Quickenden, Ex parte; Re National Tertiary Education Industry Union & Anor P50/1996 [1996] HCATrans 422 (29 October 1996)

.D.

TRANSCRIPT

OF PROCEEDINGS

AUSCRIPT

Western AustraliaLevel 216 St Georges TcePerth WA 6000Phone [phone]Fax [phone]

HIGH COURT OF AUSTRALIA

TOOHEY J

No P 50 of 1996

RE NATIONAL TERTIARY

EDUCATION INDUSTRY UNION

and ANOTHER

EX PARTE: TERENCE IVAN QUICKENDEN

PERTH

9.33 AM, TUESDAY, 29 OCTOBER 1996

MR P.M. NISBET QC: I appear with my learned friend, MR P. GETHIN, for the Prosecutor.

MR R.L. LE MIERE: I appear for the University of Western Australia.

MR P.W. JOHNSTON: I appear for the Tertiary Industry Union.

HIS HONOUR: Yes, thank you. I hold a Certificate from the Deputy Registrar dated 22 October in these terms:

I have been informed by the Australian Government Solicitor, the first-named respondent in the above- named matter, that the first-named respondent does not wish to be represented at the hearing of this matter and will abide by any order save as to costs of this Court and, if permitted, of the Industrial Relations Court of Australia.

Yes, Mr Nisbet?

MR NISBET: Yes, thank you, your Honour. Your Honour, this is a return of an application for orders nisi for writs of certiorari and prohibition against the named respondents. And, in our submission, the ordinary rule should apply and this matter should be remitted through to the Industrial Relations Court of Australia.

HIS HONOUR: Well, there are a couple of things that might be said about that, Mr Nisbet. The first is that the draft order nisi seems to me to not only not accord as a matter of form with the relevant practice direction but to make assumptions that are really not warranted. Now let me see if I can just pick it up.

MR NISBET: I have a spare copy for your Honour.

HIS HONOUR: No, I have it, thank you. Are you aware of practice direction, it is number 1 of 1994, Mr Nisbet?

MR NISBET: Yes, your Honour - at least I thought I was until your Honour opened his remarks.

HIS HONOUR: The form of order nisi that you have filed is in terms that the "respondents show cause before the Full Court of the Industrial Relations Court". Now, the ordinary form of application for an order nisi, of course, is that the respondents show cause before this Court. And then, of course, if the matter is remitted, well then, the matter goes in that form to the Industrial Relations Court. But this is asking me to make an order that the "respondents show cause before the Full Court of the Industrial Relations Court".

MR NISBET: Yes, I take your Honour's point.

HIS HONOUR: I am not just taking a stand on the sort of technicality of it.

MR NISBET: Yes. No, I take - yes.

HIS HONOUR: But it does raise a real question as to what it is that is being sought by this application.

MR NISBET: Yes, I take your Honour's point.

HIS HONOUR: Yes.

MR NISBET: That had not occurred to me. I thought that, I must confess - - -

HIS HONOUR: Let us worry about that if and when the point arises.

MR NISBET: Yes. Your Honour, that point could be cured by an amendment.

HIS HONOUR: Oh, yes. But it does highlight the nature of this application.

MR NISBET: I accept that.

HIS HONOUR: Which is that you are asking this Court simply to remit the current application to the Industrial Relations Court.

MR NISBET: Yes, that is so.

HIS HONOUR: Right.

MR NISBET: I accept that.

HIS HONOUR: Yes. Now in the ordinary course, there being no Constitutional question involved, that sort of order would be made unless there was something very unusual about the situation. But, as I read the submissions from the respondents, what is really being put to this Court is that there should not only be no remitter but that the application should in effect be dismissed out of hand.

MR NISBET: There is no arguable case.

HIS HONOUR: Because it does not raise any question of substance.

MR NISBET: Yes.

HIS HONOUR: So that, I suppose, really is the matter that you have to turn your attention to.

MR NISBET: We need to get to. Yes, we accept that. Your Honour, accepting the defect in form - and I will move, if we get to that stage, for appropriate amendments and bring in an amended draft order nisi that addresses that point, if that is the only point remaining when we get to it. Can I begin by taking then your Honour to the affidavit in support of the motion of the Prosecutor, Dr Quickenden, sworn 16 September 1996.

HIS HONOUR: Yes?

MR NISBET: And, your Honour, I think the parties are agreed as to what the issue is between them. So can I take you directly to the point without any of the preliminary matters. Dr Quickenden annexes an agreement which was certified by the Australian Industrial Relations Commission in March of this year pursuant to the provisions of section 170MC of the Industrial Relations Act and that Certified Agreement now is exhibited and marked "B" to Dr Quickenden's affidavit.

HIS HONOUR: I can forget about exhibit A, can I?

MR NISBET: Yes, yes, for the purposes of these submissions, your Honour: A is historical; B is the certified document. And can I take you straight to 3A of that exhibit B. This clause warrants close scrutiny. It is this clause that is at the heart of the dispute between the parties. And it reads, as we can see:

This agreement shall be binding on the National Tertiary Education Industry Union and the University of Western Australia and applies to all persons employed on the academic staff of the University of Western Australia and who are members or eligible to be members of the National Tertiary Education Industry Union.

Now, there is no dispute that Dr Quickenden is eligible to be a member but was not at any material time a member - and he deposes to that fact - of the union. Then to continue in the construction exercise, the agreement further provides or the clause further provides:

...provided that this agreement in no way binds the University's general staff, persons employed in teaching the English language or persons involved in child care - - -

HIS HONOUR: What is meant by "University's general staff"?

MR NISBET: I presume the non-academic staff.

HIS HONOUR: Non-academic positions, is it?

MR NISBET: Yes, gardeners, technicians.

HIS HONOUR: Yes.

MR NISBET: People of that order, occupations of that order. Now, can I just stop there, your Honour, and draw to your Honour's attention the fact that already we have three discrete expressions talking about the scope of this agreement, the area, incidence and parties bound. We have the word "binding", the word "applies", and then in the second part, the proviso, we come back to the word "in no way binds", then we come to the third paragraph in the agreement, the second proviso:

...provided also that this agreement shall not apply to persons principally employed in the operation of theatrical venues used predominantly for commercial purposes, production companies engaged in the production of theatrical, musical or other entertainment on a commercial basis or the operation of child care facilities who are employed under the Western Australian Industrial Relations Commission Children's Services Private Award or Child Care Out-of-School Care Playleaders Award.

