C2015/6866, Transcript of Proceedings [2015] FWCTrans 676 (23 November 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052723

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COMMISSIONER ROBERTS

C2015/6866

s.739 - Application to deal with a dispute

Australian Municipal, Administrative, Clerical and Services Union

and

Sydney Trains

(C2015/6866)

Sydney Trains Enterprise Agreement 2014

Sydney

10.33 AM, FRIDAY, 13 NOVEMBER 2015

PN1

THE COMMISSIONER: I took appearances at the mention. Have they changed at all?

PN2

MR WOODS: No, Commissioner.

PN3

THE COMMISSIONER: Did I grant you permission to appear?

PN4

MR WOODS: I think we did deal with that, but I can't remember on record. I understand there's no objection.

PN5

THE COMMISSIONER: Is it opposed for the hearing?

PN6

MR CANAVAN: It's not opposed, Commissioner, no.

PN7

THE COMMISSIONER: Okay, not being opposed, it's granted, just in case. This is your application, sir.

PN8

MR WOODS: Yes.

PN9

THE COMMISSIONER: Are there any housekeeping matters we have to deal with first?

PN10

MR WOODS: Not that I'm aware of. The directions were given for the submissions and any evidentiary material to be put. Submissions have been put by both parties and I think that it's otherwise ready for any oral argument.

PN11

THE COMMISSIONER: Okay. What I'll do initially, Mr Woods, is I have your outline of submissions, or submissions on jurisdiction, the one dated 4 November.

PN12

MR WOODS: Yes.

PN13

THE COMMISSIONER: Which I will mark as exhibit Sydney Trains 1.

EXHIBIT #SYDNEY TRAINS 1 SUBMISSIONS ON JURISDICTION

PN14

THE COMMISSIONER: I'll just get this out of the way because otherwise I'll forget it, and to save time I will mark the ASU's submissions in response as exhibit ASU 1.

EXHIBIT #ASU 1 SUBMISSIONS IN RESPONSE

PN15

THE COMMISSIONER: It's more to ease my decision writing. Having done that, off you go.

PN16

MR WOODS: Commissioner, I ‑ ‑ ‑

PN17

THE COMMISSIONER: Don't tell me everything that's written down there.

PN18

MR WOODS: No. I take it that you've ‑ ‑ ‑

PN19

THE COMMISSIONER: Take note ‑ ‑ ‑

PN20

MR WOODS: ‑ ‑ ‑ read it and understood the propositions put by both parties and so what I was proposing to do is just go to the nub of it and deal significantly with a response to my friend's submissions.

PN21

THE COMMISSIONER: Yes.

PN22

MR WOODS: The thrust, of course, of what we say is that the question that the ASU has put as the issue for dispute, and it's set out at 1.2 of my submissions and the email of 15 October 2015, is what we should be focusing on. I take it from the ASU's submissions that if this matter required an involvement of the insurer then it clearly falls outside the scope of this Commission's jurisdiction, so I think that's accepted. They take issue that it involves that. I understand that point, but that point, I think, is - I take as accepted and I think it's clear that whatever jurisdiction arises, it's focused on what's in the enterprise agreement and it's been employers and employees and the unions.

PN23

THE COMMISSIONER: And you're happy with that question as being the one I'd ‑ ‑ ‑

PN24

MR WOODS: Yes.

PN25

THE COMMISSIONER: Good, thank you.

PN26

MR WOODS: So we've conceded to a point that there is a matter pertaining to fall within 8.2A of the dispute clause. The ASU has put a couple of other grounds as to why it should be treated under another clause in 8.2. To one extent, given that concession, that doesn't matter, but I think it's still important to address that.

PN27

The first is that they also seek to rely on 8.2(b) which relates to matters pertaining between the employer and the union, and the submissions they have in that regard are at paragraphs 24 through to 26. Obviously we don't have an issue with the words of 8.2(b), but they just have no application to the present proceedings. The issue of the operation of a clause like that was considered by the Full Bench of the Commission in Airport Fuel Services Pty Ltd v Transport Workers Union of Australia [2010] FWAFB 4457.

