aspect of the test relevant to the approval process was wrongly decided below and an employee is seeking to produce further evidence to make good the contention that an error was made in relation to that quite important aspect of the approval test. That's really the analogy.
PN412
MR WOOD: But it's not an error in that regard to get to the decision that you find on the basis of the evidence before you. That's the point we put in our submission - - -
PN413
VICE PRESIDENT WATSON: No, it's at the preliminary stage but it is where an allegation is made of a detriment to a significant proportion of employees and where you make the concession that there's an arguable case of error, which is usually one of the grounds for granting permission.
PN414
MR WOOD: Because we say that whether or not an error was made, the tribunal ought not allow in the peculiar circumstances of this case, this applicant who was not involved below to piggyback on a stranger's submissions and then use fresh evidence upon appeal to make good the appeal. Now that's why we say it doesn't matter whether or not there was error below, you shouldn't countenance in terms of the workability and practicability of the system, that sort of behaviour.
PN415
COMMISSIONER ROE: But what was before the Commissioner was fairly and squarely the issue of, does the agreement pass the BOOT. That was clearly before and - - -
PN416
MR WOOD: That's true.
PN417
COMMISSIONER ROE: And the Commissioner had material before him to assist him in assessing that but fundamentally the Commissioner had to assess the BOOT. And isn't it correct that under the agreement employees who are casual employees or part-time employees could be rostered to work their working hours exclusively on weekends?
PN418
MR WOOD: But that's been fixed by the undertaking. There's no issue, nothing's been raised about that.
PN419
COMMISSIONER ROE: No, but I'm raising that.
PN420
MR WOOD: Yes. I'm sorry.
PN421
COMMISSIONER ROE: Yes. So I'm saying that on the face of the agreement, isn't it correct that an employee who is a part-time employee or an employee who's a casual employee, could be rostered to work purely on the weekends?
PN422
MR WOOD: There doesn't seem to be anything in the agreement other than the normal consultation clause and those sorts of things that would prevent that from happening.
PN423
COMMISSIONER ROE: Exactly. And if that were to occur, if somebody was to work as a casual or a part-time employee exclusively on the weekends it's obvious, isn't it, that the BOOT would not be met?
PN424
MR WOOD: No, it's not at all obvious, Commissioner, in our respectful submission, because that issue has not been determined, that particular issue that you raise. Undertakings were given in relation to casuals and no assessment has been made of the other benefits that are available and also whether or not - - -
PN425
COMMISSIONER ROE: I accept that point, yes.
PN426
MR WOOD: And also whether or not, as you indicated to my learned friend, whether you said the assumptions have to be reasonable whether that's a reasonable assumption and whether or not it is representative of what has happened or what might happen.
PN427
COMMISSIONER ROE: Does it have to be that?
PN428
MR WOOD: Sorry?
PN429
COMMISSIONER ROE: Does it have to be representative that - - -
PN430
MR WOOD: Well, I think he said "reasonable" but I'm using another phrase that might be a euphemism for "reasonable". But the point that we're making is not whether the proposition you put might not be correct, merely whether someone can come along who wasn't involved, piggyback on what a stranger's done and make submission that are more specific, more precise, in order to show that a different decision ought have been reached on new evidence.
PN431
Normally one doesn't allow, and of course the Vice President's right, sometimes there are exceptions to this but normally one doesn't allow new grounds of appeal and new evidence upon appeal because the process requires you to do these things at the first instance so the Commissioner can have regard to what is put so that the other bargaining representatives can deal with what is put including by giving undertakings or educing additional evidence. And you don't normally allow, even if you're of the view yourself that you would have come to a different decision, don't normally allow the permission to appeal to be given. Now we pointed out five areas of the law in which exactly the same scenario prevails, that you can be sometimes prevented from amending your pleadings in a court, even though you've got a perfectly adequate defence that might allow you to win the case. You might not get special leave to the High Court even though you've got a perfectly good case.
PN432
You might have evidence excluded even though that evidence would allow you to win the case. And we put in a quote from Sir Owen Dixon where he said, "I don't have anything to do with justice. I sit on a Court of Appeal where none of the facts are known. One third of the facts are excluded by normal frailty and memory, one third by the negligence of the profession, and the remaining third by the archaic laws of evidence.
PN433
But fourthly, we talk about the judicial review applications including judicial review from this tribunal where the tribunal can wrong within jurisdiction and the court can't fix it. And fifthly, we talk about limitation of actions legislation where you might have a perfectly good case but you're out of time.
PN434
And the point that we make by analogy is that it might be that this tribunal on different evidence, approaching it in a different way, asking additional questions having regard to the material that Mr Cullinan put in, may well have come to a different decision. We accept that. In one sense, we have to accept it.
PN435
VICE PRESIDENT WATSON: It may have required additional undertakings.
PN436
MR WOOD: It may have done all those things. All those things may have been needed by this tribunal approaching it in a different way but there's no the point we make, there's no, if you like, right or wrong answer in the abstract. There's only an answer which is given on the basis of the evidence before the tribunal and the submissions that are made. And that answer might be different depending upon three things who constitutes the tribunal, what the submissions are and what the evidence is.
PN437
But my learned friend seems to assume the truth is out there somewhere and there is a truth, and the ultimate search for truth must trump everything else. But that's why she said you should take another look. But that's not what an Appeal Bench does. Even when there is a decision that you don't agree with and even when it's a decision that might have been different on different submissions and different evidence, that is not a basis for overturning a decision below because you just don't take another look. You're not starting afresh here and you're not free, in our submission, subject of course to what the Vice President said that there are exceptions but you're not free to allow people to meander off and run new cases on new evidence on appeal.
PN438
And that brings us to our last point on permission which is the prejudice. The prejudice to Coles is set out in the witness statement which has been marked as F3 from Ms Lembovski. But there's also another detriment here that's very important and Commissioner Roe is alive to this detriment, that this agreement represents an increase on the 2011 agreement which had relevantly similar penalty rate structures but lower rates of pay. So everyone who is almost everyone who is covered by this agreement sorry, I beg your pardon, everyone, everyone who is covered by this agreement obtains better terms and conditions than if they went back to the 2011 agreement. Or as my learned friend, Mr Felman, reminds me for the 3000 or so out of the 77,000 who are represented by the AMIEU, if they go back to the meat agreements. Everyone's better off under the 2014 agreement as compared to the 2011 agreement which they would go back to.
PN439
Now it's a very important factor to take into account, to take into account not only the point that was the subject of conversation between the representatives of the AMIEU and the Vice President and Commissioner Roe, that is, would there be a requirement for employees to back pay the money that they have earnt since the approval on 10 July, but also for going forward, that they would go back to the 2011 agreement or the meat agreement.
PN440
Related to that, of course, is the fact that the agreement process for the new agreement, the negotiations will start next year and one is talking about upsetting an industrial arrangement which is obviously very broadly supported. The AWU are not here appealing. The TWU haven't appealed. The SDA didn't appeal. All of them supported the agreement. And there's one person, apparently one person, who wants to bring this appeal which the AMEIU have then somewhat opportunistically jumped upon.
PN441
That question of detriment, we say, is a very important factor on the question of permission.
PN442
VICE PRESIDENT WATSON: Would there be less detriment if the Bench embarked on the process of assessing evidence and if there was a problem, seeking further undertaking, as part of hearing and determining the appeal, compared to allowing the appeal, quashing the agreement and sending the parties off again?