Dr Quickenden's concern as a tenured member of the academic staff of the University of Western Australia and a non-member of the National Tertiary Education Industry Union is that the University of Western Australia, as a direct employer, will purport to apply the terms of this agreement to him and bind him to it. Although it uses the word "applies", it means that it intends to hold him to this agreement when he was not a party to the dispute which ended up in the certification of the agreement.

Now, as I understand the submissions of the University and the union, they say that this clause cannot be read that way and that Dr Quickenden's concerns are illusory and not real. That is as I understand that is - - -

HIS HONOUR: Well, looking at the submissions filed on behalf of the University, paragraph 3, the last sentence reads:

The agreement does not and does not purport to impose obligations on non-members of the Union.

MR NISBET: Yes. In its terms it purports to apply to Dr Quickenden.

HIS HONOUR: Yes, well, it is almost a semantic question.

MR NISBET: It is indeed.

HIS HONOUR: What is the difference between applying to and binding?

MR NISBET: Yes, and that is Dr Quickenden's concern.

HIS HONOUR: Mr Nesbit, when you look at the Commissioner's reasons for decision he does not seem to have been in much doubt about what he intended. If you look at exhibit C - - -

MR NISBET: Yes, we accept that.

HIS HONOUR: And I do not want to get ahead of your argument but because it is relevant to what you are now saying, if you look at exhibit C: the reasons for decision, on the fourth page, because the pages are not numbered, the second-last paragraph, the Commissioner says:

I am prepared to certify the agreement if it includes a term that it does not apply either directly or indirectly to Dr Quickenden.

Well, that seems fairly clear, and then there is the further reasons for decision of 20 March 1996 and on page 2, about mid-way down the page, there is a sentence:

It should also be stated lest there be any misunderstanding as to the matter which is now presented for determination that it is common ground between all parties in these proceedings that the agreement cannot bind Dr Quickenden, that is, any aspect of the agreement which would purport to require action by him cannot apply.

I suppose that leaves open action by the University.

MR NISBET: Yes, and that is at the nub of Dr Quickenden's concerns, and that together with what is then - we accept that that is what the Commission has said, we accept that that is the way the argument went before him, but the fact of the matter was he then certified an agreement in these terms which on one reading binds Dr Quickenden. We say that you cannot separate out the word "applies" from the word "binds" in this context. That is the problem.

HIS HONOUR: Could this not have been resolved perhaps by going back to the Commission or by an appeal to the Full Court of the Commission where perhaps if it did turn upon the precise wording of the agreement some rectification, if it is the appropriate term, could have taken place?

MR NISBET: Well, could we take those one at a time. The Commissioner, knew by the time he certified the agreement that we still took objection to the word "applies." We had submitted to him that the word "applies" made no difference. When you still examined the clause there was no material distinction to be made between the word "applies" and "binds", so he had that submission before him, he had the notes of his judgments that your Honour has already referred to but nevertheless he proceeds to certify.

HIS HONOUR: Once the agreement is certified is there some provision in the Act whereby it can be uncertified in the sort of situation that has arisen here?

MR NISBET: Not by Dr Quickenden. The relevant provisions I think are 170MK. If you will just give me a moment I will check that. Yes, that is the effect of a certified agreement.

HIS HONOUR: Well, 170ML deals with variation.

MR NISBET: Yes.

HIS HONOUR: That does not seem to touch this point. What about 170MM?

MR NISBET: Yes:

After giving the parties to the agreement an opportunity to be heard, we were not a party to the agreement.

HIS HONOUR: I am not sure that it could be invoked by your client.

MR NISBET: Yes, MM(2)(b) on our reading where a person bound, but we say we are not bound and cannot be bound, so we are caught in a bit of a loop there.

HIS HONOUR: Yes, you are, are you not?

MR NISBET: The effect of it is that - if I can just go back to MK, your Honour, you will see the effect of the agreement means that it supplants any award or order of the Commission and it says in 170MK(1)(c):

A term of the agreement can be set aside or varied by the parties but only as provided in subsection (113)(2)(c) of section 170ML or 170MM.

And the grounds of variation then removing ambiguity or uncertainty but if you see that in MK(1)(b) but the problem is that you have got to get in under 113(2) first.

HIS HONOUR: 113(2)?

MR NISBET: Yes.

.D.

HIS HONOUR: Yes, I suppose from your point of view you would be quite content if I sent all this off to the Industrial Relations Court to sort out.

MR NISBET: Yes, absolutely.

HIS HONOUR: It has a certain appeal but the argument is still on foot from the respondents that there is really no substance in the application at all.

MR NISBET: I accept the nettle we have got to grasp, your Honour, but our difficulty is this, during the course of these proceedings before the Commissioner and which ended up in the certification of the agreement we drew the university and the union's attention to the line of authority that began with Wibrow as a case before these proceedings in the Commission even started and invited the university to tell us that it would not hold us to this agreement and the university declined to give us the relevant assurance. It then brought on its application for certification of the agreement in the Commission and again we drew their attention to this line of authority and the agreement, when it was first put before the Commission, contained the word "binds" in respect of persons eligible to be members.

Then we had the decision of Commissioner Smith in which he expressly invited the university and the union to make an express exclusion in the agreement as far as Dr Quickenden was concerned, Dr Quickenden not holding any brief with all of the other non-members of the union at the university and again we say that that invitation of Commissioner Smith's was ignored, so our worry is this, is that the university wants to say one thing to us and do another.

HIS HONOUR: Well, except when you say the university wants to hold you to the agreement it rather suggests that the agreement can only operate to your client's disadvantage. There is material in the affidavits filed in support of the third respondent that suggests that that is not necessarily so.

MR NISBET: Yes.

HIS HONOUR: And that there are terms and conditions introduced by this agreement which are beneficial to your client if he were to take the - well, not only if he were to take advantage of them but the proposition is that her has taken advantage of them.

MR NISBET: Yes, that is what they say, but they say there is a benefit and a burden but the point upon which Dr Quickenden made all of his submissions below was in terms of the disadvantage and he made no claim to the advantage that was to be proffered in the agreement by way of salary increases and the like.

HIS HONOUR: Do you mean he has not accepted that?

MR NISBET: No, I do not mean he has not accepted them but in terms of his objections to the agreement they were all in terms of the disadvantage and in particular in relation to clause 10 which he saw as an attack upon the system of tenure at the university, as I am sure your Honour appreciates.

HIS HONOUR: Yes.

