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C2001/ 2972 , Transcript of Proceedings [2003] AIRCTrans 1041 (24 March 2003)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT DUNCAN

C 2001/ 2972 

COLONIAL MUTUAL LIFE SOCIETY LTD

Application to vary an award
- settlement of orders
re addition of clause 21(1) - re redundancy

SYDNEY

FRIDAY, 7 MARCH 2003

Continued from 8.8.02

Hearing continuing

PN5240

THE SENIOR DEPUTY PRESIDENT: I don't think there is any variations to appearances. Yes, Mr Douglas?

PN5241

MR DOUGLAS: I will endeavour to be fairly short, your Honour.

PN5242

THE SENIOR DEPUTY PRESIDENT: Of course the submissions that have put in in writing are, if I may say so, fairly comprehensive.

PN5243

MR DOUGLAS: They are and I think to be fair they put the position of the three parties pretty exhaustively. Does your Honour wish to mark those outlines for identification. We did put in a reply yesterday. Did your Honour get that?

PN5244

THE SENIOR DEPUTY PRESIDENT: Yes. I am having some trouble locating the submissions filed by Phillips Fox.

PN5245

MR LAWRENCE: Your Honour, I haven't got a spare copy so I can't give any to you at the moment.

PN5246

THE SENIOR DEPUTY PRESIDENT: I have them, thanks, Mr Lawrence. The outline of submissions prepared on behalf of Commonwealth and Colonial, which were forwarded to the Commission on 26 February 2003 I will mark exhibit F1. The submissions in reply from that source which were filed on 6 March 2003 I mark exhibit F2. The outline of submissions on behalf of the FSU which were filed on 5 March 2003 I mark exhibit E1. The submissions forwarded by Phillips Fox on behalf of the interveners on 5 March 2003 I mark exhibit C1.

EXHIBIT #F1 COMMONWEALTH AND COLONIAL OUTLINE OF SUBMISSIONS FORWARDED 26.2.03

EXHIBIT #F2 SUBMISSIONS IN REPLY FILED 6.3.03

EXHIBIT #E1 OUTLINE OF SUBMISSIONS FILED 5.3.03

EXHIBIT #C3 SUBMISSIONS FORWARD BY PHILLIPS FOX ON 5.3.03

PN5247

MR DOUGLAS: Thank you, your Honour. Does your Honour wish to mark the draft orders that were filed. I think we filed them and then they were amended by the FSU at least - - -

PN5248

THE SENIOR DEPUTY PRESIDENT: That's right.

PN5249

MR DOUGLAS: By striking out paragraphs. That's what I have in front of me, your Honour, the amended versions, amended in that sense.

PN5250

THE SENIOR DEPUTY PRESIDENT: Yes, well, the original drafts which were filed by Freehills in response to the direction in the decision I will mark the Colonial Group Enterprise Award 1996 exhibit F3, the Colonial Group Enterprise Agreements 1999 draft exhibit F4, the Colonial Retail Network Multi-Site Franchise Interim Award 2000 exhibit F5 and the Commonwealth Bank of Australia Employees Award 1999 exhibit F6. The amended, if that is the right word, provisions supplied by Geoffrey Edwards and Co - - -

PN5251

MR DOUGLAS: It is really the FSU's position, your Honour.

PN5252

THE SENIOR DEPUTY PRESIDENT: They are attached to the submission but I think for consistency I should mark them separately to the submission. The FSU's Commonwealth Bank of Australia Employees Award I mark exhibit E2, the Colonial Retail Network Multi-Site Franchise Interim Award 2000, the FSU's draft, I will mark exhibit E3. The FSU's Colonial Group Enterprise Award 1996 draft I mark exhibit E4. The Colonial Group Enterprise Agreement, the FSU draft thereof, is exhibit E5.

PN5253

THE SENIOR DEPUTY PRESIDENT: Which was the multi-site one, your Honour, E3, was it?

PN5254

THE SENIOR DEPUTY PRESIDENT: E3, yes.

EXHIBIT #FE COLONIAL GROUP ENTERPRISE AWARD 1996

EXHIBIT #F4 COLONIAL GROUP ENTERPRISE AGREEMENTS 1999 DRAFT

EXHIBIT #F5 COLONIAL RETAIL NETWORK MULTI-SITE FRANCHISE INTERIM AWARD 2000

EXHIBIT #F6 COMMONWEALTH BANK OF AUSTRALIA EMPLOYEES AWARD 1999

EXHIBIT #E2 FSU'S COMMONWEALTH BANK OF AUSTRALIA EMPLOYEES AWARD

EXHIBIT #E3 COLONIAL RETAIL NETWORK MULTI-SITE FRANCHISE INTERIM AWARD 2000, FSU DRAFT

EXHIBIT #E4 FSU'S COLONIAL GROUP ENTERPRISE AWARD 1996 DRAFT

EXHIBIT #E5 FSU DRAFT COLONIAL GROUP ENTERPRISE AGREEMENT

PN5255

MR DOUGLAS: Could I just take your Honour to each of those in turn. Firstly to the Commonwealth Bank Employees Award, either F6 or E2, it doesn't matter which. Your Honour, could I indicate that we don't press in that one the words in brackets in clause 15.4, that is the acceptable alternative employment provision.