PN28

THE COMMISSIONER: Do you have a copy to hand up?

PN29

MR WOODS: I can hand that up.

PN30

THE COMMISSIONER: Thank you.

PN31

MR WOODS: That was an issue in respect of permitted matters which raises that same question of - under section 172. Discussion about that starts at page 8 at paragraph 17 and identifies again the issue of the relationship between employer and employee organisation which is then discussed over on page 10, the base of page 10, where the Full Bench is discussing the explanatory memorandum about what that clause dealt with and on the top of page 11 extracts paragraph 7 - 676, I should say, from the explanatory memorandum and clearly identifies the sorts of things that are meant to be caught.

PN32

Then in dealing with the substance of the particular matter at paragraphs 20 and 30 the Full Bench says, well, it's got nothing to do with those types of issues about promoting membership, training leave, attending union meetings, which are all clearly a question of relationship. Now, the ASU says, well, the union was involved in representing members back in 2009, but the question of - to fall into a dispute about this nature there would be a question of a dispute about whether or not there was an issue that fell within the character, for example, in section 676. The fact that the ASU represented a member at the time doesn't fall into any of those items as to character of the issue in dispute, and certainly doesn't go to the dispute which is identified earlier in terms of the question.

PN33

So that proposition just doesn't apply and should not be seen to be a reason to expand the operation of that 8.2(b) to capture just because you represent somebody in a dispute. There is no question, for example - on page 11 at 6.6 there's a third dot point which talks about terms that provide for union involvement in dispute settlement procedures. There's no question about whether or not the union is entitled to be involved in dispute procedures so that matter just doesn't arise.

PN34

My friend then goes on to also raise item (e) in clause 8.2, the operation application of the agreement, as a reason to support the jurisdiction for the dispute. Now, that relies upon examining clause - that's clause 83 of the enterprise agreement which has been set out at paragraph 29 of my friend's submissions, but the claim made that this is a clause about insurance - but when you look at the clause it's not a clause about insurance, it's a clause about sick leave. Appreciating headings can be misleading, this is clearly identified as a sick leave.

PN35

There is a general proposition for employees' entitlement to sick leave in clause 28.4 of the enterprise agreement. That clause identifies the entitlement and at subclause (a) talks about employees on full pay accruing 15 days per year for sick leave. What this clause does when you break it down and examine it is - the first paragraph, before you get to 8.3 - sorry, 83.1, is a paragraph for identifying to whom this clause applies. So it's got some historical significance because it talks about employees who are covered, and as we look back in time that really should be "were", because it's talking about a point in time that employees were covered by one of those two relevant agreements and made an election as at 29 August 2002.

PN36

So all of that is about identifying to whom this clause applies, and it's those people who are covered by those agreements and made that election to retain former conditions to which this applies, and then the work that this clause is doing is in 83.1, changing their entitlement to 10 days. So what that is doing is in terms of looking at how does that interplay with 28.4, 28.4 is a general clause applying generally to people, but here this clause identifies a particular group of people for whom their sick leave entitlement is 10 days. It then goes on to deal with other aspects about extended leave and the, finally, once they're over 65 what applies.

PN37

So this clause is not about creating an entitlement to any form of insurance but it's actually just identifying a group of people to whom 28.4 will not apply and they actually only have 10 days of sick leave. So there is no question in these proceedings as to, when you look at the question that's raised, that is a question about whether or not clause 83 applies to Mr Cockerill. I think there's no dispute about that. I think everyone accepts that that is a clause that applies, and what that clause does is change the entitlement to sick leave. So again, for those reasons that issue is not a matter that gives rise to a jurisdiction.

PN38

THE COMMISSIONER: I'll hazard this guess. Your case rests on the basis set out in 2.8, 2.9, and 2.10 of your submissions, does it not?

PN39

MR WOODS: Yes.

PN40

THE COMMISSIONER: You have the slight concession in 2.8, then you move on.