PN443
MR WOOD: There may be but of course we've got to remember, ground 4 of the AMIEU appeal is that the undertakings that are accepted to date by the Commissioner were ones he ought not have accepted and the agreement should have been put out for another vote. So I think the question of the tribunal accepting further undertakings would run contrary to what the AMIEU have put as ground 4 of their appeal.
PN444
COMMISSIONER ROE: But we might not accept that.
PN445
MR WOOD: Sorry, Commissioner?
PN446
COMMISSIONER ROE: We might not accept that.
PN447
MR WOOD: You might not - - -
PN448
We're asking whether there would be less prejudice in the event that we adopted one course as opposed to the other in the event that an appeal was granted.
PN449
MR WOOD: You really don't know. You don't know whether necessarily Coles would be minded to give additional undertakings, whether it would go back to the 2/11 agreement to say, well, this is proving too hard, or some other process would be engaged in.
PN450
VICE PRESIDENT WATSON: It appears that, you know, we've got Mr Hart on the one hand with Mr Cullinan's support, and Coles on the other with their analysis at 40 paces. They want to bring forward their (indistinct) BOOT analysis and demonstrate that the agreement doesn't pass the BOOT. You wish to answer that and demonstrate that it does but there's been no engagement on those matters between you. It wouldn't be impossible either that there is some engagement, perhaps with Commissioner assistance, prior to the hearing of an appeal that sought to narrow the issues and see whether some clarity as to the facts can be ascertained and whether there's an agreed course of dealing with it.
PN451
These are all options available to us to provide for if we were persuaded to grant permission to appeal and you're making a point relating to the circumstances in which these matters now come up for appeal that one employee who was not involved shouldn't be able to piggyback on an analysis of a stranger to the agreement. I think that's a submission to that effect.
PN452
MR WOOD: On the basis of new grounds and new evidence, yes.
PN453
VICE PRESIDENT WATSON: Yes, on the basis of new material. On the other hand their submission is that a fundamental element of the approval process concerning a large number of employees may not have been satisfied and they say, prima face, is not satisfied and you make a concession in terms of that, as well, so that's really what we're dealing with.
PN454
MR WOOD: We say for the purposes of the asking the tribunal for the indulgence of hearing the permission questions separate from the appeal proper, which is unusual, that in order to save time we should make those concessions, concessions of course that the SDA, as it's entitled to do, doesn't make, and I think, doesn't make, quite forcefully and with some merit. But at the heart of that proposition you just advanced, Vice President, I think is a mistake in the assumption because the question is not whether the decision was right or wrong because that depends on the three factors that we indicated. It's a question of whether the satisfaction that was reached by Commissioner Bull could have properly been reached by him on the basis of the material before him and the arguments raised. That's the question, not whether that decision meets some objective standard of whether it's right or wrong.
PN455
VICE PRESIDENT WATSON: But we might not know that unless the further evidence that the parties are foreshadowing in the appeal is submitted and tested and evaluated.
PN456
MR WOOD: But that's our point. You can't receive the Appeal Bench can exercise a discretion but the orthodox position is you wouldn't receive that evidence which was available to be put in by Mr Hart that he wishes to put in now. These rosters, you wouldn't normally receive that. Now that's not to say that you wouldn't engage in the sort of process that Commissioner Roe engaged in and said, well, irrespective of receiving additional evidence I'll just look at this scenario, and in this scenario it doesn't pass the BOOT test.
PN457
That, in our respectful submission, doesn't constitute an error on the part of Commissioner Bull. It's not the way they're running the case, by the way, either but it doesn't constitute an error by Commissioner bull because the width of his satisfaction or the discretion that he is to exercise is based on the evidence and the material before him and he could have done it.
PN458
COMMISSIONER ROE: Can I just take up that point. We deal with, you know, hundreds, thousands of agreements but this is only my own personal case, I deal with hundreds of them. Sometimes there's no material, you know, because quite often there are agreements that don't involve unions so there's very little before us sometimes. And under the statute it's our job to look at the agreement, to look at the award and to weigh those things up together with some basic information that's provided in the F17 form and make an assessment about the BOOT. So we have a statutory responsibility, don't we, to decide is the BOOT met or isn't it met?
PN459
So in that sense it's a bit different from, for example, you know, like an unfair dismissal case where if someone who doesn't raise an argument, we can't make a decision on the basis of something that isn't before us, that isn't raised but in respect of an agreement matter, by its very nature we're often making decisions based on things that have not been raised by anybody.
PN460
MR WOOD: We would accept that, Commissioner. The only point that we would make is that different tribunal members acting on the same material might come to different conclusions both of which are not subject to any review because the question is whether they are satisfied, whether they've gone through a process of logical analysis of the material, to come to a view which is discretionary.
PN461
COMMISSIONER ROE: Yes.
PN462
MR WOOD: And both of which might not be subject to review, both of which might be wrong.
PN463
COMMISSIONER ROE: But isn't that a question of degree, Mr Wood?
PN464
MR WOOD: It is. It is because - - -
PN465
COMMISSIONER ROE: And of course that's right because it's a weighing exercise to one member could decide this meets the BOOT and another member could decide it doesn't and both those decisions could be correct because it's where it's a balancing exercise. But if we were able to show that for a particular class of employees they were 20 per cent worse off in monetary terms and the non-monetary benefits were fairly minor, then it wouldn't be open to the member to decide that (indistinct), would it?
PN466
MR WOOD: I think you are getting beyond the sort of area on those facts where you might be protected by the exercise of the discretion. There are circumstances and you may well be getting into them, Commissioner, where you could overturn a discretionary decision on that basis and it is a matter of degree.
PN467
VICE PRESIDENT WATSON: The statute requires attention to every employee, not the overall group and what's alleged here is against you, against the decision at first instance, that the analysis was really looked at in relation to some but not all of the employees and that if all employees were looked at there would have been demonstrated to be a detriment in certain respects which then had to be weighed against the benefits in other respects but that part of the analysis was not undertaken.
PN468
So that the allegation of error against the Commissioner is that the task wasn't properly fulfilled and whether that's true or not really depends on a more fulsome consideration of all of that evidence. You say that we shouldn't embark on that because of the way in which the matter now comes after the event. That's really your point.
PN469
MR WOOD: And we have to accept that, Vice President. That's partly the reason we've accepted that there is an arguable case of error but our point is, you could have in relation to an assessment of this, error after error after error because you could always do a better analysis. You will recall Mr Cullinan says in his email, we need an analysis of every 750 stores.
PN470
I mean, if this decision was made by the Commissioner again, perhaps on the basis that there's two new stores, there would be another appeal on the basis that, well, there was some additional evidence which showed that these additional employees were not taken into account. And our point is that there must be some finality to this and the way in which the system works is not to prove that the decision making was imperfect, because all decision-making is, in circumstances like this, but merely that it accorded with the norms of the process. That is, it was based on the evidence before the tribunal and had regard to the submission and resolved those concerns on the basis of the evidence and - - -
PN471
DEPUTY PRESIDENT KOVACIC: But I suppose the point that Commissioner Roe made, Mr Wood, is that in the circumstances of an agreement approval the Commission is not constrained to the evidence before it in terms of reaching a decision as to whether it's satisfied that the better off overall test is met. And in the context of these proceedings, in circumstances if it's made out that there are employees who are not better off overall as a result of the agreement, it raises a very serious issue for the Commission in the sense that because arguably what you're suggesting is that the Commission perhaps overlooks that. I'm not saying you put it in those terms but the practical effect might be that it would overlook that on the basis that, well, this wasn't evidence that it was before the Commission below.