PN5256

THE SENIOR DEPUTY PRESIDENT: I see, yes. The bracketed words come out.

PN5257

MR DOUGLAS: Yes. I think Mr Ginters made the point in his written submissions that that really is something new and we accept that, your Honour. So those words go out and nor do we press what is in our draft, 15.5.2.

PN5258

THE SENIOR DEPUTY PRESIDENT: The whole of it?

PN5259

MR DOUGLAS: The whole of it. So that with those two parts gone, your Honour, our draft then conforms with the TCR model clause, TCR standard. That then is our position in relation to each of the four areas. The difference then between us - with this qualification, your Honour, that in relation to the multi-site award, that award of course already has in it the acceptable alternative employment provision and with respect to the issue before your Honour today or issues, it is of note, your Honour, if you look at 13.5 the existing provision, alternative employment clause in that award, that the date of 4 December 2002 of course is not there.

PN5260

THE SENIOR DEPUTY PRESIDENT: It is certainly not in the draft prepared by you or - - -

PN5261

MR DOUGLAS: It's not in fact there in the award, your Honour. The award - - -

PN5262

THE SENIOR DEPUTY PRESIDENT: I see. The award as it stands doesn't have it.

PN5263

MR DOUGLAS: The award contains a provision as in the TCR model clause. So that in relation to the Commonwealth Bank Award, the Colonial Award and the Colonial Agreement with respect to both acceptable alternative employment and transmission of business, the union seeks to have the 4 December element inserted. In the case of alternative employment in a particular redundancy case occurring after 4 december 2002 and in the case of transmission of business striking out the words "before or" and the words "the date of this award" and inserting "4 December 2002". So the provision reads: "Where a business is after 4 December 2002." So that that is where we are in essence apart, your Honour, and I think that the FSU's position is the same as far as the interveners are concerned.

PN5264

THE SENIOR DEPUTY PRESIDENT: Yes. In short the distinction subsequent to the amendments you have made is in brief the insertion of the occurring after 4 December 2002?

PN5265

MR DOUGLAS: Yes, your Honour. Your Honour, could I make these few points very briefly. Firstly, your Honour, it seems to be implied from the written submissions of our opponents that the Commission is somehow limited in what it can do as a result of this proceeding in a merit sense to give effect to your determination that the TCR standard should be inserted in the various instruments. We say that the Commission is clearly not functus officio with respect to these proceedings and it cannot be so, that is as presently constituted, until such time as the orders are actually made. So in that sense the Commission really is in a position that is similar to what the TCR Full Bench found itself in subsequent to its first decision in August 1984 when there was a public outcry by employers, if I can put it that way, about some elements of the decision and that gave rise to a second proceeding and thereby the second TCR decision.

PN5266

It wasn't until after that decision that the Commission actually made the order by including its model clause in the Metal Industry Award. So in that sense if we say that the Commission is not functus officio and really it has an obligation on it to give effect to the conclusion which your Honour reached. Secondly, we say we are not in some way improperly or belatedly asking the Commission to adopt the TCR model clauses as to both transmission of business and acceptable alternative employment. The record makes it clear that that proposal that the Commission do that as an alternative, we put that to the Commission during our case and in reply and because of the way it has been raised by the FSU in its written submissions I wish to just direct your Honour's attention to the transcript I think of 2 September. You don't need to go there.

PN5267

THE SENIOR DEPUTY PRESIDENT: It is just as well, Mr Douglas, because it is in other hands.

PN5268
MR DOUGLAS: Yes, your Honour, but could I say the transcript of 2 September of last year beginning at PN504 through to PN519 and in particular as in PN510 and this is during the time when we put our case, we said that if the Commission decided that it was unable to implement the clauses that we were proposing in our applications then it should adopt the TCR model. Your Honour has found that it was in appropriate, inconsistent I think is probably the better word, with the TCR decisions to give effect to what we were seeking in our clauses although we had attempted to say that we were trying to lift the barrier higher so that there would be a guaranteed benefit for employees. Your Honour found you couldn't do that within the circumference of the TCR decisions and therefore you opted to, you determined that it was appropriate that the TCR standard be implemented.