PN41

MR WOODS: Yes. So the issues that I'm just identifying now are for completeness in terms of where the issue arises for considering jurisdiction, and we accept there is a question about matter pertaining to the relationship between employer and employee. That's where the dispute is, and in addressing these other grounds I'm just indicating that, Commissioner, you should not see these other two provisions in clause 8.2 as matters that should give a basis for you to move forward and have jurisdiction.

PN42

THE COMMISSIONER: Well, you'll find out in the fullness of time.

PN43

MR WOODS: In the fullness of time.

PN44

THE COMMISSIONER: These other cases you refer to in written submissions, do you have those to hand up?

PN45

MR WOODS: Yes, I have.

PN46

THE COMMISSIONER: Just do it all at one time, will you, to stop my ‑ ‑ ‑

PN47

MR WOODS: Yes.

PN48

THE COMMISSIONER: Relieve my associate from hopping up and down - and speaking of hopping up and down, Mr Cockerill, I know that you're in considerable physical discomfort, from previous proceedings. If you need to get up, as I said, walk around, anything to relieve your back pain, you do it.

PN49

MR COCKERILL: I appreciate that. I'm just ‑ ‑ ‑

PN50

THE COMMISSIONER: Okay, and there will be no offence and no ‑ I won't query you, okay.

PN51

MR COCKERILL: I appreciate the offer and I'll do what I need to. I just ‑ ‑ ‑

PN52

THE COMMISSIONER: You do what you need to do.

PN53

MR COCKERILL: I'm sort of bending in my chair at the moment.

PN54

THE COMMISSIONER: That's all right. You can pirouette up and down the back of the room, if you want, Mr Cockerill.

PN55

MR COCKERILL: Yes.

PN56

MR CANAVAN: You can get your stilettos out.

PN57

MR WOODS: I'll hand up then, Commissioner, the decision of the AMOU v Sydney Ferries Corporation and the Re Rural City of Murray Bridge Nursing Employees, ANF (Aged Care) Enterprise Agreement 2004 decision.

PN58

THE COMMISSIONER: Okay, well, I'll pay attention to those.

PN59

MR WOODS: While I refer to the Rural City of Murray Bridge matter, I'm not going to go to that. Those paragraphs are just set out there and as a useful collation of those issues and they are clear going forward. The next issue is how that fits with the question of salary continuance insurance, and as you identify, Commissioner, we accept that you should apply the Full Federal Court's decision in the Sydney Ferries matter to the extent that it is applicable, and that is ultimately enunciated in paragraph 23 through 25 of the decision.

PN60

In that decision the issue that was being considered was whether or not a clause in the Sydney Ferries enterprise agreement that said specifically that they would seek out salary continuance insurance - and the clause is extracted in paragraph 1 of the decision, that Sydney Ferries agreed to insure its maritime officers for income protection insurance for long‑term illness and injury equivalent to 75 per cent of his/her salary after a three‑month qualifying period commencing as soon as practicable after the lodgement of the agreement.

PN61

The issue in that was then was that agreement to do that a matter pertaining and the Full Bench decided that it was, because it was - in circumstances in which Sydney Ferries agreed that they never did anything about that clause whatsoever, oddly enough, but the decision identifies that the agreement to take out insurance would become relevant to matters pertaining, but when you see at paragraph 25 in the last three lines they state:

PN62

Whatever uncertainties may remain about the precise content of the obligation imposed by the term, it's not invalid by reason that it contains only prohibited content as presently drafted.

PN63

So it was a very narrow decision in terms of what they were deciding. So that's why we say that there is the potential for some scope, depending upon what the dispute is about, and that the issue about the detail is the issue that is sought to be agitated in these proceedings, as identified in the submission - the email of 15 October 2015 that's at 1.2.