PN472
MR WOOD: All I'm really saying is that every administrative tribunal in the country, whether it's this tribunal or some tribunal that gives out a fishing licence, will come to a different view if different evidence is before it and that that doesn't constitute error. And it's a small step from that to say if a different approach because Commissioner Roe's point is you don't need new evidence, you just need to look at a different area well, almost every tribunal will fall into error if that is - error and of course it's a matter of degree. I have to accept that.
PN473
I mean, there were some things that won't be error and some that will be but the question that led to all this was, from the Vice President is, well, what's the problem with having the we've heard what you've said about the stranger, we've heard what you said about someone new coming in, piggybacking, we've heard what you said about the new points, we've heard what you've said about new evidence, we've heard what you said about detriment, but is there really that much detriment because we can deal with this in a way that have conciliation and give some undertakings and the point we'd make in answer to that question is, this process has now been well, it started in March 2014, the negotiations for this agreement, it's now October 2015 and justice isn't a right that should be pursued at all costs. There has to be some appreciation of the rights of the other parties, 77,000 who are represented either directly or indirectly or not at all in this tribunal and they now have a settled industrial arrangement that was better than the previous arrangement. There's going to be new negotiations starting next year and is it right in these circumstances where none of the bargaining representatives sought to initiate this appeal to allow this process to continue on for another period in circumstances we've had a year of negotiations, we had industrial action throughout the country, we had a scope case, we then had three months of the process of explaining to employees and two months of an approval process, to allow it to continue on at the behest of Mr Hart?
PN474
Now that, we think, is a powerful consideration notwithstanding the point that we make and we accept that there might be an arguable error because in any system there's a balancing exercise between pursuing the substantive justice and also having regard to the effects that the pursuit of that justice might have on the norms of the system and the other users of the system.
PN475
And that's the main reason we ask for this case to be split because we thought that there might be some merit in the points that we make about the utility of this appeal but also facing up directly to the arguments that are put against us as to whether or not there might be an arguable error below. Of course, arguments my learned friend, Mr Friend, doesn't wish to concede.
PN476
Can I move to the AMIEU before - - -
PN477
VICE PRESIDENT WATSON: Well, we'll obviously need to sit after lunch. It's up to you whether you wish to address that matter after the luncheon break.
PN478
MR WOOD: We'll perhaps address it after lunch.
PN479
VICE PRESIDENT WATSON: Yes. We'll adjourn till 2 pm.
LUNCHEON ADJOURNMENT [12.57 PM]
RESUMED [2.02 PM]
PN480
VICE PRESIDENT WATSON: Mr Wood.
PN481
MR WOOD: I thank the tribunal. I was just finishing on our submissions on permission to appeal, and to further answer the Vice President's question about ways in which the matter could be dealt with in the future. Could I say that I've had the benefit of some instructions of the lunch break, and our client would prefer this to be dealt with in an orthodox manner, if permission is granted and our abuse submissions are rejected.
PN482
We're very unlikely to give additional undertakings above those that have been given with the practical consequence of course that if the applicant is successful, many perhaps over 95 per cent of the employees, will fall back to the 2011 agreement which has the same penalty structure as the 2014 agreement, pre-undertaking and lower wage rates.
PN483
Can I then move to the AMIEU submissions. I think our written submissions in response have been marked as F6. There's not a great deal I need to add to those by way of amplification, other than to note of course that the change in the AMIEU's approach came hard on the heels of a conference that was presided over by Deputy President Kovacic. And for the on our count, our learned friend, Mr Muller said 43 days, we think it's 45 days. So I beg your pardon? It's 46 days we now say.
PN484
Anyway, between six and seven weeks there was a failure to prosecute the appeal notwithstanding that there was a suggestion in the materials that the was, quote, "under active consideration", close quote. The AMIEU as an experienced industrial organisation, must be taken to know there was a time limit with which to lodge an appeal. If it truly wanted to support the Hart appeal, it could have done what it now has done, and lodge a notice of appeal at the time that the Hart appeal was lodged, that is within time.
PN485
It's important to recognise that approvals and applications for approval of enterprise agreements should be dealt with expeditiously section 170(1)(b)(iii) of the Act. And a delay of between six and seven weeks is obviously significant. In relation to the grounds 1 to 3, and 5 to 7, we make the same points that we make in relation to the Hart appeal. But in relation to ground 4, which was the subject of, I think, questions of my learned friend, Mr Muller, from each of the members of the bench, you will recall that ground 4 says the effect of the undertakings was that the agreement the Commission was asked to approve was not the same agreement that the employees were asked to vote on and, therefore, these employees did not genuinely approve it.
PN486
We're still waiting to hear from Mr Muller in response to the questions from the bench. So perhaps I won't address on that point any longer until I hear what my learned friend says, but for those reasons, and including any other reasons that we can develop in relation to ground 4, we say the Full Bench ought not exercise its discretion to extend time for the AMIEU to lodge its appeal. Unless, there's any questions further questions, I should say, from the bench, those are our submissions in relation to the three applications.
PN487
VICE PRESIDENT WATSON: Thank you, Mr Wood. Mr Friend.
PN488
MR FRIEND: My learned friend Mr Muller asked rhetorically, I think, why the SDA was here making the submissions it is. And I think what Mr Wood has said when he came back from lunch makes it clear. And I could add a further complication to that. I don't know the answer to this. I haven't had time to consider it. But it's by no means clear that the 2011 agreement will be revived if this decision is quashed. It's (indistinct) a good deal of thought given to that but it might be the award. I'm not making the submission that it is.
PN489
VICE PRESIDENT WATSON: Could it be an earlier agreement?
PN490
MR FRIEND: I beg your pardon?
PN491
VICE PRESIDENT WATSON: Could it be an earlier agreement?
PN492
MR FRIEND: Any earlier agreement would probably be subject to the same problems that might exist with the 2011 agreement. But it may be, your Honour. There may be changes between the Workplace Relations Act and the Fair Work Act about the non-revival of instruments.
PN493
VICE PRESIDENT WATSON: Yes. I think there's some provisions about non-revival haven't always existed, but anyway - - -
PN494
MR FRIEND: Yes. It's just a factor that goes into the mix in the exercise of discretion in this case. Now, I think that what I'm about to say was perhaps exposed during the latter part of Mr Wood's submission but I want to try and suggest the way that this matter must be approached properly. Because there seems to have been a view, perhaps on the part of the respective appellant that he could just come, dump a whole lot of material before the Full Bench and say, let's go and have a rehearing on the basis of that.
PN495
This is an appeal against an exercise of discretion. I will hand up Cole v Allied. I think we need to, just to go back to those first principles. It's an exercise of discretion. It's not a finding of jurisdictional fact. An exercise of discretion is not a finding fact. It's a question of the decision-maker being satisfied as to a range of matters. And if one looks at Cole v Allied where the court really comes to grips with this question in respect of a satisfaction issue in relation to termination of a bargaining view. At 19, I think it's all the judges of the court, apart from Kirby J, they say:
PN496
"Discretion" is a notion that "signifies a number of different legal concepts". In general terms, it refers to a decision-making process in which "no one consideration and no combination of considerations is necessarily determinative of the result." Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made.
PN497
And that's the position here because of course there would be no other way to approach this. There is no fact whether it passes the better-off overall test or not, because the application of that test inherently requires making value judgments and assessments about weighing benefits against detriments. That's the satisfaction point.
PN498
So once you get to that point you ask, well, how can you overturn the exercise of a discretion on appeal? And I forget the name of the case that my learned friend Ms Kelly referred to but it simply summarised the grounds in House v the King. And there of course they're set out by the High Court in 21. Wrong principle. Extraneous or irrelevant materials. Mistaken facts. Does not take into account some material consideration, determination should be reviewed.