PN5269
So we put that in our case and we also put it, your Honour, in reply at PN21 89 and 21 90. I said this at 21 89:

PN5270

Further I would suggest that it would appear that Mr Ginters wasn't listening the other day when I said to the Commission and I have said it on more than one occasion and I repeat it now, that we will be happy if the Commission adopts the TCR model clause in lieu of the wording in our applications if it finds difficulty with what we have proposed.

PN5271

Next, your Honour, as I have already indicated and it is clear from your Honour's decision that you found that you were unable to give effect to the clauses that were in the application and therefore you decided - or in lieu of that you decided it was proper for the Commission to implement TCR. Fourthly, we say that having in mind that conclusion that the debate as to the retrospectivity which occurred in the proceedings before your Honour was a debate that centred on the clauses that we had proposed. It wasn't really a debate as to what should occur if the decision decided to implement the TCR model clause. Your Honour, because of what particularly what my learned friend, Mr Lawrence's clients have raised in their written submissions, I think beginning at paragraph 9, it is important that I should take your Honour to the wording of the Bench in the second TCR case and I hand up a full copy of that decision.

PN5272

I just direct your Honour's attention to C1, which are the intervener's submissions, beginning at paragraph 9 under the heading of "Transmission of business" through to paragraph 11 where it is said that:

PN5273

As a result the TCR amendments to the Metal Industry Award did not apply to terminations prior to 1 February '85 even though ...(reads)... on or after 1 February 1985.

PN5274

Now that submission is plainly wrong on the basis of what is in the TCR decision, the second one of December 1984. Could I take your Honour to page 19 of the print, heading "Transmission of business". One of the things that is relevant here, your Honour, is that Mr Moore J, Sir John Moore, as he then was, sat as a Member of this Bench and I think at the time he was the President of the Commission. He also was a Member of the Metal Industry Long Service Leave Award Full Bench that gave effect to the 1976 Metal Industry Award being the one that is referred to as being the one from which they would obtain the drafting of the transmission of business clause. That transmission of business clause in fact was a continuation of a clause that came into effect in the Metal Industry Award in 1964 and he was a Member of that Bench also.

PN5275

So he had a continuity from 1964 proceedings on long service leave through 1976 and then on to the TCR Bench. They said the only difference between the parties, and this was after there had been this employer outcry, in relation to transmission of business was whether the should clause should apply to transmission both before and after the date of any award or only after. Now our opponents here are saying that in implementing the TCR standard you must confine it to transmissions only occurring after the award variation. So they are saying really at this time in December '84 the same issue was before them. For reasons expressed later in relation to the employers' argument that the whole of the order shall apply only to future service by an employee, we have decided that any award variation should cover transmission of a business both before and after the date of any award.

PN5276

So that the Bench distinguished the operative date from the transmissions that would be looked at. In other words, transmissions that occurred before the operative date of the award would in fact be looked at. If you look over the page they say:

PN5277

The following provision would be consistent with our decision, where a business is before or after the date of this award transmitted.

PN5278

Now that is where the union, our opponents, want the 4 December inserted. We say that as a matter of substance, not a matter of no moment, as a matter of substance the TCR Bench has decided in '84 that transmissions occurring before and after the operative date of the award would be picked up. If you go from there, your Honour, to page 29 under the heading "Existing Awards or Agreements". This is said:

PN5279

The employers emphasise that many awards have severance payments and some of those awards ...(reads)... which the Commission has prescribed.

PN5280

I go down one paragraph:

PN5281

They claim that there was justification in the decision in these circumstances ...(reads)... would be required.

PN5282

Over to the next page, the second paragraph:

PN5283

It is clear from the passages of the decision which appear in the next ...(reads)... decided by the Commission.

PN5284

Then they refer to - and that shows, your Honour, the nature, the way in which the Bench viewed this standard as being a national standard. Then under the heading: "No extra claims", the first paragraph:

PN5285

The employers contended that the union should undertake for a period of two years ...(reads)... except in accordance with the principles.

PN5286

At the bottom of the page, the Commonwealth's submission in relation to a further no extra claims undertaking was as follows. Then it is set out that the Commonwealth was really saying, look, there is already a no extra claims provision in the principles and that should be sufficient. Then at about four paragraphs in on that page it is stated, that is the ACTU:

PN5287

That the test case has established national arbitrated standards of job protection ...(reads)... special circumstances can be proved.

PN5288

Skipping the next paragraph.

PN5289

We agree with the Commonwealth's submissions referred to earlier.

