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C2001/ 1607 , Transcript of Proceedings [2001] AIRCTrans 503 (9 April 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 10, MLC Court 15 Adelaide St BRISBANE Qld 4000
(PO Box 38 Roma St Brisbane Qld 4003) Tel:(07)3229-5957 Fax:(07)3229-5996

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

VICE PRESIDENT McINTYRE

C NO 2001/ 1607 

APPEAL BY AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL AND SERVICES UNION UNDER SECTION 45 AGAINST DECISION AND DETERMINATION OF COMMISSIONER HODDER AT BRISBANE ON 14 MARCH 2001 RE DETERMINATION OF DESIGNATED AWARD PRINT PR 902275

BRISBANE

2.05 PM, THURSDAY, 22 MARCH 2001

PN1

THE VICE PRESIDENT: Could I have the appearances, please?

PN2

MR J.W. NOLAN: If it please the Commission, I seek leave to appear for the appellant unions.

PN3

MR A. ANDERSON: Vice President, Anderson, A, from Clayton Utz. I'm a solicitor - - -

PN4

MR R. COOK: Vice President, Bob Cook, by telephone from Canberra. I seek leave to appear on behalf of Virgin Blue and appearing with me is MR BRUCE HIGHFIELD, the human resources manager for Virgin Blue, and MR AARON ANDERSON, a solicitor of Clayton Utz.

PN5

THE VICE PRESIDENT: All right. Thanks, Mr Cook, and is there someone from the Transport Workers Union?

PN6

MS J. TISDALE: Yes, your Honour, Joy Tisdale, representing the Transport Workers Union.

PN7

THE VICE PRESIDENT: Yes, thanks, Ms Tisdale. That covers everything. This matter has been listed as a matter of urgency before me this afternoon pursuant to a request from the appellant early this morning. Mr Nolan.

PN8

MR NOLAN: Yes, thank you, Vice President. I should say before I forget it, even though the other parties are represented here this afternoon that my client had apparently written to Commissioner Hodder yesterday asking him to defer consideration of that agreement tomorrow and as I understand it, he hasn't yet indicated a willingness to do that although, as I understand it, he wrote to Mr Cook transmitting that request. So, so far as we understand the position, it is not materially changed from that which is represented in the documents; that is to say that tomorrow there is a proposal to deal with the certification of the agreement, of course, we say inappropriately in the light of what we say about the defects in the Commissioner's decision.

PN9

The proposal, as you've quite rightly observed, has come on at very short notice and I've only had the opportunity to look at the materials in a preliminary way but it will be obvious to you, Vice President, from the notice of appeal and from the decision, when one looks at the decision, in particular, the last three paragraphs of the decision, in the light of the statutory test that the Commissioner was obliged to address that there is at least, in our submission, a strongly arguable case that the Commissioner addressed the wrong issue, that he failed to apply himself to the proper statutory process that needed to be followed and that there is appellable error apparent on the face of the decision.

PN10

Now, the predicament which my client faced was that the comparative recency of the decision combined with the pending certification of the decision tomorrow, left it in the position that it had to move swiftly to approach the Commission to seek an order staying the decision of the Commissioner. What I've drawn up, and I'll hand up a copy to you, is a couple of draft documents. One is a draft order, which is a mechanical thing, simply exempting the appellants from filing all the materials for seven days, but more pertinently, the other order is an order that seeks the Commission's - I'm sorry I haven't multiple copies of this, but perhaps they can share that.

PN11

I didn't anticipate other people would be present, but the other order is an order that we'd ask the Commission to make this afternoon which would simply allow the position to be stayed pending an opportunity for a full argument on the question of a continuing stay at some early and appropriate time. We did that obviously at the stage we filed the documents thinking that we'd be making an ex parte application, but of course arrangements have been made for the other parties to be present, so I'm in your hands really, Vice President.

PN12

I'm happy to argue the matter so far as I can take it, but I'd have to say that given the shortness of time to consider all of the material, we think in fairness that the course that we propose, notwithstanding the presence of the other parties, is the preferable one, namely, that we at least get an opportunity to digest the material and at an appropriate time perhaps early next week, if the Commission could oblige us, we could come back and have a proper more complete argument on the issues of the stay, the questions involved, of course, which will entail consideration of the balance of convenience as well as the discrete legal issue that's involved.

PN13

So the proposal that we had thought to put was one that is reflected in this draft order, namely, that there be just a temporary stay for a matter of days, so that the matter could come back before the Commission and be argued more fully.