PN499
Now, the one thing that hasn't happened during the course of today from the applicant is to look at Commissioner Bull's decision and point out anywhere he went wrong. And if you look at the decision and I'm not going to read it to the members of the Full Bench. I'm sure you've read it. But if you look at it, it's a perfectly acceptable and orthodox application of the principles to the matter before him. No one can point to a failure by the Commissioner to ask himself the right question or apply himself to reaching the state of satisfaction that he was required to reach.
PN500
Now, that's not necessarily the end of the matter. Well, I should say one thing. My learned friend, Ms Kelly, says, well, he didn't take into account a relevant consideration and she points to something that wasn't raised. But relevant consideration in this context doesn't mean anything that anyone might argue is relevant.
PN501
It's the same sort of question which is applied in administrative law, and if I will have to give you the reference because I haven't got the case. The way it was argued this morning was perhaps a little different to the submissions. Minister of Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR at 24. And there is an often-quoted passage by Mason J at 39.2 to 42.7. "Relevant consideration" means a consideration which the decision-maker is bound by the statute to take into account.
PN502
Bound to take into account by the statute. That will either be discerned from the words of the statute itself, or an understanding of the words in their context and the purpose of the statute. I'm paraphrasing it but that passage is where that principle is set out. In my submission, there has been no real success in identifying any such relevant consideration in the context of this case.
PN503
And one needs to approach this in this staged manner to ascertain whether or not permission should be granted. Not just say, "Here's a case. We think we're right. Hear it." All right. If we're correct about this and there's no demonstrable error in Commissioner Bull's decision, we accept that that's not necessarily the end of the matter. Ordinarily, an appeal court or a full bench such as this one, would only exercise its appellate powers if it found error. But the again, going to Coal and Allied, the court said there at 14:
PN504
Ordinarily, if there has been no further evidence admitted and if there has been no relevant change in the law, a court or tribunal entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was error on the part of the primary decision-maker.
PN505
So there is a potential circumstance where you this full bench could exercise appellate powers if it formed a different view, if further evidence were admitted. But the one thing we haven't had, and the appellant has been put on plenty of notice of this it's set out in my learned friends Mr Wood's and Mr Muller's submissions any sort of argument upon which this full bench could be persuaded that it will in all likelihood admit additional evidence.
PN506
There has been no attempt to apply the principles relevant to that question to this case. All that has happened is that Ms Kelly has come along and said, "Look, there's 50,000 people and they're all up to 20 per cent worse off." And we say the evidence that's there doesn't support that in any event. It's all exaggeration and supposition and assumption. But there's no if we're going to do this, approach this in a proper legal way on the basis of principle, you first ask is there error in the exercise of discretion.
PN507
It doesn't matter what the members of this bench would have done because that's irrelevant, if there's no error. Or if there's an attempt to introduce new evidence, should we receive it. But you haven't been assisted in any way on the question of should it be received, and in those circumstances - - -
PN508
VICE PRESIDENT WATSON: Has it been contended that the proper application of the BOOT required the Commissioner to look at all classes of employees and there were, for example, part-time employees who may under the agreement be rostered mostly on weekends where the rate is lower than the award, and that's not countered by the higher rate during the week?
PN509
MR FRIEND: Well - - -
PN510
VICE PRESIDENT WATSON: And this analysis was not undertaken.
PN511
MR FRIEND: Well, these things were drawn to the Commissioner's attention. If you look at the form 17 where it says "What are the detriments?" This is on page 34 of the appeal book. All those matters are set out.
PN512
VICE PRESIDENT WATSON: In a very general way.
PN513
MR FRIEND: Well, they are but the Commissioner then followed them through. One can't assume that he didn't take matters into account simply because they're not mentioned. And the other thing that has barely raised its head in the course of all of these proceedings is the question of the other aspects of the agreement which are more beneficial. And they're set out, I think just before page 17. And the list, as you can see, is a great deal longer than the list of detriments.
PN514
COMMISSIONER ROE: Well, I don't think the size of the list is really the relevant issue, is it?
PN515
MR FRIEND: The size of the list doesn't matter, Commissioner, but you're assuming you're being asked to assume that the Commissioner ignored the fact that it said, "Penalties are lower." Just above where it says, "Casual loading was lower", which he took on as an issue. And it's by no means clear that that's the case. Now, when dealing with this issue, my learned friend, Ms Keating, says I'm sorry, Kelly. I'm very sorry. Says at 35:
PN516
The approval application sets out the non-monetary conditions that are said to be more beneficial than those provided for under the reference instrument. For the reasons set out in the Cullinan statement at 31 to 36, there's nothing in non-pecuniary benefits contained in the agreement that could negate or counter-balance the negative wage income.
PN517
So then one goes to Mr Cullinan's statement at those paragraphs. It really commences the section commences at paragraph 31 under the heading, "Conditions not included in analysis". Not included in analysis. There are a number of conditions that are not built into the spreadsheet, and then he sets them out. At 35 and 36 he deals with another whole range of them.
PN518
He doesn't deal with all of them. But all he's saying there is not that they don't counter-balance these things or can't, on his analysis, but simply that he hasn't taken it into account at all on this analysis which supposedly proves that 50,000 people are 20 per cent worse off. This is all following a section beginning at paragraph 19 which says, "Assumptions". The spreadsheet analysis contains a number of assumptions. Each assumption reflects information not available to the appellant.
PN519
I'm not going to take the Full Bench through them but they're quite significant assumptions, and it was for that reason that we assumed that the reason for seeking Coles to produce all of their rosters, and other information, as to try and make good those assumptions or to work out what the true situation was, because Mr Cullinan doesn't know.
PN520
If one then looks at what was before Commissioner Bull and there's no mention of it in his decision, we accept that. That's behind tab 8 of the appeal book at page 80. It's clear also that the has made assumptions. One looks to the paragraph below, the three bullet points in the middle of the page.
PN521
In addition to the charts - - -
PN522
COMMISSIONER ROE: Which page are you on, sorry?
PN523
MR FRIEND: Page 80, Commissioner. Sorry.
PN524
COMMISSIONER ROE: Thank you.
PN525
MR FRIEND: It's tab 8 in my book but not in the Commission's, I'm, sorry.
PN526
COMMISSIONER ROE: That's all right.
PN527
MR FRIEND: But that paragraph below the three bullet points:
PN528
In addition to the charts an analysis of the rates impact on May 2015 rosters from the suburban Melbourne Coles department of 16 non-managerial staff, provides staffing results. Certain assumptions have to be made of age and casual status. Coles reports 65 per cent of staff are non-casual. For the 16 staff we allocated sis staff to casual status. The age estimate was done by colleagues and where they were entirely unknown, an adult wage was awarded. Three weeks were assumed to replicate throughout the year to annualised incomes.
PN529
This is not the sort of material that you can make a finding that it doesn't pass the better off overall test. This is assumption and speculation. If you apply the principles relevant to the admission of new evidence, you wouldn't let it in because it's not probative. We have dealt with in the written outline what we say about the grounds that are raised.
PN530
The only one that perhaps was put in a way different in the oral submissions today than in the written submissions I'm not sure, I'm not making a comment about that was this question about the explanation of the agreement. Again, you had the 50,000 who weren't told anything. We don't know what the evidence for that is or how it's ever going to be proved. I think your Honour, the Vice President, asked Ms Kelly what was the evidence for that, and the answer was non-responsive.