MR NISBET: Now it seems to us that there is a question, a real question here of firstly what does this clause mean. If your Honour is of the view that my learned friends are right and the clause means what they say it means then we go away without an order nisi, but if it is arguable that the university can come back later and say that: this agreement binds you, Dr Quickenden, and in particular those terms of the agreement which interfere with your tenure, or could lead to a chain of events which interfere with your tenure, then the matter can be disposed of.

HIS HONOUR: The argument is that there has been an excess of jurisdiction, has there not?

MR NISBET: Yes, that is right.

HIS HONOUR: I mean, it is a claim for prerogative relief and I suppose it - - -

MR NISBET: Yes, and you can only get in on unless there is a jurisdictional issue, that is right.

HIS HONOUR: Well, before this Court, you mean.

MR NISBET: Yes.

HIS HONOUR: Yes, that is true, but that in turn raises another question: why should you not be left to pursue whatever remedies are available before the Industrial Relations Court - I am sorry, before the Full Bench of the Commission.

MR NISBET: Well, the difficulty as we see it now that the agreement has been certified we might be held out. We do not come within 170MK, ML or MN.

HIS HONOUR: Yes, I was not thinking so much in terms of variation but - - -

MR NISBET: And applying for the true construction, we do not have that remedy either, we are not a party to it. See, under section 4 of the Act a certified agreement has the same status as an award, or the definition of award, rather, includes certified agreement so we are not a party to an agreement, cannot come along and ask for the Commission to construe it, we are only an intervener in the proceedings.

HIS HONOUR: Yes.

MR NISBET: It might be appropriate to hear from my friend, sir.

HIS HONOUR: Yes, thank you, Mr Nisbet. Well, both you gentlemen appear to be getting to your feet. Who shall I look to first? Are you content, Mr Johnston, that I hear from Mr Le Miere first?

MR JOHNSTON: Yes, our submissions will be largely supplemental and short. They will build upon what he will put to you, your Honour.

HIS HONOUR: All right. Mr Le Miere?

MR LE MIERE: If it please your Honour. It is plain by now the heart of the matter is whether or not the agreement purports to bind the Prosecutor. It is our submission as put in the outline of submissions that it is plain on the face of the agreement and if not plain on the face of the agreement then one applies the usual principles of interpretation that it does not bind the Prosecutor. It is perhaps useful, your Honour, in looking to the language of the matter to have regard to something of the history of awards.

Mostly it arises in the context of awards in a string of cases before this Court that this Court has held that under the Industrial Relations Act and its predecessor the Commission and its predecessor may make an award which binds the parties and the disputants to an industrial dispute, but which cannot bind non-disputants, those who were not parties to the award and were not parties to the dispute, but that the award which is made may apply to persons other than the parties to the award or to the dispute which led to the making of the award.

By way of example, may I quote, your Honour, one of the more recent decisions. It is a case on my learned friend's outline, I did not cite it in my outline of submissions, but the decision of this Court in re Media Entertainment and Arts Alliance, ex parte Arnell which is reported in volume 179 of the CLR commencing at page 84.

HIS HONOUR: Mr Le Miere, just before we get too far into the authorities - I think it might be easier if I just adjourn for a moment or two, Mr Le Miere, to sort this technical problem out.

SHORT ADJOURNMENT

HIS HONOUR: I think before all that happened, Mr Le Miere, I was about to ask you before you took me to any of the authorities to just state exactly your client's position in this matter.

MR LE MIERE: Yes.

HIS HONOUR: Can I assume that if there were to be - or my view was that there was some question of substance there would be no objection to the matter going to the Industrial Relations Court.

MR LE MIERE: No.

HIS HONOUR: So that really your client takes its stand on the substantiality of the point sought to be raised by the Prosecutor.

MR LE MIERE: Yes, your Honour. We take the point that we are all here, that there is no point of substance. If the matter were to be remitted to the Industrial Relations Court it would incur further costs, further delay and uncertainty, it would introduce further uncertainty into the Industrial Relations at the university and all of those matters ought not to be permitted given, in our submission, that there is no substance to the application.

HIS HONOUR: Yes, thank you.

MR LE MIERE: I have taken your Honour to the re Media Entertainment Arts Alliance, ex parte Arnell case for the purpose of providing a brief summary of what now is, with respect, trite law and seems to be common ground between the parties, and if I might firstly express it before taking your Honour to the case, it is the proposition that is variously put in our outline of submissions and my learned friend's that, as I put to your Honour just before we broke, that in the context of awards and similar principles apply here, the Commission, and indeed its predecessor, as I put to your Honour may make an award which applies to non-members of the union party but which does not bind them.

Now what is meant by that is made plain in the cases referred to in my learned friend's outline of submissions and indeed in the case that we cite the Finance Sector Union case and the ex parte, I think it is the Victorian Clinic case, and in the re Media case I am going to take your Honour to shortly. What is meant by that is that in the case of a non-member of the union party the agreement does not, or the award does not bind him, that is it does not confer any rights or create any obligations upon that person.

However, it may apply to non-members and what is meant by that is that the parties to the agreements are obliged, in particular relevantly the employer, is obliged to observe the terms of the award or agreement in relation to employees including non-member employees. And your Honour may be familiar with the cases going back, I think coming to the Metal Trades case in particular, and the logic or the rationale behind that being that the employees have - sorry, the union members have an interest in the terms and conditions of employment of non-members because that affects their own employment and industrial relationship with the employer.

In any event that, it seems, is not only trite law but common ground between the parties and it is the background against which this case, this application must be viewed. I was going to take your Honour to the re Media Entertainment and Arts Allowance case, both for the purpose of providing a quick summary of that and, your Honour, for the purpose of demonstrating the language which is used, and that is a preliminary to coming to the clause itself which gives rise to this application.

.D.

In the Media Entertainment Arts Allowance case, or this particular one of them, was a case involving proceedings in the Industrial Relations Commission. The Commission was proceeding to make an award involving or binding the Hoyts companies and the union parties and their members. The award or proposed award contained provisions dealing with rates of pay for junior employees. A number of junior employees who were not members of the union applied to the Commission to be heard in relation to that matter.

The Commission indicated that it was going to proceed to make the award, and the junior employees, or some of them, applied to this court for prerogative relief. And that is the background, but I only wanted to take your Honour to a brief passage which summarises the principle and as an illustration of the language which we say is appropriate. If your Honour would go to page 92 of the joint judgment of the Chief Justice and Brennan, Dawson and Gaudron JJ, at page 92, the last paragraph on that page, their Honours said:

The award which the Full Bench decided to make was an award in settlement of disputes between the Hoyts companies and the unions. As such ...(reads)... and their right, if any, to put a case to the Full Bench depends on other considerations.