PN64

So then what then is the situation? It's not in dispute that Sydney Trains has an insurance policy that deals with this issue. My friend ultimately complains that just because there's an insurance policy and Sydney Trains is not an insurer doesn't change the nature of this matter, but the problem with that proposition is what is actually being sought of the Commission in dealing with this matter? The problem is that what is being sought is trying to identify what is his correct entitlement to salary continuance insurance.

PN65

Ultimately there is an insurance policy. The entitlement under that policy is a question of interpretation of that policy, and that's the problem that is there. This is not the case such Sydney Trains where it just has done nothing - sorry, Sydney Ferries, where it's done nothing. It's accepted there's a policy. There is correspondence attached to the application where the response is provided by those who in Sydney Trains, to Mr Cockerill, that deal with the policy to identify its scope and what's paid and why it does not fall within the terms of the policy. So if there's a ‑ ‑ ‑

PN66

THE COMMISSIONER: So who do you say Mr Cockerill, through his union, should be seeking relief from?

PN67

MR WOODS: Well, the issue would be what is the proper - so it's from the insurer, essentially, because of what's the proper interpretation of the policy that applies to Mr Cockerill.

PN68

THE COMMISSIONER: And you have no role in that, given that the insurance was taken out as part of an agreement and is a matter pertaining?

PN69

MR WOODS: Well, ultimately we don't, because the policy is a policy - the insurance policy is the insurance policy, and so entitlements under the policy is ultimately a question between the insurer and the insured. It's not a circumstance where Sydney Trains is an insured. The insured people are the employees, so in that sense the issue is narrow in terms of its application, in terms of who is there to determine the entitlements.

PN70

THE COMMISSIONER: Right.

PN71

MR WOODS: Ultimately that's a very short point and a very short issue in terms of what this Commission - how this Commission can deal or not deal with the matter.

PN72

THE COMMISSIONER: See, I think, in short form, and I'm not putting it very elegantly, or I don't think I'm going to put it very elegantly, that Mr Cockerill believes that he entered into an arrangement with Sydney Trains which was supposed to provide a particular benefit in particular circumstances. He didn't receive that, in his submission, and ultimately it's up to the employer that entered into the arrangement with him to provide the goods no matter what happens with the insurer.

PN73

MR WOODS: And ‑ ‑ ‑

PN74

THE COMMISSIONER: I'll allow you to hop up and tell me if I'm wrong, Mr Canavan, but ‑ ‑ ‑

PN75

MR CANAVAN: No, that's consistent with what I'm going to say, Commissioner.

PN76

MR WOODS: So the issue with that in terms of this Commission's jurisdiction to deal with that is that it's always contemplated that there would be a third party insurer who would be carrying the responsibility, and ultimately the insurer has, as insurance companies do, control over the terms of the insurance policy. So the question then, as it arises now, and as formulated, is about what the entitlements to the - having made a claim, what his entitlements are under the claim, and when you come to a question of entitlements under the claim you go back to the insurance policy, and that is where the issue that is framed for consideration sits.

PN77

THE COMMISSIONER: To put it brutally, what you're saying, I think, is that you entered into an arrangement with Mr Cockerill and he's fulfilled his part of the bargain that paid for this insurance, in effect, but if he has been dudded by the insurer then that's his problem to deal with the insurer. It's not elegant, but I think it's accurate.

PN78

MR WOODS: In terms of the opening proposition, of course, this is only a jurisdictional issue ‑ ‑ ‑

PN79

THE COMMISSIONER: Yes.

PN80

MR WOODS: ‑ ‑ ‑ and not a merits issue, and I take that qualification ‑ ‑ ‑

PN81

THE COMMISSIONER: We can chat about it and ‑ ‑ ‑

PN82

MR WOODS: The qualification as assumed in what you've said, Commissioner, but essentially that's right. The dispute about what is payable under the policy and the parties to that are the insurer and the insured.

PN83

THE COMMISSIONER: If it's a matter pertaining, the insurance itself, and Sydney Trains failed in some duty to take out the correct insurance or insurance which would mirror the agreement with Mr Cockerill, that's not the responsibility of Sydney Trains?