PN531
But what you do have in the form 17 is an enormous amount of detail about how this agreement was explained to employees by Coles. And perhaps at the end Ms Kelly was driven to the position of saying, well, it's because they didn't tell them, start it all over again when there were a few minor changes made towards the end. We would submit that that's just not a proposition that's tenable. We will never get agreements if that's the case, especially in organisations like this with 70,000 employees.
PN532
Now, so the submission we make is that permission should be denied because this appeal has not got sufficient prospect of success. And that the application that has been made, hasn't addressed one of the or two of the central questions. Whether there's error below, appellable error; we say no. And, secondly, whether the appellant could introduce swathes of new evidence. And in the absence of any of persuading the Commissioner that such evidence would be likely to be introduced, then the appeal is all the more hopeless.
PN533
Can I just deal with the AMIEU. I think I can do that in really two propositions. If the Commission is against me on all of that and Mr Hart gets to conduct his appeal, there's no need to give the AMIEU an extension of time because all of the issues will be agitated, all but one. And the one that won't be agitated is ground 4. That the undertakings changed the agreement and it should have been gone through another approval process.
PN534
Really, that proposition is startling, in my submission. It cannot be right, that an undertaking to increase payments means that it has all got to back through another two-month voting process. It's a nonsense. So if the same issues are raised, then there's no basis upon which the indulgence of such a long extension should be granted.
PN535
VICE PRESIDENT WATSON: If permission is granted there's no prejudice by allowing the extension or less prejudice.
PN536
MR FRIEND: Less prejudice. I accept that. I accept that. If Mr Hart isn't given permission, then there's more prejudice and the extension should be refused. Now, unless there's anything else I can assist the members of the bench with - - -
PN537
VICE PRESIDENT WATSON: Can I take you back, Mr Friend, to the submission that on the material before us there's no realistic prospects of success.
PN538
MR FRIEND: Yes.
PN539
VICE PRESIDENT WATSON: Included in the material is a statement from Mr Cullinan which is exhibit K4, and this is where he has some analysis of comparisons of employees working on particular rosters compared to the award.
PN540
MR FRIEND: I'm sorry, your Honour, I didn't mark them at the time. Is that his first statement?
PN541
VICE PRESIDENT WATSON: Yes. 25 September.
PN542
MR FRIEND: Yes. Yes. But that's all prefaced by assumptions.
PN543
VICE PRESIDENT WATSON: Well, if I just take an example. If you go to page 9 of the statement, towards the bottom of the page, the calculation of employee T is under the award, and there's assumptions as to what classification he would be and - - -
PN544
MR FRIEND: Yes. That's the difficulty.
PN545
VICE PRESIDENT WATSON: And but if the assumption is correct, the figure under the award is 167.76, or the particular ordinary hours. Sorry, under the agreement it's 167.
PN546
MR FRIEND: That's the agreement, yes.
PN547
VICE PRESIDENT WATSON: And under the award 195.
PN548
MR FRIEND: 185.
PN549
VICE PRESIDENT WATSON: 195.94, I think.
PN550
MR FRIEND: Sorry.
PN551
VICE PRESIDENT WATSON: For the two days, under this particular comparison. And then there's an aggregation of these things. Now, if the underlying assumptions are correct that's a question-mark, and there's that sort of difference for those particular hours, then it then becomes a question of, well, what are the positives.
PN552
MR FRIEND: Yes.
PN553
VICE PRESIDENT WATSON: And the balancing act, an overall judgment is needed to be made.
PN554
MR FRIEND: That's correct.
PN555
VICE PRESIDENT WATSON: But in the light of those sort of figures, albeit based on certain assumptions, how can we be satisfied that there are no prospects for success of the appeal on the proper application of the no disadvantage test?
PN556
MR FRIEND: Because you haven't you're looking at material that you can't necessarily be satisfied that you should admit.
PN557
VICE PRESIDENT WATSON: It may - - -
PN558
MR FRIEND: Because that hasn't been addressed.
PN559
VICE PRESIDENT WATSON: Well, all we can do is to say that the assumptions may be correct or they may be incorrect.
PN560
MR FRIEND: Well, they may. They may be either.
PN561
VICE PRESIDENT WATSON: That's the only approach we can adopt, is it not?
PN562
MR FRIEND: If you get to the point of admitting new evidence.
PN563
VICE PRESIDENT WATSON: Yes.
PN564
MR FRIEND: If you get to the point of admitting new evidence in all of the circumstances.
PN565
VICE PRESIDENT WATSON: It doesn't indicate where the answer will be.
PN566
MR FRIEND: No.
PN567
VICE PRESIDENT WATSON: But it does how can we, based on material which may involve correct assumptions and may give rise to certain detriments quantified in this manner, and then require a balance against all of the positives on the agreement.
PN568
MR FRIEND: The positives.
PN569
VICE PRESIDENT WATSON: How can we say now, based on the material before us and the approach we must adopt, that there's no or little prospects of success?
PN570
MR FRIEND: Well, again, your Honour, I come back to what I said. You've first got to be satisfied that you're going to admit this material and on what basis. We don't know how that's put. That's as far as I can take it.
PN571
VICE PRESIDENT WATSON: Yes. Thank you. Mr Muller, have you got some supplementary submissions?
PN572
MR MULLER: I have just a few short points both for supplementary and in reply.
PN573
VICE PRESIDENT WATSON: Yes.
PN574
MR MULLER: I might deal with all of them at once if that's convenient. The additional ground of appeal that the union agitates has been identified by my learned friends as paragraph 4 of the grounds of appeal. And that is that the Commission erred in approving the agreement by reason of the undertakings given by the respondents to the Commission, were such that the agreement that the employees were asked to approve was not the same agreement as that which was approved by the Commission.
PN575
With the effect that the employees who would be covered by the agreement did not genuinely approve it. The union brings that up because it's mindful of the recent decision of the Full Bench in the Australian Municipal Administrative Clerical and Services Union and TAB decision which is [2015] FWCFB 3545, that said if the to paraphrase that if the final form of the agreement is modified by undertakings to such a degree that it can't be construed as a genuine agreement by the members, then that might need to go back to the membership.
PN576
Now, to develop that, it's not to say, as seems to be suggested by my learned friends, that every time there's some sort of amendment the whole agreement needs to re-put back to the membership. My submission is it's in the nature of when we track-change a document and you send it to an opponent or someone who is reviewing it, they don't look at the rest of the document that's unchanged; they just look at the parts that are changed. That's the nature of what is being submitted should be put to the membership is - - -
PN577
COMMISSIONER ROE: That's not what the legislation says.
PN578
MR MULLER: Well, they - - -
PN579
COMMISSIONER ROE: It's completely contrary to the legislative scheme. The legislative scheme permits the Commission, after consulting the bargaining representatives, to approve an agreement with certain undertakings. And in terms of accepting the undertakings there's essentially two criteria that have to be considered.
PN580
One is, does it result in a significant change and I'm paraphrasing the words a significant change to the agreement. And the second one is the issue of financial detriment. Well, obviously in this case financial detriment is not going to be an issue when looking at any potential undertakings. So it's the significant change.
PN581
And that's what I'm saying what the legislation is saying is that, well, that's a matter for the Commission to determine. There's no process for undertakings or proposed undertakings to go back to employees. That's not part of the legislative scheme at all.
PN582
MR MULLER: I understand the way you've put that, Commissioner. The question becomes more is there is it such that there can be a genuine agreement, and I don't know that you can push it further than that. That's where the union sits on that. And then in terms of what the union's position is, the annexures GS3 and GS4 to Mr Smith's affidavit or statement, I should say, properly read show that he and the union had concerns with the present form of undertakings, that they imposed unreasonable requirements on their members.