PN5290

Then going to the last sentence:

PN5291

Having regard to the nature of the decision we have decided and we have reached ...(reads)... we don't grant the employers' claim.

PN5292

Then we come to operative date and this demonstrates that my learned friend, Mr Lawrence's clients have clearly got it wrong. That it is clear that as a matter of substance that the TCR transmission of business standard allows transmissions that occur before and after the date of the award to be taken into account. The employers claimed that no part of the order of the Commission should take effect until 1 November '85 and that any order shall only apply to service by an employee after that date. Going to the middle of the next paragraph:

PN5293

They argued that the decision should be given prospective operation so as to enable ...(reads)... a clear provision for phasing in.

PN5294

Now that is so, of course, but there was no such approach taken in the long service leave case of 1976 with respect to transmission of business. That decision continued the 1964 transmission of business provision which I have said in the proceedings originated from the Labour and Industry Act of Victoria of 1958. In fact I was wrong about that, your Honour. It was in fact originated in Act 5771, being the 1953 Labour and Industry Act, Division 4, with respect to long service leave. That division, interestingly, had in it Section 151(3) which was the transmission of business provision which was adopted by the long service leave Full Bench in 1964 and later adopted by the TCR Bench in 1984 and in Section 153 there was a facility somewhat like the acceptable alternative employment facility that found its way into the TCR standard wherein what was then the Industrial Appeals Court of Victoria had the capacity to exempt employers if the provided long service leave on equal to or better conditions than under the legislation.

PN5295

Now then going to the middle of this page, page 32, they said:

PN5296

The ACTU claimed that the operative date in the Metal Industry Award ...(reads)... of the Commission's standards.

PN5297

Then further down:

PN5298

Additionally the ACTU submitted, (4) in practice the Commission's standard of job protection would be implemented ...(reads)... made and processed.

PN5299

Over the page:

PN5300

As to the decision applying only to service to after the date of operation the ACTU claimed . . .

PN5301

And then it set out four points:

PN5302

The decision of the Commission of 2 August did not fix an operative date nor ...(reads)... before and after the making of any order.

PN5303

Now then I go to page 34, four paragraphs in:

PN5304

It was clearly our intention that the cost impact of the decision on individual ...(reads)... from page 48 of the decision where we . . .

PN5305

And you will remember that I think - I am not sure whether it was Mr Ginters or Mr Lawrence but one of them will know who it was but in the debate about what was meant by the words of the Full Bench in the first TCR decision, you remember there is sa passage where the Commission says in two instances, and then they reefer to acceptable alternative and superannuation. Then we went on and said in our argument that those two instances were apart from the transmission of business exception and it is clear from what is on this page that we were right and whoever it was, Mr Ginters or Mr Lawrence was wrong, in the submission they put to the Commission. I read it:

PN5306

Two particular instances in which the employers argued might warrant an application ...(reads)... superannuation schemes on retrenchment.

PN5307

Then skipping the next paragraph:

PN5308

There is merit in the CAI's submissions that the employers should have time to make any necessary adjustment to their operations.

PN5309

Going down to the second-last paragraph on that page:

PN5310

In all the circumstances we are prepared to make the decision operative from 1 February '85 ...(reads)... breach of which will lead to prosecution.

PN5311

Now with all of that, if I go back to the words on page 19 where they say:

PN5312

For the reasons expressed later in relation to the employers' argument that the whole of the order shall only apply to future service by an employee . . .

PN5313

And that is the argument that I have taken your Honour to:

PN5314

. . . we have decided that any award variation should cover transmission of a business both before and after the date of any award.

PN5315

So clearly the operative date has no impact upon that situation. I suggest, I have never seen an award of this Commission containing the TCR transmission of business or acceptable alternative employment standards which has included in them a limitation which requires those two provisions to operate only in a prospective way, that is to say from the date the order is actually made.

PN5316

THE SENIOR DEPUTY PRESIDENT: Does that reference you have made to the decision in the TCR, it's number 2, isn't it, this one?

PN5317

MR DOUGLAS: Yes, your Honour.

PN5318

THE SENIOR DEPUTY PRESIDENT: Mean that transmission of a business when ever occurring, into the indefinite past gives rise to certain rights under the award?

PN5319

MR DOUGLAS: Yes, it does, your Honour.

PN5320

THE SENIOR DEPUTY PRESIDENT: Must be a lot of breaches?

PN5321

MR DOUGLAS: It means that whenever a transmission of business occurs - - -

PN5322

THE SENIOR DEPUTY PRESIDENT: Or occurred?