And that is a passage I wanted to take your Honour to. Your Honour may be familiar, the statutory provisions which are being referred to which confer upon non-members of the union a right to enforce an award on an agreement are, in the current Act, sections 179 and 178(5), paragraph C(a), which provide in effect that a person - sorry, taking section 179, where an employer is required by an award to pay an amount to an employee, the employee - sorry, your Honour, section 179 - the employee may in effect bring proceedings to recover the amount of the payment.

HIS HONOUR: It is easy to see that principle operating in that sort of situation because it is covered by the statute. How does it apply, do you say, in relation to the agreement that has been certified?

MR LE MIERE: Well, for example, in relation the agreement provided for a 21/2 per cent - I forget 21/2 per cent on what - but in general terms a 21/2 per cent pay increase. Now taking that matter, the agreement itself confers no rights upon non-members of the union, because they are not parties to the agreement and cannot enforce it as such. however the agreement applies to their employment, so that the employer, the university, is required to pay them that amount, and so then section 179 of the Act provides that a non-member of the union being a person in respect of whom the employer is required to pay an amount may recover that amount from the employer, the university.

And as the court said in the Media Entertainment Arts Alliance ex parte on our case:

In doing so that is not a right conferred by the agreement, but one conferred by the statute.

HIS HONOUR: But the concern that has been expressed here is not in relation to the enforcement of rights, but to the imposition of obligations which it is said may arise and affect the Prosecutor, notwithstanding the terms of the agreement.

MR LE MIERE: Yes, well, if I might put it as explicitly as I think I can. The agreement does not confer upon the university authority to do anything with respect to a non-member of the union. If, for example, there was some term of the agreement which either does or is perceived by a non-member of the union to impose a burden upon the employee - and your Honour may have observed in this case the Prosecutor complains that one term of the agreement provides for a process of review or supervision.

HIS HONOUR: Is that clause 10?

MR LE MIERE: 10(f), I think it is, your Honour. And so what the Prosecutor says is that clause of the agreement imposes some burden upon him. He says that that derogates or is a reduction of his employment conditions. Now if the university were to seek to review him, or to supervise him in a way in which provided for by that clause in which he says he does not wish to occur, the university cannot rely upon the certified agreement as its authority to do that, because it confers no obligations upon the employee.

It may, of course, find that authority elsewhere, and indeed the university make it quite plain, the university I am not saying - the university, that it does not and will not have that right, but the university does say that the agreement does not confer that right upon it or that authority upon it, because as the string of cases being referred to make plain, a person who is not party to the award or to the agreement - well, put it the other way round - the agreement does not confer upon a non-party rights nor impose upon them obligations.

HIS HONOUR: Can I take it that there is no other industrial coverage of academic staff?

MR LE MIERE: No.

HIS HONOUR: Do you mean, "no" I cannot take it, or "no" there is not any?

MR LE MIERE: No, I am sorry, your Honour can take that. Industrial coverage by that, your Honour, means no other union that covers industrial staff, no other award or - - -

HIS HONOUR: No, no, I did not mean that at all. I mean, is there any - when you said that the university might find authority to regulate terms and conditions of employment outside this agreement, you could be referring to common law, you could be referring to some contractual arrangement, you could be referring to some other industrial regulation.

MR LE MIERE: I am not referring to any other industrial regime, I am referring to the very matters that Dr Quickenden canvasses questions, the common law position, of course the statutes of the university and so on. And indeed, your Honour, we say, with respect in our outline of submissions that on one view this is either an exercise in semantics, or one to in a sense raise through this forum matters which are really matters of contractual argument, or may be matters, contractual arguments between Dr Quickenden and the university.

That may be for another day if they take the particular matter that has been referred to, the question of reviews and supervision, if the university and Dr Quickenden were at odds on whether or not the university was entitled to undertake such an exercise and Dr Quickenden was obliged to submit to it, then that is a matter that would be resolved not through this court by prerogative proceedings, but by the usual course through the civil or industrial tribunals.

HIS HONOUR: Yes, I follow.

MR LE MIERE: Now, the whole purpose for taking your Honour to that summary of the case is I again draw the distinction between - sorry, your Honour - the cases and then drawn this distinction between the award binding the parties, but applying to non-members of the union party. That is the very language which is used by the majority in the re Media Alliance case that I have taken your Honour to, and it is against that background then one must approach clause 3 of this agreement, which your Honour has been taken to.

It is in exhibit B of Mr Quickenden's affidavit, on page 3 of the agreement itself, clause 3(a), your honour will see it provides - perhaps I should, just as some sort of assistance, your Honour will see the heading is: Area Incidents and Party Bound - some indication it is dealing with a number of matters in that one clause. And it provides:

This agreement shall be binding upon the union and the university.

So that is the first part we say, it says who it is binding upon, who the parties to it are and who are bound by it. Then it goes on to say in respect of which employees it applies to, because again manifestly, your Honour, to say that the union and the university are bound by it is to take you one stage, but then the question of course, bound by what in respect of which employees is the university bound to observe these terms and conditions, and that then one reads on, it applies to all persons employed on the academic staff, and for the removal of any doubt, who are members or are eligible to be members of the union.

Now we say, if one starts by applying the principles of interpretation, words are to be given their natural and ordinary meaning, and we say, with respect, that it is perfectly plain. The words are that the agreement shall be binding upon the union and the university, but it applies to all members of the academic staff, and the context that I have taken to your Honour to, the meaning of that is quite plain.

HIS HONOUR: Well, in form it resembles the sort of coverage provision that one ordinarily finds at the outset of an award, except it is rather curious perhaps that the provisos expressed in terms of binding, one might have thought that that is part of the coverage, so you would be saying it does not apply to, rather than it does not bind.

MR LE MIERE: I am afraid, your Honour, the explanation for that comes from the process that this court has remarked on a number of occasions, the way in which agreements come to be written and where they are taken from and based upon other agreements, and so on. Now that then has historical reasons that the form of words are taken from elsewhere, but leaving that aside of course the proviso talks about not binding people again, so in a sense it neither - saying it does not bind - - -

HIS HONOUR: But what it really means is not this agreement does not cover these people.

MR LE MIERE: Well, it does not cover them either because they do not come under - if one goes back to the first clause - - -

HIS HONOUR: Yes, I understand the argument.