PN583
That's the view that Mr Smith had. It doesn't shut the door that other forms of undertakings might be acceptable to the union. It doesn't however, it's not a position it's not something that they can say at this point to the tribunal, well, we would be satisfied with undertakings because the unions know what undertakings might be proposed or how that might be put. And so it might be that what the union says ultimately is that this agreement is not one that they're satisfied with.
PN584
And then it would be a question of what happens with from that step. And my learned friends say, well, 95 per cent of workers would be worse off if the 2014 agreement was set aside and everyone went back to the 2011 agreement. There's no evidence before the Commission of that. Similarly, there's no evidence before the Commission of what I'm about to say, which is that the Union's from the Union's position, if the 2014 agreement falls away and people have to go back to the award, then they're going to be better off than the positions being advanced by my client and by Mr Hart.
PN585
Can I just note two other points in reply. The disruption to Coles, that they put as a ground of prejudice, it's not a ground that could be relied on, in my submission, on the question of whether leave for an extension of time should be granted. Because the disruption only occurs if the final relief falls in my client's favour. That Coles would then have to undo what they have already done.
PN586
So it would only be if there was a hearing and it was an appeal granted and a hearing, and it was successful, that that disruption would amount to any form of prejudice. So it might be a prejudice at that point for them but it's not a prejudice, in my submission, at this point to say that they may face disruption in terms of when the tribunal assesses the prejudice or waives the prejudice for a leave for an extension of time. Similarly, it's not - - -
PN587
VICE PRESIDENT WATSON: Is it open to the bench to have regard to those circumstances if we granted permission and then heard and determined the appeal?
PN588
MR MULLER: I was about to add to that, that it's not prejudice to say that a party has to defend an action. The prejudice has to be something more than that. So in my submission, it's similar to where there's a statute of limitation that applies to a proceeding and there's an application to substitute in a new party or to change the existing party. That may well have had the benefit of the statute of limitations if it was issued against them in the first instance.
PN589
It's not enough just to say, well, we were prejudiced because we could have relied on the statute of limitations. The party has to point to other grounds of prejudice. So, in my submission, it's not enough here to say simply that the final relief may go against us, and that may cause disruption and that's a form of prejudice that should be addressed. That's to do with the ultimate relief that's given.
PN590
It would be different, in my submission, if what Coles were saying was that the mere granting of the leave for the extension of time, would cause them major disruption because they would have to undo something that they had already done. But that's not the case here. Nothing from their perspective changes while the appeal is on foot.
PN591
And a final point in reply is that there's a question about the material that was put before the Commission in the first instance and what the Commission had regard to. Coles say they concede that there is an arguable case about that. Mr Friend, on behalf of the SDA comes along and says, well, we don't make that concession. But he doesn't say in his submissions or in oral arguments that his client's position is that this agreement would have passed the BOOT. And, in my submission, it's an important omission, that the SDA is not positively saying this agreement would have passed the BOOT.
PN592
They say there's assumptions that you need to have regard to. True, they say that there was evidence before the Commission, true, but the bit that is missing is to say in our view we say it would have. If it pleases the court, they're the submissions on behalf of the Union.
PN593
VICE PRESIDENT WATSON: Thank you, Mr Muller. Ms Kelly.
PN594
MS KELLY: Thank you, Vice President. If I can deal first with a number of comments made by my learned friend, Mr Friend, and then come back to some of the submissions made by Coles. And I will deal with this, I hope in relatively short compass. The first is Mr Friend said that we had not undertaken the task of identifying the error by, for example, identifying a failure to ask the right question or identifying the way in which the Commission at first instance misdirected itself.
PN595
That is merely a matter of language. A failure to ask the right question the question that wasn't asked is, "Did the agreement meet the BOOT?" The question that was in fact asked is evident from the material, which is that, "On the sample of rosters provided by Coles, are the employees the hypothetical employees in those rosters better off?" So it's all form over substance to a significant extent.
PN596
It was put that not all considerations are relevant considerations, and we take the considerations that are relevant from the terms of the statute and its words and its context. We wholeheartedly agree with that proposition and in that regard we refer to section 193 of the Act which makes clear that when determining whether or not an agreement passes the test, what we need to look at is the employees.
PN597
That is very clearly set out the words of the statute. It is not the material put forward by the employer. It is not even the material put forward by the bargaining representatives. What the Commission is required to direct itself to is whether at the test time each award-covered employee, and each prospective award-covered employee would be better off.
PN598
So it is very clear in this case that that is the consideration to which the tribunal is required to direct itself. And we know that that is well, on our case that is the requirement to which the tribunal did not direct itself. To make good that proposition, if I can direct the bench's attention to appeal book 93. What we see here is the communication from the chambers of the Commissioner to the bargaining representatives. And in the sort of two-thirds of the way down the page we see a sentence that begins:
PN599
Based on comparative models undertaken, please refer below.
PN600
The final sentence of that paragraph reads:
PN601
The comparative models are based on the roster patterns submitted in the F17 application.
PN602
And that is to be read with pages 89 and 90 of the appeal book, which is the internal communications with the member support team of the Commission, where under BOOT considerations on page 90, we see the dot points reads:
PN603
Modelling (based on the roster patterns provided by the applicant) indicates that some rates are paid for part-time and junior casuals, and are not high enough to compensate -
PN604
and it goes on. No reference anywhere in that material to the situation of ongoing employees. It was put before the tribunal by the AMIEU. It was put before the tribunal by Mr Cullinan and it wasn't considered. A relevant factor not considered, we have jurisdictional error and it would be a rare case, if ever, that permission to appeal was not granted.
PN605
DEPUTY PRESIDENT KOVACIC: Isn't there one inference that you could draw from that, Ms Kelly, that the Commissioner was satisfied that there weren't any or didn't have any concerns around that group of employees?
PN606
MS KELLY: We say that's not open because it's not referred at all in the material and it's not referred to in the decision. It's not referred to by the member support team. So we have in front of us the whole of the Commission file. And what we can see is that the member support team did an analysis based on the rosters provided by Coles. We don't see any analysis based on the concern raised by the AMIEU. We don't see any analysis of the rosters, the same rosters submitted by the AMIEU. And we don't see any reference to an analysis done based on material raised by sorry filed by Mr Cullinan. And we don't see it referred to in the decision.
PN607
It would be a very dangerous inference to draw that the Commissioner had regard to the circumstances of some 50,000 employees, analysed it, put nothing on the file in support of that analysis. Didn't refer to it in the decision but was nonetheless satisfied. We say that inference is not open. Now, much has been heard about new evidence and I address this but to close it out, new evidence is relevant here and admitted for the purposes of demonstrating that permission to appeal should be granted.
PN608
We say that it will be granted leave to admit that additional evidence will be granted if the matter proceeds. But we can make good our case in any event. So as to the first of those, what we need to recall is that the approval process is not transparent to employees. The communication circulated among the bargaining representatives, chambers is communicating with the bargaining representatives. What employees know is that an approval application is on foot.
PN609
So none of those internal communications were made transparent to anybody other than the bargaining representatives. They were not transparent to Mr Hart. He was getting his information from the Sydney Morning Herald. What happens is that this agreement is approved without a hearing and without a notification that any interested party can contact chambers.