PN5323

MR DOUGLAS: Or occurred in the past, yes. Say the CBA award is varied today consistent with this model clause, forget about that other case, that provides another problem. But just say - look, not say the CBA but let's pick X award. It's varied to include for the first time today the transmission of business clause in accordance with that model. It would mean that a transmission of business that had occurred say two years ago or 40 years ago would be capable of being taken into account, yes, your Honour. There is absolutely no doubt about that and I must say, your Honour, that the passage of time has led to certain questions arising as to the way in which that provision should be applied and no doubt that has given rise - you remember, your Honour, in the proceedings and I only go to this simply to complete the record, not part of this debate now but in the proceedings I tendered what was CBA14, which were the six applications that have given risen to the current test case on termination and redundancy.

PN5324

Your Honour, there is an agreement on that very issue that has gone forward in SDP Marsh's report to the Full Bench and I had up a copy of the relevant passages that deal with the understanding that has been reached between the ACT, AACI and AIG on this very issue.

PN5325

MR LAWRENCE: My learned friend just happened to have a copy of this document. We weren't given this before or given any notice that this might come up.

PN5326

THE SENIOR DEPUTY PRESIDENT: Notice of it. That may require redress later on, Mr Lawrence.

PN5327

MR DOUGLAS: Your Honour, in answer to that question of your Honour's, of course, there could well be a limitation arising because of when a dispute came into existence.

PN5328

THE SENIOR DEPUTY PRESIDENT: That's true, yes.

PN5329

MR DOUGLAS: But that aside, your Honour, we would aside certainly one can look back any transmission that occurred as from the time a dispute arose. Now, your Honour, firstly if you go to the first page inside the cover you will see that the word "business", the definition remains exactly as it is in the transmission of business clause now. In fact both definitions, business and transmission. Then if you go over the page, your Honour, to clause 445, there is a new name for acceptable alternative employment, it now becomes adequate alternative employment.

PN5330

An employer in particular redundancy cases may make application to the Commission ...(reads)... adequate alternative employment for the employee.

PN5331

That is basically as it is now but there is a new provision and this sort of supports the dichotomy that I was talking about.

PN5332

This provision does not apply to circumstances involving transmission of business.

PN5333

In other words, one is separate from the other. Then if you go over the page to the new transmission of business provision.

PN5334

The provisions in 4.4 . . .

PN5335

and they are the severance pay provisions:

PN5336

. . . are not applicable where a business is before or after the date of this award.

PN5337

So the concept remains. Transmitted from an employer, the transmittor to another employer, the transmittee, in any of the following circumstances, and this is where the agreed change is:

PN5338

Where the employer accepts employment with the transmittee which recognises ...(reads)... continuous service of the employee with the transmittee.

PN5339

So that instead of deeming the service being preserved the new employer has to guarantee a protection of the service:

PN5340

Or where the employee rejects an offer with the transmittee in which the terms and conditions are similar to but no less favourable . . .

PN5341

And remember what Mr Ginters said about these words, that we had in our clause, maybe the parties looked at our draft:

PN5342

. . . considered on an overall basis then the terms and conditions applicable to the employee at ...(reads)... recognise the period of service . . .

PN5343

in other words, was going to protect the service:

PN5344

. . . then that employee is not entitled to severance pay.

PN5345

So severance pay is not to be paid in the future with respect to transmissions before or after this new variation will come into effect to people who go across with their service protected or reject employment where their service would have been protected and the offers of employment really were designed to keep the people in virtually the same sort of employed position. Now, your Honour, we say that the TCR standard as it is today, both as to acceptable alternative employment and maybe these two provisions will only last another three, six months before the new standards are implemented. Both as to acceptable alternative employment and transmission of business, having in mind what your Honour has decided, the obligation is to give effect to those clauses as they are.

PN5346

To dissect them by cutting them off at the knees so that they only operate in relation to acceptable alternative employment that arises after 4 December and transmissions of business that occur after 4 December is not the TCR standard and that is where the Commission is not authorised at a single Member level to give effect to an order of that kind. That is our position, your Honour.

PN5347

THE SENIOR DEPUTY PRESIDENT: Very well. Thank you, Mr Douglas. Mr Lawrence?

PN5348

MR LAWRENCE: Yes. Your Honour, the starting point in this has to be that you have given a decision in which at paragraph 48 you have referred to the question of retrospectivity and at paragraph 106 you included in the words that "standard provisions and they will be relevant to situations encountered in the future". So what you were saying was that redundancies that occur in the future, future redundancies will be caught by these provisions. That was, as far as the interveners are concerned, the objective that we were seeking. We came along here to stop if we could the retrospective change in the position that they were in in September 2000. Now there is a debate about what the provisions meant in the year 2000 but we say with some confidence that it meant that we were entitled, the interveners were entitled to be paid out at that stage.