MR LE MIERE: And perhaps, if your Honour is aware, the agreements may apply to more than one union, and may have - where at a single institution, at various Victorian universities, you may have the union representing the general staff as well as the academic staff, may all form a single bargaining unit and give rise to one agreement. Now that does not apply here, but the language we see here is taken from agreements elsewhere, but albeit leaving that to one side, we say in any event to say that agreement does not bind the university general staff, whilst in a sense being redundant, does not detract from the first main clause or provision of the clause.

.D.

If there was any doubt about the matter, that is, if on the natural and ordinary meaning of the words there was any ambiguity about it or any doubt about it, and we say there was none, but if there was, and again we say, with respect, your Honour, the principles of interpretation require that any ambiguity be resolved in construing the agreement in a way which is lawful and within power rather than unlawful and outside of power. And again, plainly, the position is quite plain that there is no power or at least, it is not argued by us that there is any power to bind a non-party to the agreement.

Thirdly, again if one needs to, one can go back to the reasons for decision given by Commissioner Smith when handing down or certifying the agreement, and your Honour has already drawn attention to that passage halfway down page 2 of the reasons of 20 March. Sir, we say at the end of the day, the words are plain and with respect, we say what else, how else - I suppose it could be expressed in different ways, but there is no way that immediately occurs to us in which one could express who is bound by the agreement and to whom the agreement applies in any clearer language than that which is employed.

Secondly, we say that if there were any ambiguity or doubt about it, then the construction which is lawful and within power is to be preferred over that which is not and thirdly, one may have resort to the decision of the Commissioner when certifying the agreement which again, we say, shows that that is the meaning of the award. Sorry, the agreement. Given all that, we say that there is no point to this at all. Next we have set out in the outline of submissions matters referred to by the Deputy Vice Chancellor in his affidavit, pointing to matters of prejudice that will be suffered if this application goes forward, even if the matter is, as it were, passed on to Industrial Relations Commission, that will further delay or continue in the area of uncertainty about this agreement.

It will of course occasion further costs to the parties in having to go to another court on another occasion and incur the costs of arguing the matter again. Further, it will cause disruption as the Deputy Vice Chancellor puts, and in the industrial relations, manifestly the sort of examples, of course, that are obvious is that it is very difficult for the parties, that is, the parties to the agreement, those who are bound by it, the union party and the university, to negotiate further agreements when there is, through the courts, some uncertainty hanging over the legitimacy or validity of the existing agreement. Finally, your Honour - - -

HIS HONOUR: Just before you leave that point, I suppose that is true in the way in which the application is presently framed, because it seeks to quash the decision. It does not, as it were, seek to extract the Prosecutor from the ambit of the decision?

MR LE MIERE: No. No.

HIS HONOUR: Sorry, you were going to say something, "Finally"?

MR LE MIERE: Yes. Well, perhaps I need to backtrack. I think your Honour is probably aware of it, but I must assume that in the affidavit the Deputy Vice Chancellor, he refers to the fact that the agreement was certified back in March, and that the parties, the university, the union and the employees have been operating under it since March. Both the salaries have been paid under the agreement on the basis that it is valid and applying and the other lists of matters that are referred to in paragraphs 10 and 11 of the Deputy Vice Chancellor's affidavit have been organised on the basis of the agreement applying.

In those paragraphs, Mr Robson sets out a number of matters that are dealt with in the agreement. Your Honour sees them, and so they deal with matters such as leave, long service leave and the like, and all these matters have been organised on the basis of the agreement since March. And that goes to two things, both the question of prejudice and the other discretionary matters in relation to delay and - I used the word acquiescence in the outline of submissions. By that I do not mean acquiescence in the sense referred to by my learned friend of acquiescence to the jurisdiction of the court, but rather another aspect of delay.

What the Prosecutor has done in this case is to wait until 3 days short of the 6-month period provided by the rules, the period in which the application must be made, and 3 days short of that 6-month limit this application is brought. And in the interim the parties at the university have been applying the agreement. All those things have been put in train to now, with the disruption that will be caused if that was to be set aside, and the uncertainty which arises from an application remaining to set it all aside. Also in that vein we have put to your Honour the fact that the applicant, the Prosecutor, has taken the benefit of the agreement in some exchange between your Honour and my learned friend about that.

The position which the Prosecutor appears to take is that he may take the benefit of some changed arrangements offered, as he would put it, by the university without accepting the burden of them. Now again, I do not wish to argue matters of contract and the like today. It is a matter only going to the court's discretion, and we say that ...(indistinct)... has seen fit to, as I say, on the one hand wait until almost the 6 months are up and at the same time to have accepted the benefit during that 6 month period. Another matter that we refer to in the outline of submissions which your Honour touched upon in a slightly different context is the availability of other methods of relief to the applicant and the Prosecutor, and the alternative relief which we say was to bring an appeal.

Your Honour canvassed my learned friend, the possibility of applications to vary the agreement or to obtain interpretation of it, but we say the obvious course was for the applicant to appeal against the decision which he complains - - -

HIS HONOUR: You mean appeal to the Full Bench of the Commission?

MR LE MIERE: Yes. I am sorry, your Honour, yes, to the Full Bench of the Commission.

HIS HONOUR: But what would be his standing, Mr Le Miere, to do that?

MR LE MIERE: Well that, we say, the appeal provisions are dealt with in section 49 of the Act and - I am sorry, 45 with your Honour's pardon, section 45 of the Act, and if your Honour goes to the scheme of subsection (1), it says:

An appeal to the Full Bench would lever the Full Bench against.

Now, it is correct that there is a specific right of appeal against the certification of an agreement, so on, but if your Honour goes down, we say the relevant provision is (g):

A decision of a member of the Commission that the member has jurisdiction or a refusal or failure of a member of the Commission to exercise jurisdiction in a matter arising under this Act.

So we say that the Prosecutor's argument is that the Commissioner assumed, exercised jurisdiction where he did not have it. Now, as to the standing, your Honour, that is dealt with under subsection (3) and paragraph (d) provides:

In any other case by an organisation or person aggrieved by the decision or Act concerned.

Now, a very similar matter was the subject of a very recent decision of the Full Court of the Federal Court in Tweed Valley and Ross, which is referred to in our outline of submissions, and it is reported in the ALR, volume 137 of the ALR, commencing at page 70. That was a case arising out of the approval of an exercise flexibility agreement, but in our submission, to all intents and purposes, the relevant provisions relating to enterprise flexibility agreements and certified agreements are the same.