PN84

MR WOODS: Well, the first issue is what does this - I go back to the question about what this dispute is about, and it's about the entitlements under the policy. It's not a question that's phrased in any other way about what might or might not have been the issue arising from the correspondence at the time. So because we're in a situation of the claim being made under the policy, that's the problem that - what the issue is about.

PN85

THE COMMISSIONER: But, look, forget insurance for a moment. We'll put it in broader terms, or simpler terms, more for my understanding than anyone else here. If Mr Cockerill had sacrificed some condition of employment and in return Sydney Trains said that, "You'll be supplied with a 55‑inch television from Bing Lee", and Bing Lee then delivered Mr Cockerill a 21‑inch television, whose problem would it be?

PN86

MR WOODS: That's an interesting proposition, Commissioner, but ‑ ‑ ‑

PN87

THE COMMISSIONER: It's a very - it's on a par.

PN88

MR WOODS: Well ‑ ‑ ‑

PN89

THE COMMISSIONER: It's a product.

PN90

MR WOODS: Yes, it's a product. The issue then is how does the supply of a third party product relate back to employment?

PN91

THE COMMISSIONER: Where it results from an agreement between the employer and the employee.

PN92

MR WOODS: Yes. Well, the employer and employee, the issue as identified by the High Court is about their relationship as employer and employee. The proposition about that issue still stands or falls about where the terms of the arrangement applies, and in that sense it would still be back about what has Bing Lee done as the fulfiller.

PN93

THE COMMISSIONER: By the way, I've always found Bing Lee to be a highly ethical organisation and I cast no aspersions upon them.

PN94

MR WOODS: No aspersions are cast by anybody about that.

PN95

THE COMMISSIONER: You must take great care when there's transcript.

PN96

MR WOODS: Commissioner, I think that's the - you've highlighted the nub of the issue. I have identified that in the written submissions. It's quite a narrow question when you apply it and the issue in terms of what is the obligation, there's not a question of changing what someone else must do. In the end there's a discussion about the insurance. It's clear there's always a third party insurer in terms of what's going to be covered and the issue now where a claim has been made is a question of what is claimable under the policy, and that's the point which is at the nub of this dispute and is at the nub of the question that's been put.

PN97

THE COMMISSIONER: Yes, my questions don't indicate any rush to finalise my view.

PN98

MR WOODS: No, no.

PN99

THE COMMISSIONER: They're meant to elucidate matters in my mind. All right. So did ‑ ‑ ‑

PN100

MR WOODS: That's it.

PN101

THE COMMISSIONER: That's it.

PN102

Mr Canavan, taking account of my great aversion to the reading of submissions to me when they're already in writing ‑ ‑ ‑

PN103

MR CANAVAN: Sure, and, Commissioner, I think you've covered with some of your questions there a lot of the points I was going to go to, so I really won't take too much time going back over it again and again. Look, we are strongly of the opinion this is clearly a matter pertaining to the relationship between the employer and the employee. The Full Bench of the Federal Court case that my friend Mr Woods quoted is really useful in that regard, particularly, we found, paragraphs 21 to 24.

PN104

THE COMMISSIONER: Which one was that, sir?

PN105

MR CANAVAN: This is AMOU v Sydney Ferries.

PN106

THE COMMISSIONER: Yes. Which bits do you want to draw my attention to? The same bits?

PN107

MR CANAVAN: If I can take you to paragraph 21, because this talks about why the Commissioner found that that particular clause in the Sydney Ferries agreement pertained to a relationship between employers and employees.

PN108

THE COMMISSIONER: Well, there's no argument that it pertained.

PN109

MR CANAVAN: Yes, and 22 there I just thought was useful, in that it provides analogies with sick leave and workers comp.

PN110

THE COMMISSIONER: I'm just working my way through 21. Just give us a moment.

PN111

MR CANAVAN: Okay, sorry.

PN112

THE COMMISSIONER: Yes. 22 says what?