PN610
So it's not the case that this was information available and which could have been relied on at first instance, because there was no first instance in which the material could have been led. No hearing and no opportunity. Will it change the outcome? If the evidence is accepted, almost certainly it will. Almost certainly it will. For the reason that the financial detriment is not insignificant. There would need to be and we would expect to see this in reasons for a decision.
PN611
That if there were non-pecuniary benefits that could outweigh a 20 per cent detriment financially to a worker, you would expect to see some pretty significant non-pecuniary benefits for that person to be assessed as better off overall, and you would certainly expect to see something in the decision that made transparent the reasoning process by which that conclusion was reached, and we don't see that.
PN612
So we say it would be highly likely that the material would be admitted on appeal, but in any event if the Commission was against us on that point, we could still make good the point because the material was before the tribunal, both through the AMIEU and Mr Cullinan, and there's nothing in the reasons or the Commission's file that indicates that regard was had to it.
PN613
Now, some criticism was made of a submission put by us that there's nothing in the non-pecuniary benefits in the agreement that would counter-balance the financial detriment. What my learned friend failed to note when he criticised the statement at paragraphs 33 and following, is that those paragraphs in completely neutral terms compare the relevant agreement entitlement with the agreement with the award entitlement.
PN614
Now, it is in neutral terms. Mr Cullinan doesn't make any qualitative statements about the consequences. But if attention is had to the content of those paragraphs, we see that any benefits contained in the non-pecuniary criteria looked at, are so small as to be negligible when compared with the relevant significant financial detriment that we say exists.
PN615
Criticism was made of us of making assumptions. It is commendable in my view that the material we have put before this tribunal absolutely clearly sets out the limitations and assumptions on which it is based. It is obvious from a reading of the F17 that a whole range of assumptions were made in the materials that Coles put before the tribunal. Those assumptions are not transparent. They're not transparent.
PN616
So no criticism can be made of us for being open and transparent in our materials when the F17 of Coles and the F18 of the SDA relied on material with a far less degree of transparency. If I can return then to briefly address a number of points raised by Mr Wood. I think it important, Commissioner Roe, to return to a conversation that you had with Mr Wood about a chronology as regards the AMIEU, which was in the context of the degree to which, and extent to which the AMIEU raised these concerns.
PN617
The chronology was this. The F17 and F18 were filed. There was a communication from the tribunal about particular undertakings. Coles proposed to limit those undertakings to juniors and casuals, which had the effect of carving out the group that we are primarily concerned with today. The AMIEU objected to that proposal. It objected to the narrowing of the terms of the undertaking. The next thing that happened was that the agreement was approved.
PN618
There was no further correspondence entered into. There was no appeal held and the agreement was approved. So to the extent that criticism was levelled about the AMIEU in that sense, it was wholly unjustified.
PN619
Now, Mr Wood referred to Mr Cullinan as a stranger to the issue. And to some extent that's true, but Mr Cullinan isn't just any stranger. Mr Cullinan is a union official of long-standing. He is well-known to this tribunal and he has an extensive history of negotiating enterprise agreements. In relation to the material that he put forward to the tribunal, it is not fair to treat him as we would any other member of the public.
PN620
It was reasonable to think, as my client Mr Hart did, that a senior experienced union official who puts in detailed and cogent material before the tribunal in an approval application, that this tribunal would have had regard to it. And that goes to two points. It goes to, one, whether or not the material that was put forward was relevant material of a kind that the tribunal was required to take into account. And we say that it was; it supports that submission.
PN621
But it also goes to the question of the reasonableness of Mr Hart not intervening in the approval process. A senior experienced union official of significant standing, is agitating the point. Mr Hart isn't to know he doesn't know in his own words, he doesn't know the legislation and he doesn't know the law. He is not to know that the tribunal is not going to have regard to that material. And so no proper criticism can be made of him for his failure to intervene in the approval process at that stage.
PN622
Now, my learned friend, Mr Muller, made a submission as to the notion that workers would be better off under the 2011 agreement. There's no evidence of that fact but if in truth the 2011 agreements would be revised, that doesn't necessarily lead to the consequence contended for by Mr Wood, and I think supported by Mr Friend. It may well be that given that agreement was negotiated when it was supported by an industry award not a modern award that the appropriate thing to do, as with other agreements in recent times in this tribunal, is for an application to be made to terminate it.
PN623
That would have the effect that the workers fall back to the award and, as my friend Mr Muller put, that is a better outcome for a very great many of them. Now, the final point two final points on permission to appeal and then one point on the strike out. A submission was put that time has marched on. The wholesale changes made by Coles were, on its own evidence, implemented before the end of the appeal period when it wasn't necessary.
PN624
There was an alternative available to it, which was to make do with its existing arrangements until the end of the 21-day period. Coles tells us that. But Coles decided that it would implement those changes before the end of the appeal period. That's a consequence that it brought on itself with eyes wide open. The delay has been caused by the strike out application. If Coles and the SDA believe that this agreement passes the BOOT, the sensible course of action is to get on, get it heard, get it over it and move on.
PN625
The delay caused by this application is entirely caused by Coles and ought not to be sheeted home to my client for the time be used to defeat his capacity to prosecute his legal rights. The final point here is that it was suggested that nothing should be done for because of the disruption to workers occasioned by the agreement being potentially quashed.
PN626
Now, that is an extraordinary submission in the context of what we see is the detriment to the Coles' employees that we have been able to identify at Benalla and at Northcote. And if I can direct the tribunal's attention to annexure JJC4, this illustrates the extraordinary proposition that was put. JJC4 is the draft prepared by Mr Cullinan of the Northcote store roster. And in the middle of that we see a percentage which represents the gain in positive, or the loss in negative, of the agreement.
PN627
The submission is put this is all too hard, it is too disruptive, let's just sit back and do nothing, while workers are worse off under the award to the tune of under the agreement, to the tune of 4.6 per cent, 8.4 per cent, 10.9 per cent, 17.6 per cent, 2.8 per cent, 7.2 per cent, 10.4 per cent, 11.5 per cent it goes on. In the most recent modern award review, a five member bench of this tribunal said that a 5 per cent detriment was not insignificant to low wage workers. If that is so, and self-evidently it is so, an 18.3 per cent detriment is not insignificant to a low-paid worker who across the course of a year earns less than some members of this bar table earn in the course of a day.
PN628
Now, as to the strike out application, we've put on detailed written submissions about that and there's only two points that I need to press. The first is that the proposition not grappled with by my learned friends is that the appropriate course, as we have set out in our written submissions, is to have regard to Mr Hart's motivation. We can say what we like about Mr Cullinan but the law is very clear, and I've given the authority in the written submissions.
PN629
We need to look at why Mr Hart has brought this appeal and if and only if we can impugn his motivation can the application be struck out as an abuse of process. In truth, Coles' submissions are that Mr Hart brings this case for an improper purpose. That purpose being to commit or to facilitate Mr Cullinan agitating his concerns about the agreement.
PN630
Now, even were that so, which we deny and Mr Hart has put in evidence before this tribunal about his motivation the test is whether notwithstanding the existence of a prima facie case the litigant has no intention of prosecuting the proceedings through to a conclusion because he or she wishes to use them only for a collaterised proper purpose.
PN631
Now, Mr Hart is here and this is the only point I want to make about this before I sit down. Why is Mr Hart here? Mr Hart is a student from Queensland in the middle of an examination. We weren't notified by Coles that he was required for cross-examination. We asked Coles if he could appear via video link because he is a student earning $300 a week. He is 20 per cent worse off than under the award, and he has limited financial resources and no financial back-up.