And one of the questions - I may skip over the somewhat tortuous process by which the matter came to the Full Court of the Federal Court - one of the matters which fell for decision was whether or not a person who was not a party to the enterprise flexibility agreement had standing to appeal to the Full Bench of the Commission against the approving of the enterprise flexibility agreement. That matter is dealt with in the joint judgment of Wilcox CJ and Marshall J, commencing at page 84.

Your Honour will see the heading, "The existence of a right of appeal, counsel submissions" and then on page 86, their Honours, at the bottom of that page is the subheading, "The existence of a right of appeal, conclusions" and might I not read the 21/2 pages but inform your Honour that their Honours arrived at the decision that section 45(1)(g) provided a route of appeal. Perhaps one can pick up, I think one can adequately pick it up by going to the penultimate paragraph on page 89, down to the heading, "Person aggrieved".

Your Honour will see there, in essence, their Honours arrived at the conclusion that section 45(1)(g) provided a route of appeal and then, your Honour, under the heading "Person aggrieved", the next page and a bit, their Honours address the question of whether or not the person had standing under 45(3(d) and come to the conclusion that they do. And the argument essentially put against them was that because other provisions of the section confer and express right of appeal in relation to the certifying approval of the agreement, and confer the right of appeal on the parties to it, then in essence by right of implication - by way of implication, the general power is cut down and such a person does not have a right.

But their Honours found that that is not so and that 45(3)(d) applies such that a person who is not a party to the agreement, in that case the enterprise flexibility agreement but in our case the certified agreement, is a person with standing under that paragraph of the subsection.

.D.

So we say that is the route which could have and should have been followed. Again in the outline of submissions we make reference to the decision of former Chief Justice - - -

HIS HONOUR: I do not think you need worry about reading that, I am familiar with that passage.

MR LE MIERE: Yes. And we say that applies to this case. So, in essence, those are the reasons why we say the matter should not be remitted but at the heart of the matter, your Honour, we say that there is very simply nothing to this argument. The applicant Prosecutor requires in order to start its argument that the word "applies" be read to mean "binds". And we say that that is both a misuse of the English language and in its context is plainly wrong so that there is simply no substance to the matter and for those reasons that we put to your Honour, we submit that this application should be dismissed at this time.

HIS HONOUR: Yes, thank you, Mr Le Miere. Mr Johnston?

MR JOHNSTON: May it please the Court, as I indicated a short while ago, we have common ground with the submissions that have just been put and, in fact, at the end of the short summary of outline that I provided to the Court we indicate there that the National Tertiary Education Industry Union supports the submissions put by the university. It is perhaps with just a few matters of emphasis that - in clarification, that I should address the Court. The first is to indicate something that did arise before. It was the question of coverage in the Eastern states.

The coverage of agreement of a generic kind covers, of course, general staff at the more populous universities such as the ANU and those in Victoria, would cover a whole range of persons outside the academic staff; technical, computing, administrative, clerical and the like. Therefore there is the requirement that in Western Australia where the coverage, of course, that the local agreement would draw as much as possible on common ground but would not apply - seek to cover the same range of persons that the Eastern states version would. We support what Mr Le Miere, my learned friend, has put regarding the critical aspect of construction. I think your Honour referred to it as the substantive point.

Of course, you will glean from both my learned friend's submissions and ours, we say there is no substance to it, it is simply a misconception on the part of the Prosecutor reading things into both the agreement and the decision of the Commissioner which are simply not there and particularly the decision of the Commissioner is very much alive to the difference between binding and that of application. The other aspect that we would support the other respondent in is this; that as a matter of discretion one can view this in two ways.

There is the primary discretion to remit the matter under section 44 to the Industrial Relations Court but we say that that could be judged, or the merit of it can be measured by the discretion to grant the principal relief. Therefore the matters which my learned friend has raised about both the potential disruption if the matter is set to nought, the decision certifying the agreement is nullified those points go both to remission and to the granting of relief.

HIS HONOUR: How do they go to remission?

MR JOHNSTON: Well, we say that one is really parasitic on the other. If the relief should not be granted, this Court is as competent when looking at that residual discretion which goes to whether the order should be made, this Court is as competent to judge that as the lower Court and if this Court were moved to the conclusion that because of both the element of disruption and also the element of the accessibility to alternative remedies whenever some situation arises where the Prosecutor finds himself wanting to raise the issue whether they be contractual or otherwise, both as we say, disruption and accessibility would dictate that and given the length of time and the other factors of delay, there should not be a grant of the relief, particularly as we say because there was access to appeal provisions which were not used.

So really I am only just going over the other ground but we would see, for example, I refer to only one authority and I do not intend to read to your Honour but the element of both disruption and alternative remedy comes through very clearly in what the High Court has said in the case of The Queen v Ross Smith ex partie Green. Although he came to a different conclusion in the end the judgment of his Honour, Dean J, at pages 225 to 6, crystallise those two elements that we have referred to, both disruption and access to alternative remedy.

HIS HONOUR: But was that in the context of the remitter or - - -

MR JOHNSTON: No, it was not in the context of the remitter it was the original context.

HIS HONOUR: - - - simply in the context of whether relief should be granted.

MR JOHNSTON: Yes. Just simply going to the - what I call the residual discretion to refrain from granting a prerogative order of mandamus or prohibition. The only other aspect - or two, there would be two short points we would otherwise make. My learned friend put disruption and uncertainty to you largely in the context of what the immediate consequence if this were to go back to the Commission after the Industrial Relations Court. The immediate consequence is on the existing agreement but it would also be disruptive of any further negotiations prospectively which use the certified agreement as its platform.

So we would say that it is not just simply the immediate consequence but also the disruption to ongoing negotiations which ought to figure or be weighed in the exercise of discretion. The aspect that the Prosecutor has been taking the benefit to date, we would say, really raises almost an equitable situation which would again go to discretion, it being awkward to describe it as an estoppel, it really is not an estoppel but we would say that having received the benefit over a period of time it does not lie in the Prosecutor now to agitate the issues that are before the Court.

HIS HONOUR: Well, that really depends upon how much substance there is in the primary proposition, is it not. If it appeared highly arguable that the Commissioner had acted in excess of jurisdiction it is not likely to stand in the way of some form of - well, at least interim relief in the sense that the matter would need to be determined by a court.

MR JOHNSTON: Yes, we would accept that your Honour. The word "clear" has come up in a number of these cases about the exercise of discretion and certainly if the excess of jurisdiction or the want of jurisdiction were clearly evident then we would say that it would be a strong factor but not necessarily a conclusive factor in the exercise of discretion. But in any event, and just the extent to which the point has been debated today shows that there is no clear basis to say there is an excess of jurisdiction. Those are our submissions, your Honour.