PN14

THE VICE PRESIDENT: All right. Well, the application for certification as I understand it, is listed before Commissioner Hodder at 9.15 am, tomorrow, and parties - and perhaps the intervener, I'm not certain, have been advised of that.

PN15

MR NOLAN: Yes.

PN16

THE VICE PRESIDENT: Maybe I could just ask the parties to the agreement whether they would oppose an adjournment of tomorrow's proceedings for, say, one week. I just raise that, or whether they'd like to consider that and advise later, but - - -

PN17

MR NOLAN: And if I may say so, that would seem to us to address all of the problems that are entailed in what I've put to you, and that would allow everyone to draw breath and consider their position, and have a proper argument on the stay.

PN18

THE VICE PRESIDENT: I note the application for certification was lodged on 9 January and - - -

PN19

MR COOK: Vice President, it's a bit difficult to hear you and I apologise for having to say this, but I take it that you'd like to hear a comment from us in relation to the application?

PN20

THE VICE PRESIDENT: Well, yes. Well, more specifically as to whether you and the Transport Workers would have agreed to an adjournment of the matter before Commissioner Hodder for, say, a week.

PN21

MR COOK: Vice President, I suppose our position is this, that under normal process, I suppose, the matter is listed for certification following a successful determination of the relevant awards under 170XF. There, of course, is recognition that there is going to be an appeal instituted under section 45 by the union in this matter. That, by itself, does not necessarily warrant any granting of the stay or, in our view, a postponement of a process which would do no harm to the union but will do a lot of benefit to the employees who are covered by the certified agreement.

PN22

So our view would be that there is no need to postpone the certification process because as I think Deputy President Acton held in the Campbell Mushrooms case that if I do - if the appeal is granted, then nothing renders the process which has been done nugatory in the sense that the entitlements flow to the employees under the agreement which has already been struck and the re-naming of an award or any benefits which flow from having to bring the matter on can simply be reviewed at that stage.

PN23

THE VICE PRESIDENT: Yes. I was looking at it probably from a more practical point of view. I mean, bearing in mind it is almost three months since the application for certification was filed whether a delay of a further week or so wouldn't be a - - -

PN24

MR COOK: Well, the parties were actually meeting in Brisbane coincidentally as a - even with the certification going, so I suppose in relation to the letter brought on by the ASU which we only received today - we've got no notice, of course, on the grounds to which the appeal is made - - -

PN25

THE VICE PRESIDENT: The appeal - it has been filed now, this morning.

PN26

MR COOK: Yes, but they requested a postponement on the basis that they thought the inconvenience to us as the - the TWU and Virgin. Well, we find no inconvenience in having the matter certified tomorrow and I don't think much is lost by the employees having some confidence that it is certified, at least confidence in the process to which they had initiated in agreeing to enter into this process, and I suppose the - whilst my friend has put that there are some errors there, there needs to be an arguable case in granting the stay. There is no doubt about it, but they've brought the application on now; they've brought on the urgency. They are quite entitled to bring the stay on even after certification.

PN27

THE VICE PRESIDENT: Well, Mr Nolan, I think, will argue it now if a practical solution can't be agreed, I think, between the parties, and I'll determine it.

PN28

MR COOK: Well, I think, apart from - unless my - Mr Highfield has any instructions for me, that's the position that we're putting to the Commission at this stage.

PN29

THE VICE PRESIDENT: All right. Mr Highfield or Mr Anderson.

PN30

MR HIGHFIELD: Mr Vice President, I'd just like to explain Virgin Blue's frustration in this matter. I accept your comments that it was - the matter was put before the Commission three months ago and an extra week seems hardly worth worrying about. However, this process - the people in our call centre or our ground crew have been employed now since July and have been waiting patiently and have voted four times now and have had the ACTU Greg Combet and others involved in this matter. Really, from my simplistic point of view, it's a matter of demarcation.

PN31

Virgin Blue's call centre staff are ground staff. When I checked into a flight this morning in Melbourne, I was checked in by a call centre staff member in Melbourne whilst our ground crew are training as flight attendants up here in Brisbane. The ASU can't seem to understand the way Virgin Blue is moving with having people covered in this way but albeit it seems nothing to allow one more week to pass by, my people in the call centre are very, very frustrated with this process. We've had the ASU come in and try to seek membership on many, many occasions and at the insistence of Greg Combet, and I think it's really time to certify the agreement, albeit I do accept what you say that you think another week would help, but really, from Virgin Blue's point of view, we need to move on and run our business.