PN113

MR CANAVAN: 22 provides examples of other such entitlements which would be similar to salary - income protection insurance, such as sick leave, workers compensation schemes and superannuation schemes, and then 23 sort of sums that up by stating that:

PN114

A term directed to the protection of income in the event of illness or injury may pertain to the relationship of employers and employees in the same way as those other forms of employment benefit and may do so where the protection endures after the obligation to make a payment which secures it has ended.

PN115

What I was going to do at that point was really - given that the Full Bench has made that comparison with sick leave, was to give an example, I guess, similar to your Bing Lee example, and to state that if an employer had gone to a group of employees and said, "We'll offer you 20 days of sick leave", and then when the employees needed to use that entitlement they were told, "We've outsourced the payment of that sick leave to a third party who are only going to provide you with 15 days sick leave", and then to say that the employees then have to go and take this matter up with a third party in order to receive their entitlement just seems, well, inherently unfair on the employee.

PN116

THE COMMISSIONER: Yes. See, the problem here in that argument is I'm not dealing with whether it's equitable.

PN117

MR CANAVAN: Yes, but we - I mean, our submission would be ‑ ‑ ‑

PN118

THE COMMISSIONER: I might make comments about equity, but certainly I'll make no binding rulings about equity.

PN119

MR CANAVAN: Yes. Well, again our submission would be that Sydney Trains' commitments to their employee in this situation were very clear. They wrote to him offering him a particular entitlement which is not too dissimilar from the entitlement that was in the Sydney Ferries case, and Sydney Ferries are also themselves not an insurance company.

PN120

THE COMMISSIONER: Well, I think Sydney Ferries never actually took out the insurance.

PN121

MR CANAVAN: No, that's true.

PN122

THE COMMISSIONER: Which is much worse.

PN123

MR CANAVAN: Yes.

PN124

THE COMMISSIONER: Very bad.

PN125

MR CANAVAN: I guess what we say, the fact that Sydney Trains has failed to then go and take out an insurance policy that's in accordance with these commitments does not convert the matter from a matter between Mr Cockerill and the employer to a matter between Mr Cockerill and this insurance company. So we wouldn't argue that Sydney Trains perhaps do have an issue with their insurer or a dispute with their insurer, but our member doesn't have a dispute with Sydney Trains' insurer about this matter, and we think that's supported by the Federal Court case. I also quoted in the submissions a number of Fair Work Commission cases which took very broad interpretations of what that - pertaining to the relationship between the employer and employee.

PN126

THE COMMISSIONER: Do you have those to hand up?

PN127

MR CANAVAN: I do, yes.

PN128

THE COMMISSIONER: All at once, please.

PN129

MR CANAVAN: Sure. So particularly the case of RailCorp v The RTBU, C2012/193, that was a dispute where his Honour Senior Deputy President Hamberger was asked to determine whether written commitments given by essentially a politician, the former transport minister, to unions in New South Wales promising enhanced redundancy conditions for a group of employees, whether that applied to RailCorp and was enforceable upon the organisation.

PN130

It's clear from that case Senior Deputy President Hamberger decided that that was a matter pertaining to the employment, and our thoughts - I guess why we think that is relevant is because it demonstrates the broad interpretation that the Commission has taken in regards to this exact dispute procedure and we believe that if the Commission can determine a matter about a letter from a politician to essentially a third party to another third party, a peak body for unions, about whether that applies to an employer and employee who are outside of those two parties, then surely the Commission should be able to determine a dispute about direct written commitments given by their industrial relations department to an employee promising them a particular entitlement.

PN131

THE COMMISSIONER: Well, SDP Hamberger becomes my panel head on Monday so I'll pay close attention to his decision.

PN132

MR CANAVAN: I don't think there's anything else I need to add on that, Commissioner. I think you are fairly across the submissions and the issue that's here.

PN133

THE COMMISSIONER: Perhaps I can summarise what I think your position is. You say that the issues of the taking out of the insurance in return for Mr Cockerill giving something up, or trading something, entitled him to the receipt of what he was supposed to get, and if he didn't get it through the insurance policy then it's up to Sydney Trains to make sure that he does.