PN632
That request was refused. We were told Mr Hart needed to be here. It was confirmed as late as yesterday that our witnesses were required for cross-examination. It was not until my learned friends got up this morning that they resiled from that position after the commencement of this hearing. They have had every opportunity to cross-examine Mr Hart about his motivations. They got him down here for that purpose.
PN633
They walked away from it after the start of the case, and in that circumstance there is absolutely no basis on which this tribunal should depart from the material put forward by Mr Hart which demonstrates that he brings this appeal for his own reasons. He has every intention of litigating it to finality, and that he will do so with or without Mr Cullinan. And if that material is accepted, as it ought to be, particularly in the rather unfortunate circumstances I have just described, then a strike out case wholly falls away. Unless the bench has any questions, they're the submissions in reply for the appellant.
PN634
VICE PRESIDENT WATSON: Thank you, Ms Kelly. Ms Kelly, there is one question before I get back to Mr Wood. I asked Mr Muller whether he considered that the matter was capable of being resolved by a consideration of undertakings. Is that a matter that you have instructions on?
PN635
MS KELLY: It is not. I anticipate that the conversation going on let me put it this way. A conversation was had about that. I don't have instructions to make a submission about it but I anticipate I could get them while you hear from Mr Wood.
PN636
VICE PRESIDENT WATSON: Yes. Okay. Thank you.
PN637
MS KELLY: Thank you.
PN638
VICE PRESIDENT WATSON: Do you claim to be misrepresented, Mr Wood?
PN639
MR WOOD: No, I just think the way it has proceeded, there are three applications. My learned friend opened on permission and she has replied on permission. I opened on abuse and I'm entitled to a reply on abuse, I think, in an orthodox - - -
PN640
VICE PRESIDENT WATSON: On the strike out application?
PN641
MR WOOD: On the strike out point.
PN642
VICE PRESIDENT WATSON: Yes.
PN643
MR WOOD: Can I say in relation to that, that the improper purpose we allege is that Mr Hart is in truth a vehicle for Mr Cullinan's claim. That's we make that point. We don't say that he is not interested in it. We don't say that he doesn't want the case to go ahead, but merely that he is the vehicle that has been used by Mr Cullinan to agitate a case on appeal that he wouldn't be able to agitate himself because he wouldn't fall within the definition of a person aggrieved.
PN644
We properly, we thought, after we received notice from our learned friends last night that they were inclined to cross-examine Ms Lembovski in a manner that would have well, I found out about it yesterday, last night, and there were topics that were raised with us last night, that were likely topics of cross-examination of Ms Lembovski, which would have caused a great deal of concern had well, my learned friends laugh.
PN645
They sort of throw these allegations around without any concerns, including the concerns that were raised with us last night. And we made the decision that it was appropriate having regard to what was suggested the cross-examination of Ms Lembovski would be, to try to have a situation where the issues that that would have raised, which might have derailed this hearing, weren't raised.
PN646
And as a quid pro quo, we didn't cross-examine Mr Hart. Now, that came up last night when my learned friend called my junior and told him the type of questions that she was going to ask Ms Lembovski. Now, that's a perfectly appropriate compromise that one would expect from counsel as a member of the tribunal, as I raised last night.
PN647
In relation to the AMIEU submissions, could I ask the tribunal when it looks at what the AMIEU said below, particularly at pages 69 to 114 of the appeal book, but particularly at appeal book 70, that the AMIEU has particular concerns with prospective award covered employees who are 17 or 18 years of age and who work a significant proportion of their roster after 6 pm.
PN648
And when one looks at that correspondence all the way through to 114, I think the submission I made before lunch is a fair one, that the concern the AMIEU had as it was articulated in the submissions on a fair reading, that is not on a narrow sort of tooth-comb looking for things that aren't there but on a fair reading the concerns were with 17 and 18 year old juniors, and with casuals, and they were addressed in the undertakings.
PN649
Lastly, in relation to the question of whether or not the employees would fall to the underlying award or the underlying agreement, it's all very well for a stranger to say that they would fall to the underlying award, when the position, it would seem to us, would be that the underlying agreement would apply. But that perhaps is a question for another day. That's all.
PN650
VICE PRESIDENT WATSON: Thank you. Ms Kelly?
PN651
MS KELLY: Nothing further.
PN652
VICE PRESIDENT WATSON: No answer to my question?
PN653
MS KELLY: My apologies. Yes. My apologies, Vice President. One more point. We see that it is possible for the issues to be resolved by way of undertakings. In light of the position put by Coles that no further undertakings would be offered that, I'm not sure, takes us very far but nonetheless we think it's possible that could be done.
PN654
VICE PRESIDENT WATSON: Thank you. We thank counsel for their submissions in this matter. We propose to reserve our decision. We will now adjourn.
ADJOURNED INDEFINITELY [3.07 PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
EXHIBIT #K1 WITNESS STATEMENT OF MR D. HART DATED 07/09/2015 PN57
EXHIBIT #K2 WITNESS STATEMENT OF MR D. HART DATED 25/09/2015 PN57
EXHIBIT #K3 SECOND FURTHER WITNESS STATEMENT OF MR D. HART DATED 06/10/2015................................................................................................................. PN59
EXHIBIT #K4 WITNESS STATEMENT OF JOSHUA CULLINAN AND ANNEXURES JJC1 THROUGH TO JJC2 DATED 25/09/2015........................................................... PN61
EXHIBIT #K5 FURTHER WITNESS STATEMENT OF JOSHUA CULLINAN ANNEXING JJC7 THROUGH TO JJC1 DATED 06/10/2015................................................. PN63
EXHIBIT #K6 APPELLANT'S OUTLINE OF SUBMISSIONS...................... PN70
EXHIBIT #K7 APPELLANT'S OUTLINE OF SUBMISSIONS RE ABUSE OF PROCESS DATED 06/10/2015.................................................................................................. PN73
EXHIBIT #F1 WITNESS STATEMENT OF CHRISTOPHER PAUL GARDNER DATED 25/09/2015................................................................................................................. PN81
EXHIBIT #F2 SECOND WITNESS STATEMENT OF CHRISTOPHER PAUL GARDNER DATED 06/10/2015.................................................................................................. PN83
EXHIBIT #F3 WITNESS STATEMENT OF JORDANA LEMBOVSKI DATED 06/10/2015................................................................................................................................... PN85
EXHIBIT #F4 OUTLINE OF RESPONDENTS' SUBMISSIONS RE SECTION 587 OF THE FAIR WORK ACT RE ABUSE OF PROCESS DATED 25/09/2015............... PN89
EXHIBIT #F5 OUTLINE OF RESPONDENTS' SUBMISSIONS, PERMISSION TO APPEAL RE HART APPEAL DATED 06/10/2015............................................................. PN91
EXHIBIT #F6 OUTLINE OF RESPONDENTS' SUBMISSIONS RE EXTENSION OF TIME DATED 09/10/2015.................................................................................................. PN91
EXHIBIT #M1 WITNESS STATEMENT OF GRAHAM SMITH, ATTACHMENTS GS1 THROUGH TO GS5, DATED 07/10/2015.......................................................... PN109
EXHIBIT #M2 AMIEU SUBMISSIONS RE APPLICATION FOR EXTENSION OF TIME DATED 07/10/2015................................................................................................ PN111
EXHIBIT #S1 SDA SUBMISSIONS RE PROPOSED HART APPEAL ON PERMISSION PN115
EXHIBIT #S2 SDA SUBMISSIONS RE EXTENSION OF TIME FOR THE AMIEU DATED 06/10/2015............................................................................................................... PN117
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