PN32

These people have joined Virgin Blue on a simple letter from me in May last year, saying "your rate of pay is $32,000 and we will have an enterprise agreement sorted out with you very soon". It's now March and they just simply want their terms and conditions ratified by the Commission and they've been waiting patiently and have voted four times for their coverage by the Transport Workers Union. I think we've made our case very clear, despite what counsel may say about Mr Hodder's decision that the ASU award, the clerical award, these are not clerical people, and the award is not appropriate and I think the award is not flexible enough. It doesn't cover casuals.

PN33

It doesn't cover the training. It doesn't even provide shift penalties, the federal award, and the state award is not applicable either as these people are working all over - as I say, we have call centre people in Adelaide today, as I speak, and in Melbourne, checking in staff and loading aircraft. We are bringing a completely new way of working to the airline industry and no one can accept it, and I just feel immensely frustrated by the ASU in this whole process, so I would like the hearing to go ahead tomorrow at 9.15 if possible and I just wish the ASU would just accept the fact that traditional airlines don't have to be divided and demarked the way Ansett and Qantas are.

PN34

I just wish that Virgin Blue be allowed to get on with business. It's been long enough and hard enough, and another week is more cost to an airline that is losing money. I have to pay Mr Cook and Aaron and I have to turn up when I should be doing pay reviews. We've been operating now for almost a year, and I really don't have the time to spend dealing with these issues which are of importance to the ASU and their membership, but are of no relevance to Virgin Blue. They have no members in our company, and our people have voted four times not to entertain them. If Mr Hodder has erred in his decision, I, for the life of me, can't understand why. I've read that award a million times; it is not appropriate to us. Sorry, for my passionate speech but we just need to be allowed to get on with business.

PN35

THE VICE PRESIDENT: All right. Thanks, Mr Highfield. Maybe I should ask you, Ms Tisdale, if I am able to be heard by you what the TWU's position is in relation to this?

PN36

MS TISDALE: Your Honour, we don't see any reason why the certification hearing should be delayed further. We also - we don't see any reason why this application for a stay should be granted. We are although not in a position today to argue that point, having had no opportunity to see the grounds that the stay or the appeal has been filed on. We feel it would be improper for the matter to go ahead today. We're unsure whether perhaps this matter could be dealt with tomorrow morning before the certification hearing when the parties would be gathered together in Brisbane anyway.

PN37

But our ultimate position is that we don't see any reason why the certification should not go ahead; we can't see any real reason for it to be - any realistic reason why it should be delayed any further.

PN38

THE VICE PRESIDENT: All right. Thanks. Well, I think, Mr Nolan, in the light of that if you make whatever application you wish to make.

PN39

MR NOLAN: Yes, thank you, Vice President. Whilst one can sympathise with Mr Highfield's sentiments of course, he hasn't got a monopoly on frustration because my client, of course, believes that it's been unceremoniously elbowed out of the way by the Transport Workers Union in collusion with Virgin, and that what has been said about the multi-skilling to the extent that it exists in a minor way is so much camouflage has been drawn across the path of what was the real exercise that the Commissioner should have undertaken.

PN40

Now, could I address this issue perhaps by referring to a decision of a Full Bench of the Commission - and I'll hand up a copy of that to you, and I have got spare copies of that - because it's necessary to appreciate the task that the Commissioner had to undertake if he was to approach a 170XF determination in the manner that we suggest he should have, and he failed to do that and that's the nub of the appeal. This decision is a decision that I'm sure you'll be familiar with. It's the Australian Guarantee Corporation Limited decision. It's a decision of a Full Bench constituted by the President, by Senior Deputy President Marsh, and Commissioner Harrison and it's a decision of 3 February 2000.

PN41

And I won't read it all out to you, of course, but I can simply refer you to that part of the decision that deals specifically with the analysis of what section 170XF really entails. It says this at paragraph 15:

PN42

Section 170XF confers a power on the Commission to be exercised in the circumstances specified. The relevant circumstance for the ...(reads)... to be covered by the agreement and that the relevant time it will be binding on AGC in particular.

PN43

And it goes on to describe the number of persons who work there and so on. At paragraph 16 it says:

PN44

For these reasons, we've concluded that the decision under appeal involved a ...(reads)... in our view she did, we should grant leave to appeal and uphold the appeal.

PN45

And there is an appeal of course under section 45(1)(g) on that basis. Over the page, at the bottom of paragraph 18, this is said, "When the Commission" - about half-way up that paragraph:

PN46

When the Commission is considering an application for the determination of a designated award under section 170XF, it is required to ...(reads)... operates in relation to employees for whom there is no relevant award.