PN5349

We ran the case on that basis. There was no doubt about it, no confusion about it and as far as we were concerned, well, you came to the conclusion that you did that that was what was accepted - the intervener's position was accepted but you said for the future there would be a new regime. Or partly a change to the regime. But it picked up some provisions that were in the TCR case. What my learned friend is trying to do is two things. First of all he is trying to argue, it is apparent in his submissions, his written submissions, that he wants the acceptable alternative employment provision to have some impact in the future so as to prevent us pursuing the rights as they were in September 2000. That is he wants to use that provision to make an application more than two years after the date or almost two years after the date of termination.

PN5350

That is what we read into what he says about acceptable alternative employment. Much more important than that, your Honour, is this - what he is trying to set up through this argument is a basis upon which at some stage in the future he can go along, Colonial can go along to the Federal Court or any other place where the matter might be litigated and say the provision that was introduced from 4 December 2002 enables us to undercut the rights that were present in 2002, September 2002, because this would mean that this provision has gone in, would mean that if there was a transmission of business then these people don't get the entitlement as at that date.

PN5351

Now there are a couple of points that might be said about that in relation to the Colonial situation. It would be quite different with the Commonwealth but in the Colonial situation there was quite clearly no basis upon which in conventional terms there was a transmission of business because it was the industry of banking and there was the services area conducted by EDS and we would say on the basis of ..... Consultants there was no transmission of business as it should be understood. The second thing that should be understood is that back at that time EDS had actually made an application and been granted an application to be relieved from the implications of Section 149. So in any event there couldn't be, we would say, in practical terms, the transmission of business because the whole basis upon which transmission of business would operate in the ordinary case was removed by the order made.

PN5352

Now Mr Douglas would deal with the first argument, I don't know he would deal with the second argument, he would deal with the first argument in a way which has already foreshadowed. He would say, well, transmission of business as it is understood in TCR, as it is described in TCR, is different to transmission of business under Section 149 because transmission of business in TCR doesn't look at the commercial dealing between a transmittor and a transmittee. Rather, it looks at whether the individual has gone from one place to another and you will recall your Honour that he talked about the differences in transmission of business and how you looked at where the employee went and ask the question is the employee in the same kind of employment.

PN5353

So that is the spin he puts on it and that is the way in which you would get over the argument or seek to get over the argument in relation to people moving from Colonial to EDS. So we have actually dealt with that argument about the employee transmission and we have dealt with it in this way, Mr Douglas, as he has said again today, has pointed out that there is some special history because of the long service leave provisions and the role of Sir John Moore. He put some emphasis on it again today and he says it all goes back to Victoria, the Labour and Industry Act. He said today, well, it even goes back further than I thought. When we did our written submissions on I think 4 October but certainly early October last year, or in the subsequent ones, I just can't remember, your Honour, we actually went to the Victorian legislation as it was then and to the commentary as it appeared in Alleys Industrial Laws Victoria, edited by Jessop at the time, Dr Jessop at the time.

PN5354

We said these assertions that are being made by the applicants in this case just aren't well founded. There is no basis upon which you can determine by looking at the Victorian history all the provisions of the Metal Industry Award, the Long Service Leave Award, to come to the conclusion that there is a special kind of transmission of business that is different to that ordinarily considered in this Commission and that was considered by the Commission in the High Court case. So we say that there is an effective answer to that. I won't reply to what Mr Douglas said today in relation to Sir John Moore's role in those other matters because it is already in our documents. I don't want to add to that. But you will see, your Honour, from what I have just said in relation to these issues that what the applicants are trying to do is to set up a basis upon which at some stage they can go to the court or some other place and say the intention of the provisions is to under-cut, the intention of the order is to under-cut the rights that the interveners and others had in September 2000.

PN5355

Now we say the intention of the Commission is quite clear. It is in Section 106 and in dealing with the form of orders issued your Honour should be very clear and not create or allow confusion to be created by others. Now it is, as you have appreciated, your Honour, or there is in the TCR standard clause on transmission a reference to past service. In the course of his submissions Mr Douglas said that that allows past transmissions to be taken into account. I think they are the actual words he used but certainly that is the thrust. The question is for what purpose. What can the past service or what can past transmissions be taken into account for. Now we say that when you look at the TCR case you will find out for what purpose past transmissions are taken into account.