PN134

MR CANAVAN: Yes, that's correct.

PN135

THE COMMISSIONER: As I said, not elegant, but it's what I think all this turns on.

PN136

MR CANAVAN: Yes.

PN137

THE COMMISSIONER: He paid for something. He didn't get it. Not his problem.

PN138

MR CANAVAN: Yes.

PN139

THE COMMISSIONER: Okay. All right.

PN140

Do you have anything in reply, Mr Woods?

PN141

MR WOODS: Just in relation to Senior Deputy President Hamberger's decision, that ‑ ‑ ‑

PN142

THE COMMISSIONER: You know it well, no doubt. You were ‑ ‑ ‑

PN143

MR WOODS: I know it well.

PN144

THE COMMISSIONER: You were the advocate, yes.

PN145

MR WOODS: Yes, and it may have been a point which we didn't run - didn't say, "You must decide if you have jurisdiction." In the end the case failed for two important reasons. One is that what a politician writes has got nothing to do with an employer-employee relationship, and secondly, to the extent that the unions sought to get an order that some redundancy be paid in accordance with that letter, contrary to the enterprise agreement provision, under section 739(5) the Commission was barred from making such an order.

PN146

So in the end there was no basis upon which an order or a dispute resolution in favour of the union was capable of being made, and while that was all dealt with together in one hearing rather than a separate jurisdiction point, it in part comes down to essentially the same issue.

PN147

The issue in the other case my friend has handed up, which is Hossain v RailCorp, again I know well. The issue there was whether or not a specific clause in the agreement in respect of some discipline matters excluded the breadth of the matters pertaining and the Deputy President found that it did not on a construction point. So again there was a question about whether or not it could be dealt with within the scope of the dispute clause.

PN148

So while again it was dealt with as one matter in whole rather than splitting, the question was is it caught by the enterprise agreement and dispute clause or not, and the decision was, yes, it is, it's not excluded, on the basis that clearly a discipline matter, which is what that was, between an employer and employee, that goes to the heart of the relationship and it was only a question whether it was excluded, and that's what that finding - that's all, Commissioner.

PN149

THE COMMISSIONER: Good, thank you.

PN150

MR CANAVAN: Sorry, Commissioner, can I just make one final - I have included this in the submissions so I don't want to go over it, but ‑ ‑ ‑

PN151

THE COMMISSIONER: Well, does Mr Woods agree to you making a final point?

PN152

MR CANAVAN: Sorry.

PN153

MR WOODS: I've got no problems, Commissioner.

PN154

THE COMMISSIONER: You may make your final point.

PN155

MR CANAVAN: Yes, just that, again, there was no mention of any insurer by name.

PN156

THE COMMISSIONER: I should have been quicker in reserving, shouldn't I, but go on.

PN157

MR CANAVAN: There was no mention of any insurer by name in any of the correspondence given to Mr Cockerill and we state that's because the identity of the insurer was irrelevant and that the letters demonstrate that the matter was clearly a relationship between the employee and employer, but also that the letters go so far as to advise the employee that to ensure salary commitments - a continuance claim can be dealt with expeditiously and in accordance with the RailCorp commitments, that he is to contact RailCorp industrial relations. So they even tell him that - that don't give him any indication he's got to go and deal with an insurance company, they tell him to contact RailCorp industrial relations in the event of a claim to ensure the commitments can be met. Thanks.

PN158

THE COMMISSIONER: Do you have anything in response to that, Mr Woods?

PN159

MR WOODS: That's simply a conduit process issue. It doesn't go to the substance, Commissioner.

PN160

THE COMMISSIONER: Yes. There being nothing further, I reserve my decision and the parties will be advised in writing in due course.

ADJOURNED INDEFINITELY [11.11 AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #SYDNEY TRAINS 1 SUBMISSIONS ON JURISDICTION......... PN13

EXHIBIT #ASU 1 SUBMISSIONS IN RESPONSE........................................... PN14