PN47

And I stop reading there. So that's consistent with what we've suggested in the notice of appeal: that in fact what the Commissioner was obliged to do was to make a positive finding first of all whether or not there was a relevant award as that's defined in the Act and then to move forward. And we say that the defect in the Commissioner's decision was that he failed to approach the matter in the way that he's required to do by law in that, and this is really all spelt out in those last three paragraphs of the decision because the Commissioner has reproduced a significant amount of transcript in the submissions and evidence and so on.

PN48

But he really comes to the point in those last three paragraphs, and can I ask you to look at those paragraphs, perhaps the last four paragraphs? At paragraph 26 he says:

PN49

In reaching this decision I accept that the operations of Virgin are very different to the traditional airline operations ...(reads)... obvious that upon this occurring that the multi-skilling and work requirements of Virgin will take on a new persona and culture.

PN50

I interpolate there the evidence was that all of these call centre people are located at some distance from the Brisbane Airport down in the Fortitude valley. 28, he says:

PN51

The extent of this is that it is more likely that the nature of the work to be performed will become ...(reads)... but that, however, still remains in the future.

PN52

And, of course, we seize upon that observation to say that he's applied the wrong test because in the determination of the relevant award, he has to make his mind up about what applies in the here and now not by reference to future contingencies. He goes on to say:

PN53

Therefore in view of the foregoing, I determine for the purpose of an appropriate award or awards that consistent with section ...(reads)... Virgin and the TWU filed and intended for certification upon a section 170XF determination.

PN54

Now, it is our contention the whole exercise was entirely misconceived because what the Commissioner needed to do was not to jump to that conclusion but first of all to address himself to the requirements of part 6B and look first of all at the definition of awards in sections 170XA. He had to look at - - -

PN55

THE VICE PRESIDENT: Mr Nolan, could I just interrupt you? That's not what was put to Commissioner Hodder, is it, by the ASU intervening? As I read it, and I mean I only had a quick glance, it was as I understand it arguing - I wasn't entirely clear about the Airlines Clerks Award but ultimately I think it was saying he should determine that the State Common Rule Award should be the designated award.

PN56

MR NOLAN: Yes, but I think it was said to him, although it may not have been said in so many words, that really the award that covered these people was the Clerks Award. It was urged upon him that if he was going to designate an award he ought to do that but the point that I make is that even if that was put that, in itself, was a mis-statement of the position because the true legal approach that should have been taken was one that determined first of all whether or not there was a relevant award as defined which applied to the work.

PN57

So there is no doubt about the fact that there was a lot of broad ranging argument and comment upon all aspects of the material that was put to him but at the end of the day, in our submission, there is a distinct and discrete legal point that emerges that should have been addressed that wasn't addressed and that's something that's capable of remedy on appeal even if it wasn't, in our submission, fully articulated below in the way that, you know, somebody who is alert to the precise legal issues might articulate it.

PN58

I know that that's a problem that often emerges in appeals in this institution but it doesn't detract from the force of the legal argument, in our submission, because if there is a legal defect it stays unaffected by subsequent events and in a sense it's a ticking time bomb that can be activated when somebody or other decides to take issue with the legality of whatever step in the process one finds oneself in and of course - - -

PN59

THE VICE PRESIDENT: Well, sorry, if I just interrupt again, Mr Nolan.

PN60

MR NOLAN: Yes.

PN61

THE VICE PRESIDENT: It's your submission that the Commissioner should have found that the Clerical Employees Award State was the relevant award.

PN62

MR NOLAN: Relevant award, yes. And having made that determination then, looking at 170XF, there was no need for him to turn to 170XF.

PN63

THE VICE PRESIDENT: Yes, I follow that.

PN64

MR NOLAN: And indeed, not only was there no need for him to do it, he was positively obliged not to do it because having made the determination about a relevant award he was unable to consider 170XF. The question was answered. There was no need to go to 170XF.

PN65

THE VICE PRESIDENT: But having done that, he still determined - sorry, he determined that the Clerical Employees Award State was, together with the Transport Workers Award, to be the designated award so what practical difference does it have?