PN5356

The starting point is this, your Honour, it is the ACTU claim of 1982, certainly some time before the TCR case, but it was the claim that gave rise to the TCR case, and I am sorry I haven't got a copy of this, your Honour, but you have already got it. It is the first decision and it is at page 102 of the volume. Perhaps I could have it passed up, your Honour. My learned friend, Mr Ginters' volume. The section actually starts at page 97, your Honour.

PN5357

THE SENIOR DEPUTY PRESIDENT: Yes, this is the ACTU's position, isn't it?

PN5358

MR LAWRENCE: Yes, this is the ACTU claim and if you go to page 100 you will see clause C, redundancy, about half-way down and you will remember, your Honour, there is clause A, clause B, clause C. This is the redundancy part. Then through to clause D, they have transmission of business separate. This is at page 102. Clause 1:

PN5359

This clause shall have effect where a business undertaking or establishing ...(reads)... its ordinary meaning means . . .

PN5360

And I won't read that out:

PN5361

(2) Acceptance of employment with transmittee: where a person who at the time ...(reads)... or any prior transmittor . . .

PN5362

I emphasise that, your Honour, or any prior transmittor:

PN5363

. . . shall be deemed to be service of the employee with the transmittee for the purpose of ...(reads)... with the transmittor.

PN5364

I just stop there. C4, C5, C6 deals with - clearly the case in C5, the monetary entitlements on termination. Then it goes on :

PN5365

Operative employment with transmittee where an employee at the time of ...(reads)... the offer is made before . . .

PN5366

I won't read those but you will see there are some protections in there and there is in C a reference to the employee unreasonably refusing the offer. So the ACTU position at that time was perhaps not dissimilar to that which is set out in the document of recent origin and right from the word go the ACTU was not claiming in this moral case an entitlement to be made out from transmission where the person continued in employment. So in terms of exemptions from the obligation to pay, the first potential exemption, that is transmission of business, was therein in the claim. There has been some debate about how many exemptions there were or how many provisions there were, two or three, but the first one is there. Now this is a provision that hasn't been taken up in a variety of agreements and consent awards.

PN5367

The Amcor case is the classic one. I say the classic one because the Amcor case as you have heard was one where this kind of provision wasn't included and Finklestein J found that payments had to be made on the termination of employment even though looking at that that was a transmission of business case, a very clear one I would have thought. Now that matter has gone on appeal and the appeal was heard a couple of weeks ago and awaits decision. But we say that the position with the award, which was a consent award in relation to the Colonial employees, and the Colonial agreement, quite clearly didn't include that kind of provision, the transmission of business provision.

PN5368

The parties, very experienced and knowledgeable about TCR meant and what redundancy agreements and clauses were available, did not include that and that is the most significant thing we have said and I don't have to repeat it in any detail. We have said all the way along that the parties struck a bargain which didn't include transmission of bassoons and it shouldn't be put in now even there is a power. As a matter of discretion it shouldn't be put in. But we say, as I said before, that there is no power in that respect. But that is the basis of the way in which the Commission in the TCR case dealt with transmission of business. That was starting point and at page 54 of that same decision, right at the top - perhaps I should go to the bottom of 53, your Honour, under the heading "Redundancy":

PN5369

The ACTU claimed that the scheme should apply to all weekly and other employees ...(reads)... a transmission of business occurred.

PN5370

So the Full Bench was mindful of what had been set out in the ACTU claim. Then at page 75 we have the passage that has been referred to more than once in these proceedings. It is about three-quarters of the way down, your Honour:

PN5371

Two particular instances which the employers argued might want an application ...(reads)... the general prescription.

PN5372

Then it goes on to the acceptable alternative employment and superannuation matters. So they have already looked at one and there were two others that were raised by the employers. Now, your Honour, that is the background to the supplementary decision and you will see from the passages that we have referred to in our recent written submissions, 5 March, and indeed in the passages to which my learned friend referred today that the employers weren't happy with the idea that past service, any past service, should be taken into account. They said it should only be prospective. In relation to past service there were two questions. One, should past service with that employer be taken into account. Secondly, should past service with a transmittor to that employer be taken into account.

PN5373

Because obviously there would have been cases where employees who were coming in to an entitlement under this proposed award had worked with a company that had been taken over by the respondent or a party bound or even - you might have been able to trace it back through two or three or four or maybe more transmissions with company restructures and so on. What the ACTU was saying, consistent with what they said right at the outset in the claim was that they should be able to follow it back. So that if there was a transmission you could accrue their service, the service would accrue and it would work in that way just like the long service leave provisions where you could aggregate a number of periods of service. The Full Bench found in favour of the ACTU. Said, yes, you should be able to follow it back through the transmissions.