HIS HONOUR: Yes, thank you, Mr Johnston. Mr Nisbet, do you want to say anything by way of reply?

MR NISBET: Yes. If your Honour will hear me by way of reply I want to say a few things.

HIS HONOUR: I will.

MR NISBET: Firstly, in dealing with the general discretionary issues raised by our learned friends, Mr Le Miere and Mr Johnston, can I first make the point that the form chief justice's remarks in the CFMEU case that I think is referred to by my learned friend, Mr Le Miere, pre-date the remitter, the availability of remitter since the coming into operation of the relevant provisions of the Act. We would suggest, with respect, they are not appropriate considerations now. It is a different residual question in relation to those issues.

The second point is, with respect, if we can pick up on your Honour's remarks to our learned friend, Mr Johnston, in relation to if there is a serious issue to be tried in relation to the exercise of jurisdiction by the Industrial Relations Commission then the fact that these proceedings were instituted 3 days short of the 6 month period provided in the rules with respect is really neither here nor there. They are the time limits provided, we are within them and we are entitled to ask for relief if it is appropriate and if there is a serious questions.

As to the benefit versus burden type submission, what the university and the union appear to be saying is that whilst the agreement does not bind Dr Quickenden it is applied to him in a non-binding way so that he has had the benefit of some pay increases which he has not returned or has not taken back. That is a reason why he should not be allowed to come and say that the agreement should never have been certified in the first instance when he took them new because of Dr Quickenden's intervention in the proceedings, the view he took about the agreement has not been binding and when each of them have made submissions to you that they do not intend the agreement in reality to bind him.

So it is bit paradoxical that they now rely on the fact of having applied the benefits or some of the benefits of the agreement in that situation to Dr Quickenden and want to, as it were, pull themselves up by the boot straps and say that that is a discretionary fact to weigh if the matter is evenly balanced I presume, is the tenor of the submission - why you should not exercise your undoubted discretion to grant the relief.

HIS HONOUR: If I can just take you back to your earlier point to see that I understand it. You were saying, in effect, that some of the earlier decisions as I understand you, refusing prerogative relief by reference to discretionary considerations might need to be looked at in the light of what is involved here which is an application to remit, is that what you are saying?

MR NISBET: Yes.

HIS HONOUR: Well, let us just test that for a moment by reference to the availability of an appeal under the Industrial Relations Act to the Full Bench of the Commission. If it was clear as it could be that there was such a right of appeal, is that a reason why the Court should dismiss the application without taking, even considering the next step of whether there should be a remitter or otherwise?

MR NISBET: No, with respect, we say - - -

HIS HONOUR: Why is that?

MR NISBET: Well, for two reasons. Firstly, it is not clear that there is a clear right of appeal there is a - - -

HIS HONOUR: No, my question was: if there is clearly a right of appeal?

MR NISBET: Well, if there is clearly a right of appeal, then the introduction of the availability of remitter to the Industrial Relations Court of Australia as opposed to going ahead here, I think does impact, or we certainly would submit does impact upon whether you should decline relief on a discretionary ground because of that. I am not expressing this very well -

.D.

it seems to us to be not a weighty consideration to choose between the Full Bench of the Industrial Relations Commission of Australia and the Full Bench of the Industrial Relations Court of Australia.

HIS HONOUR: No, but it might be a weighty consideration to discourage applications coming directly to this court from a decision of a single Commissioner, thereby seeking through remitter to then go to the Industrial Relations Court and in effect bypass the Full Bench of the Industrial Commission.

MR NISBET: Yes, with respect I can see the force of that comment and that may be a discretionary consideration, but what we would say in answer to that is you would need to be pretty plainly satisfied that there was no arguable case before you that would bring down a consideration like that in - - -

HIS HONOUR: No, not necessarily. Might need to be satisfied that it was not clear that there was a right of appeal, but if there was clearly a right of appeal I can see some quite powerful reasons for discouraging applications being brought as a step to obtaining a remitter and in the course of which bypassing the Full Bench of the Commission.

MR NISBET: We accept that.

HIS HONOUR: Please say about the right of appeal. It is contended for by Mr Le Miere - - -

MR NISBET: It is not a right, it is a conditional right which you can only appeal with leave so we would had to have got leave.

HIS HONOUR: Yes, so would anybody. That is not a very powerful argument, is it?

MR NISBET: Well, it is the first one that - - -

HIS HONOUR: Do you want to take time to think about it?

MR NISBET: Well, now that it has been categorised as not all that powerful, your Honour, I might.

HIS HONOUR: Under section 45 leave is required in the case of any appeal with the rider contained in subsection (2).

MR NISBET: Unless the full bench certifies that it is - well, not certifies, expresses the opinion that it is of such importance in the public interest it should be granted.

HIS HONOUR: My question was more directed at the language of section 45 itself both as to circumstances in which an appeal may be brought and the standing of someone to institute an appeal and whether you were saying on either score the appellant process was not available to your client.

MR NISBET: No, I do not think I could really advance that. I would have to say that on a fair reading of the section, your Honour, that taking it as read that the intervener would be just the same as a party seeking leave to appeal from the decision of Commissioner Smith under section 45(1), then certainly section 45(1)(g) and the decision in Tweed Valley v Ross demonstrates that there would be a failure to exercise jurisdiction or wrong exercise of jurisdiction which could go before the full bench and one would have to also, I think, concede that the Dr Quickenden as intervener was a person aggrieved by the decision. I think I would have to concede that.

So, the best I can do with that argument is to meet it by saying that we would have to qualify by getting leave and certainly that puts us in the ruck, as it were. But again, your Honour, if the consideration in refusing prerogative relief is to discourage attempts to leap frog, as it were, the Full Bench of the Australian Industrial Relations Commission by coming to this court and then seeking a remitter to the Industrial Relations Court of Australia, whilst that might be a live consideration there is nothing in the papers that suggest that that was an intentional course of conduct by the intervener.

HIS HONOUR: I do not think it involves an inquiry into the motive of the person seeking prerogative relief, it is simply - - -

MR NISBET: A consequence.

HIS HONOUR: Well, it is an avenue that is available. Why was it not taken? Should it not in principle be taken before an application is made to this court. That is the way I would look at it.