PN66

MR NOLAN: We say that that's - well, it's a wrong determination as a matter of law for a start so it's an error that hangs there in the ether. So far as it has a practical determination one can, I suppose, argue that in a number of ways. Perhaps the obvious way is to argue backwards from that. The identification of that is the error in saying "Well, what gave rise to the application for the 170XF determination in the first place?" but perhaps one can assume a desire to escape the regulation under the Clerks State Award in a desire to deny and, you know, turn one's back on that and by that course rob the award's application of legitimacy, in other words, say "Look, we've got a" - Virgin is in a position then to represent to the employees, as is the Transport Workers Union - "Look, we've got a designation from the Federal Commission about what is an appropriate award because what you've been told by the ASU is quite wrong." There is no relevant award. There is no award that fits this description.

PN67

This is the best that the Commission could do and this is only one of two awards that satisfies that description and that allows us to go forward so it robs the true legal picture, the true legal situation of the legitimacy that it merits by suggesting that some other device is necessary to come to grips with what might be appropriate in the circumstances and that by its very nature rejects the hypothesis or the proposition that the Clerks State Award is the award that applies. So it can't be - - -

PN68

THE VICE PRESIDENT: But if the application for certification went ahead tomorrow as scheduled, the no disadvantage test would have to be applied against both awards.

PN69

MR NOLAN: Well, that's right and it may be, and I haven't had an opportunity to look at the materials, it may be that if it was only one award and not both, a different conclusion would be reached in relation to the no disadvantage test. I just don't know, I'm sorry. I haven't had an opportunity to undertake that kind of analysis in the limited time available to me. What you say might be right but it might be wrong.

PN70

THE VICE PRESIDENT: But in any event it would have to be found to be no less advantageous than the Clerical Employees State Award - - -

PN71

MR NOLAN: That's right.

PN72

THE VICE PRESIDENT: - - - and if you'd been successful in your initial approach, if it was the initial approach, that that was the relevant award, it's the same result, isn't it?

PN73

MR NOLAN: It might be but that assumes, of course, that the Commissioner would have to undertake the exercise of, in effect, repudiating the determination he has made for the purposes of applying the no disadvantage test so the position becomes more complicated when one tries to avoid the consequences of, you know, what I've been putting to you. In other words, you'd have to say to the Commissioner, "You will have to make a determination that's consistent with a proposition that's really contrary to what you've determined to be the case under 170XF" and it seems to me that that unnecessarily complicates the picture and all it does is transmit along the conveyer belt, if you like, the legal error that we've identified.

PN74

THE VICE PRESIDENT: So probably what I'm saying goes more to balance of convenience than error.

PN75

MR NOLAN: Yes.

PN76

THE VICE PRESIDENT: But I was just thinking through the practical side of what might happen tomorrow.

PN77

MR NOLAN: I do appreciate what you're saying. Our response is as I've indicated that one would have to do a bit of ducking and weaving to come to a conclusion that there was no practical detriment and that would involve necessarily effectively the Commissioner turning his back on what he has done last Friday; in other words, designating the two awards as being relevant so in essence he'd go back to a position that we've argued is the true position and that is that the Clerical Employees Award is a relevant award. That would tend to call into question the whole need to make the XF determination and so that's the dilemma as we would identify and that, I think, just underscores perhaps more particularly the errors that we've identified.

PN78

So we say what he should have done is undertaken a two step exercise. He should have first of all answered the question, "Is there a relevant award?" To do that he needed to look at the definition of relevant award in 170XA. He had to satisfy himself that the relevant award - that there was no award that met the description of relevant award as defined, namely an award regulating any term or condition of employment of persons engaged in the same kind of work as the person under the agreement and that immediately before the initial day of the agreement is binding on the person's employer.

PN79

And the Full Bench decision to which I've referred you I think makes it pretty clear that that task, albeit it potentially a complex one, is one that really has to be undertaken and that has to be put out of the reckoning before one moves forward to 170XF and we would say that on the record and in the materials in the affidavit of Ms Parkin it can be demonstrated that there was overwhelmingly a case that the relevant award was the Clerks State Award because it had been specifically amended last September to cover activities in call centres in a generic broad based way and I think the suggestion was made somewhere - it may or may not be on the record - that this was all done just to get at Virgin.

PN80

But as Ms Parkin indicates in her affidavit that was far from the position because there were a number of employees, some of whom she identifies in the affidavit at paragraph 12, "who are covered by the call centre part of the State Clerks Award" so that the ASU was very careful to remove any room for argument; had negotiations as she indicates for two years with a number of peak employer groups to get a special section of the award applying to call centres, and achieve that and a variety of call centres are covered by the State award. Now that, in our submission, stakes out the case overwhelmingly that the definition of relevant award as it applies to a State award is well and truly satisfied. That having been the case, the Commissioner should have stopped there and he shouldn't have embarked upon his section 170XF inquiry.

PN81

Everything he did from that point was erroneous because it proceeded on a wrong assumption and it proceeded during the statutory obligation that was placed upon him to, of course, make that a primary determination. So we submit that there is a very strong arguable case that there is legal error and then of course the legal error, as we say, transmits down the line because if that legal error is carried forward into the certification process tomorrow, notwithstanding what Mr Highfield has said this afternoon, there may be a number of employees who would be happy to see an agreement certified. But of course as we all know, when somebody expresses some discontent with what has happened the lawyers pore over the process and you couldn't be sure that this issue wouldn't emerge as an issue that was then used to attack the validity of the certified agreement if its certification is dependent, as it must be now in the light of the Commissioner's decision, upon the section 170XF decision.

PN82

So there is, we would say, no merit at all in maintaining or allowing to be transmitted down the process an error that is so conspicuous and so outrageous as the one we think we've identified by reference simply to the terms of the decision and called in aid in that connection the Full Bench decision and so that that really presents an overwhelming case that really has an impact upon balance of convenience considerations, and you'll be familiar, of course, with the Full Court authorities which are often quoted, the Federal Court Full Court authorities on balance of convenience and arguable case and it's said in all of those authorities that where the arguable case is compelling considerations as to balance of convenience assume a lesser significance because they are overwhelmed really by the force of the argument about the legal error that's been identified.

PN83

So we would say in a case like this where the legal error which has been identified is so egregious considerations as to balance of convenience assume rather less significance and that in particular the potential at least to allow a legal error to be transmitted into a certification of an agreement presents very significant dangers and it is something that the Commission, in our respectful submission, would not lend its aid to once it's become aware of the fact that there is a legal error infecting the process. So we would submit respectfully that more than enough has been demonstrated on these materials to satisfy you that the wrong question has been addressed by the Commissioner; that there's been an error of law.

PN84

That error of law is not something that's transitory or something that's become moot, it's something that's well and truly alive and infects the entire process and justifies the granting of a stay and a stay in the terms sought or a more extensive stay if this afternoon is to be the occasion for arguing this matter through to conclusion; that the stay should be a stay until the hearing and determination of the appeal. Now, it may be that in the light of what I've had to say other people consider themselves to be - having been placed at a disadvantage.

PN85

If that's the case what I've suggested in the order, I would submit, is the sensible course of action to take and that is that the stay be made on a temporary basis so that the other parties could consider what I've said here, come back, address the Commission on these two issues of arguable case and balance of convenience and that the matter could be heard in a more considered climate and whether or not a decision for a stay, an enduring stay, until the hearing and determination of the appeal is to be made or not could be considered in a more relaxed climate rather than the urgent way in which the matter has come before the Commission today. So those are our submissions, may it please the Commission.

PN86

THE VICE PRESIDENT: All right, thanks, Mr Nolan. Mr Cook?

PN87

MR COOK: Thank you, Vice President. Vice President, in relation to my friend's arguments the point I think that the Commissioner Hodder had at first instance on this matter was that the relevant award which was given for the purposes of the no disadvantage test was the Clerks Domestic Airlines Award 1980 and I think the way that it run, that having looked at and examined the clauses within that are relevant - within that award are because it applied to the Airline industry; that because it was an Ansett only award in relation to classification structure and to a number of other clauses that it simply had no application by its very structure to the Virgin operation.

PN88

And as a consequence it wasn't found to be the relevant award. It then came down, I think, in submissions from the union, from Ms Parkin if I recall, that these issues were largely now going to be resolved by going to the State Award. So after the Federal Award had been knocked out let's go back to the last thing we can hang on to and that was the State Award. The State Award was looked at, it was weighed in - both by commentary and assistance from the Clerical Union and from evidence from Mr Highfield and the TWU.

PN89

And it was from those comments that in our view the Commissioner went away and did exactly what he was required to do under 170XA and in accordance with 170XF determined in the case as my friend has said or raised in relation to the Full Court decision of AGC that in looking - and the words I think there which have been used in paragraph 18:

PN90

The Commission is required to satisfy itself that there is no relevant award in relation to the person or persons from whom the designation is sought.

PN91

So you see the first relevant award which was sought was knocked out. You go back to a State award which can be used for determining the no disadvantage test and what was also thrown in for the bargaining ring along with that was the TWU Award because that was the basis to which the agreement had been struck. The Commissioner rightfully then went through the process of weighing up which award should apply and came to the basis of looking at the award having application - both awards having an application to the operation.