MR NISBET: We would then be met with this situation, as I would apprehend it. In the event that the Prosecutor was still anxious to have his rights defined, viz a viz this certified agreement, he would have to go back and apply for leave to appeal out of time to the full bench, a right that was arguably, by the time these proceedings were instituted, in some doubt as to whether they would extend time.

HIS HONOUR: Well, that cannot be very persuasive, can it, because that is really in effect saying because we have taken a step which may have been premature, namely seeking prerogative relief in the High Court, we have put ourselves out of court, as it were, before the Full Bench of the Industrial Commission, therefore that is an argument for entertaining our application. I mean surely the way you look at it is if you go to the Full Bench and are unhappy with the result there, then you explore whatever other avenues are available.

MR NISBET: Yes, but I suppose the difficulty is whether a coincident ...(indistinct)... is available to the Prosecutor. One is not excluded by the other and one might have thought certainly at first glance that with the institution of the remitter procedure those considerations that were expressed by the former Chief Justice in the CFMEU case had perhaps been overtaken by the making available all of that new remedy, as it were. And it may serve the interests of justice, in the event that your Honour was minded to - that there was a point worthy of argument in any event, it may serve the interests of justice to grant the relief, but indicate that in future the court will look upon these sort of applications as somewhat askance and will expect the parties, notwithstanding the availability of remitter, to exhaust their remedies elsewhere.

But as far as I am aware the point has not come before the court within this context since, although - - -

HIS HONOUR: But that may be because in each of the cases that have come to this court in which a remitter has either been ordered or not ordered, the step has been taken of an appeal to the full bench and it is from that decision that prerogative relief has been sought.

MR NISBET: I concede that we do not know the explanation for that, but again those remarks are predicated by your Honour needing to be satisfied that there was a point worthy of going forward and I would ask you in the balancing exercise of your discretion to just take that into account. Now, can I mention a couple of other things. In terms of the other matters which are set against us in terms of the exercise of your discretion, the university and the union claim some disadvantage in going forward with their negotiations. Well, I find that argument, with respect, a little difficult to understand.

If the university and the union do not want to bind non members of the union then they are surely only negotiating for members about whom there is no question that the agreement is properly certified. It is only improperly certified insofar as it binds, by using the word "applies," non members. So, there is nothing to stop the university and the union continuing to negotiate and there is nothing - - -

HIS HONOUR: I mean, that overlooks something Mr Nisbet, does it not? It overlooks the terms of the order nisi which seek to quash the decision and if that relief were granted within the terms asked for, the agreement itself would be no longer extant.

MR NISBET: Yes, your Honour is correct, with respect.

HIS HONOUR: I mean, the parties would be starting from scratch, as it were.

MR NISBET: Yes, that is so, but again, the only basis upon which it is being - when I say the only basis, an important basis, the basis that it has been called into account to be quashed is because of its purported binding or applying to non members.

HIS HONOUR: Oh, yes, I understand that, but I was looking at the consequences in the light of your argument about ongoing negotiations.

MR NISBET: Yes. Well, your Honour, I have turned my mind to see if there is a way in which you can have an agreement certified only in part, or in which you can challenge the certification only in part and therein I think lies our difficulty.

HIS HONOUR: Yes, I see that.

MR NISBET: It would be very difficult. In fact, we began by looking to see whether we could quash so much of the agreement as purports to apply to non members, but the difficulty with that approach, of course, is that the certification procedure is of - it is the certification that is the thing and that is what is under challenge. I do not think you can have a partial certification, that is the problem. But again, with respect, your Honour is correct to draw our attention to the fact that there is this - that that would create an element of uncertainty which again we would concede.

Can I come back to the question - the real question between the parties and that is: does it apply or does it bind, or are those terms interchangeable and is it not offensive to the language to read the word "applies" as binding and you really must get the sense of that from the document itself. And notwithstanding that my learned friend, Mr Le Miere, was plain to say, or was heard clearly to say was that the words are plain, how else could they be expressed in any clearer language.

Could we suggest just at the outset, the way in which clearer language could be employment is by the simple mechanism of deleting the phrase "or eligible to be members". That would make it plainer. Why would the agreement want to advance beyond its membership at any one time. Now, we know that unions - - -

HIS HONOUR: As I recall most awards have such a provision.

MR NISBET: Yes, and we accept - in general terms the reason why the High Court has on many occasions said that awards that purport to go past is to protect the existing conditions of the union members and they have a legitimate industrial interest in protecting those conditions.

HIS HONOUR: I was not thinking so much of the , as it were the constitutionality of it, but simply that is the way in which most award provisions are expressed.

MR NISBET: More as a form than - - -

HIS HONOUR: Well, no, I do not say as a matter of form. It is clearly there is a real point in having it expressed that way, but this seems to have borrowed that sort of language, not surprisingly. Rather unfortunately, perhaps, it has this proviso in the middle which really is I think a matter of coverage rather than binding.

MR NISBET: The trouble is that it confuses the meaning.

HIS HONOUR: Oh, yes, makes it less clear than it would otherwise be.

MR NISBET: And your Honour has already been taken to re Finance Sector Union of Australia case and your Honour is one of the authors of the majority judgment in that case, so you would, I expect, find the argument there fairly persuasive, but the question really is, as has been said before, the purpose of which the extension to non members is required seems to be the fulcrum about which the ability to apply to non members revolves. And in this case, can I ask you - my learned friend Mr Le Miere has already taken you to clause 10 and 10(f), but can I draw to your attention a couple of other clauses that it does not stop - the Prosecutor's concerns do not stop at 10(f). 10(d) is a matter of concern:

Every appointee engaged on a tenurable appointment.

Your attention has already been taken to 10(f). 10(g) - and in the very language of these sections, your Honour, nothing differentiates between members and non members.

.D.

The words are "appointee, employees"; "appointee" in (d), "employees" in (f), "employees" in (g) and then again there is 10(i) an "employee". An interesting clause seeing as the provisions of the Act say that the agreement supplants and replaces any award, but that is by the by. Can we also point out two other clauses, being the major ones of concern, simply to highlight our difficulty.

Clause 31. In its terms clause 31 seems to exclude non-union members but 32 does not:

The vice chancellor or his nominee may direct an employee to carry out such duties as are reasonable and within the limits of an employee's skill, competence and training.

So again we return to the substance of the dispute and unless there is anything further your Honour wishes to put to us, they are our submissions.

HIS HONOUR: Thank you, Mr Nisbet. I will consider my decision in this matter. The Court will now adjourn.

AT 11.21 AM THE MATTER WAS ADJOURNED

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