PN92

Because the Commissioner recognised the true circumstance in the operations of Virgin Blue and the diminishing role of the clerical nature of the industry as we move into a more internet focused and a more multi-skilled process for getting staff to fulfil a number of roles as opposed to a merely dominant clerical role at a State level. They will be involved in an aviation industry which traverses Australia. More importantly he examined the role of the relevant award, found that it didn't apply, looked at the no disadvantage test and in relation to that aspect raised in the AGC case at paragraph 4 - Vice President, at paragraph 4 it says:

PN93

An agreement passes the no disadvantage test if it does not disadvantage employees in relation to their terms and conditions of employment.

PN94

And in determining that one looks to a relevant award or a designated award. The designated awards which were found to have application by Commissioner Hodder were two awards which clearly support the notion of the type of industry which the employees are engaged in. There hasn't been, as my friend has put, a technical error. There's been a proper weighing of the matters and of course the issues about how erroneous the Commissioner may have been in weighing up these issues need to be proved but I think on the face of the material which was made available the weighing up of the two awards which had application was ultimately breached by the Commissioner as being the most sound basis for determining the no disadvantage test as the Airline moved from - or certainly as reservation agents in a strict sense moved from their strict clerical reservation role to that role of reservation/baggage handler/aircraft loader, that sort of notion.

PN95

And so in order to protect them in the most basic way the Commissioner did the correcting in determining that both awards had an application because he weighed up the effect based on the evidence put towards him - forward to him. There can, in our view, be no reason for this stay to be granted on the basis that in some way it will complicate the certification process tomorrow or that it enforces an error from a designation of a relevant award into the certification process. In our submission it can have neither.

PN96

If the Commissioner is satisfied that the no disadvantages is passed on the basis of the submissions which will be put in the relevant hearing tomorrow morning and the comparatives between the Clerical Award and the Transport Award, then it passes for that very sound reason that there is no disadvantage in this application and picks up the notion to where, I think, the Vice President was pressing that in a practical sense what more do you want than to have the safety net factor of making sure that employees aren't disadvantaged in the certified agreement compared to the awards to which underpinned them.

PN97

And in this case two awards underpin and guarantee the safety net as the employees move from one spectrum of the operation to the other spectrum. There is no error we would put in our submission, Vice President, which would show at least from the material that we've seen, that would indicate that the Commissioner did not take a proper process or a proper approach to the determining of the relevant award. We think that the conclusion drawn by the Commissioner clearly indicates that that's what he did based on the submissions put by the Clerical Union at the time in relation to the Clerks Domestic Airlines Award.

PN98

When that had no relevance, then it went down to, "Well, how do I designate an award? These are the two arguments that have been put before me in relation to the TWU award and the Clerks Domestic State Award, then my view is that I think they probably both have a good application for the no disadvantage test in protecting these employees in the transitional stages", and so he did the correct thing in our submission. If there is no point for granting the stay in our view based on the trialable - on having an arguable case, if the Vice President is of the view that there is an arguable case, then in our submission there is no view to delay the certification of the agreement as the arguable case is developed by our friends. If the Commission pleases.

PN99

THE VICE PRESIDENT: Thanks, Mr Cook, and Ms Tisdale?

PN100

MS TISDALE: Thank you, your Honour. I'd strongly support Mr Cook's submissions and particularly reiterate his submission that the issues that have been raised on behalf of the ASU that no practical effect would flow from the issues that they've raised here today. The Clerical Employees Award State - one of the awards designated by Commissioner Hodder is one of the awards that we have listed in our statutory declaration as an award underpinning the agreement along with the Airline Operations Transport Workers Award 1998.

PN101

We have made a comprehensive analysis of those two awards and have seen that the agreement passes the no disadvantage test in relation to those two awards on fairly much every point, and that we consider there can be no practical effect of the issues raised on behalf of the ASU in relation to what particular point ..... that Clerical Award was designated or determined to be in place, that we have accepted that award as an appropriate safety net together with our own award.

PN102

And we have ensured that there is no disadvantage that would take place on the basis of the relationship between the agreement and the two awards, that we can see no reason why other certification should be stalled that this matter can't proceed as listed tomorrow.

PN103

THE VICE PRESIDENT: Thank you. Thank you, Ms Tisdale. Mr Nolan, would you like to reply to anything that - - -

PN104

MR NOLAN: I'll respond briefly if I may, thank you, Vice President. Of course, the question that the Commissioner should have addressed was the one that is set out in paragraph 18 of the Full Bench decision to which you've already been referred and at the expense of tedium, can I just say this? As the Full Bench says:

PN105

When the Commission is considering an application for the determination of a designated award, it's required to satisfy ...(reads)... only operates in relation to employees for whom there is no relevant award.

PN106

That really sums up the picture and sums up the legal test that is required to be applied and the Commissioner, of course, had that available to him or should have because it was a decision made last February; that is to say February 2000 that is. And the decision makes it abundantly clear that that was not the approach that the Commissioner took, and therefore we say that we have made out another saleable case on balance of - on arguable case contrary to what's been said.

PN107

Now, of course, regardless of what is said about the process of it goes ahead tomorrow, the fact of the matter remains: having made the section 170XF determination the Commissioner is obliged then, if the proceedings tomorrow go ahead, to apply the no disadvantage test by reference to the determination that he's made under 170XF. So, if he was to make it by reference to another determination, if he was to make it by reference to something different to that, he would be in effect committing another legal error because he's already committed himself by his decision to apply the no disadvantage test in the way I've suggested.

PN108

So we say that it's no answer to our contention to say, "Oh, well, it really wouldn't matter. It would really depend on what he did tomorrow." In fact, it goes to the heart of the certification because the certification must now, in the light of what he's already determined, proceed on the basis of his section 170XF determination. So those are the matters that I'd like to put in reply. Can I say perhaps again that I think the Commission would be, if I may so, perhaps well advised to take up the suggestion we make and make an order for a particular period of time to allow the parties to then ventilate these issues in more detail.

PN109

THE VICE PRESIDENT: All right. Well, thank you all for those submissions. I propose just to adjourn for a short time to give consideration to the matters and I'll announce a decision relatively soon. Those of you who are on the other end of the telephone line, there's no need to wait on unless you wish to. No doubt, Mr Anderson can convey the result to you both after I announce a decision shortly but I wouldn't expect to be more than 30 minutes. So I will just adjourn for a short time.

SHORT ADJOURNMENT [2.55pm]

RESUMED [3.40pm]

PN110

THE VICE PRESIDENT: The Australian Municipal Administrative Clerical and Services Union and the Australian Municipal Administrative Clerical and Services Union Central and Southern Queensland Clerical Administrative Branch today filed a notice of appeal against a decision and determination of Commissioner Hodder given on 14 March 2001 in which he, purporting to act pursuant to section 170XF of the Workplace Relation Act, determined that the Airlines Operations Transport Workers Award, which I will call the TWU Award, and the Clerical Employees Award State, an award of the Queensland Industrial Relations Commission, which I will call the State ASU Award, were to be designated awards with respect to an application to certify an agreement between Virgin Australia Operations Pty Limited and the Transport Workers Union of Australia.

PN111

The notice of appeal contained an application that the operation of the determination be stayed pending the hearing and determination of the appeal or until further order. The grounds set out in the notice of appeal are - and I set them out, I won't read them now - in support of these grounds the appellants relied in particular on a decision of a Full Bench of the Commission in a case relating to AGC, a decision of 3 February last year, print S2344. The two considerations applied to applications for a stay are: (1) whether the appellant has an arguable case and (2) the balance of convenience. In my view, the appellant has an arguable case in relation to matters raised in its notice of appeal.

PN112

In my view, however, the balance of convenience is against the granting of a stay. The appellant submitted that Commissioner Hodder should have determined that the State ASU Award was the relevant award as defined in section 170X and accordingly should not have proceeded to determine whether he should determine a designated award under section 170XF. However, in the result Commissioner Hodder determined that the State ASU Award as well as the TWU Award should be a designated award. This means that the no disadvantage test will be applied by reference to the State ASU Award as well as by reference to the TWU Award.

PN113

Accordingly, the no disadvantage test will be applied with respect to the same award, that is, the State ASU Award as it would have been applied with respect to, had Commissioner Hodder found the State ASU Award to be the relevant award as defined in section 170X. That the no disadvantage test will also be applied by reference to the TWU Award does not affect the situation that the agreement must pass the no disadvantage test by reference to the State ASU Award. For the above reasons I refuse to make an order staying the operation of Commissioner Hodder's determination. I will take such steps as are open to me to have the appeal listed for hearing as soon as possible. That concludes these proceedings and I now adjourn.

ADJOURNED INDEFINITELY [3.45pm]