PN5374

Now of course those transmissions weren't covered by the TCR provision at that time and the TCR provision didn't operate retrospectively on the retrenchment but what it did do was to recognise that past service and aggregate it together with the service with the immediate employer. In that sense the ACTU succeeded on its claim and the employers were stuck with not only the service that the employee had with them but also a transmittor to them and a transmittor to the previous transmittor etcetera. So it went upstream. Therefore when you have a look at page 129 of the supplementary decision, I appreciate that you have got the - - -

PN5375

THE SENIOR DEPUTY PRESIDENT: It's a different edition.

PN5376

MR LAWRENCE: Yes, it might be easier if you are passed the volume of 9 Industrial Reports. Your Honour will see if first of all you turn to page 118, you will see that about a quarter of the way down on page 118 there is a heading "termination of employment" and what the Full Bench did from this page on was to take the various clauses and termination of employment is clause A and then it is number 1, you will see there, number 2, further down page 3. They made a commentary on each of these clauses. Then when you get to page 127 or 126, your Honour, you will see the heading at 126 "Introduction of change". Then on page 127 they go through the provisions to be inserted and then on page 128 clause C, redundancy. Again they go through it step by step.

PN5377

What they have done is to change the drafting a little bit from the ACTU claim and they have pulled in transmission of business from the party D as it was in the claim to put it under the heading of Clause C and at page 129 under the heading "Transmission of business" are these words, and you have heard them before but at the risk of repeating them:

PN5378

The only difference between the parties in relation to transmission of the business ...(reads)... or only after.

PN5379

I just stop there. It was of course for the purpose of aggregating service. Then they say:

PN5380

For reasons expressed later . . .

PN5381

and that is a reference to the passage on operative date:

PN5382

. . . in relation to the employers' argument that the whole of the order ...(reads)... of any award.

PN5383

Then they set out the provision. So if you are there at that page and you want to know what it is, what the reasons were or what the issue was, or more particularly if you want to know what purpose past service, past transmissions were to be taken into account, you then look at page 139 where the operative date section is. So we say that it is clear that what the Commission did was to say that for the purpose of calculating service in a redundancy that occurs on or after the date of this TCR provision, you are entitled to take into account the service with the employer prior to the date on which this obligation arises and indeed service with a transmittor or transmittors prior to that immediate employment. Therefore when you understand it in that light, there is no basis for confusion.

PN5384

It's clear that if it was applied in this case that it could not, on these principles, could not undermine the entitlements of the interveners and others as at September 2000 because the variation would only apply in relation to redundancies that occur after 4 December and the transmission of business would only come into effect for the purpose of determining their entitlements.

PN5385

THE SENIOR DEPUTY PRESIDENT: So you are saying that the FSU's and your own, I think, insertion of 4 December 2002 is purely for the purposes of clarity not for a change in the existing provision?

PN5386

MR LAWRENCE: Yes. That is right, your Honour. Your Honour, it is not necessary - there is one might say a potential risk in that if subsequent to 4 December there was a termination of somebody who had employment - - -

PN5387

THE SENIOR DEPUTY PRESIDENT: In a transmittor before?

PN5388

MR LAWRENCE: Yes. That is a potential risk. But on behalf of the interveners I can say this, your Honour, that if you did adopt the formulation of the TCR case with a reference to prior transmissions, that is transmissions occurring before the date, then your Honour should in these circumstances spell out that it only applies in redundancies that occur on or after 4 December because we are concerned, as I have indicated before, that the way in which the applicants have conducted this latest series indicates that they want to pursue an argument which we say is just inconsistent with your decision and inconsistent with the TCR case. Your Honour, the thing that stands out about this case is that no point is too unworthy for the applicants.

PN5389

They will take every point they can and they will confuse this litigation, they will confuse the situation and try to frustrate the interveners in pursuit of what they see as their legal entitlements. We haven't squealed about the cost of this but it has been a great burden on the interveners collectively and we are up against one of the best resourced corporations in the country and we want to do whatever we possibly can today to ensure that they are not able to take these unwarranted unmerited matters, arguments, at some stage in the future and we want you to make it clear in the settlement of the orders, your Honour, we ask this with respect, that you make it clear that what you said in paragraph 106 of your decision is the basis upon which the orders are made and therefore it will not impact on the interveners' position. That is it won't have retrospective operation in a substantive sense on the entitlement to redundancy payments.

PN5390

That, your Honour, I think probably deals with the critical issue in the matter as it stands and perhaps just a couple of points I need to go to first. There is probably one matter I need to refer to arising out my learned friend's submissions. He did say these matters had been raised. He said that it was raised in paragraph 510 and at paragraph 2189 but your Honour, when you get an opportunity to read those paragraphs, you will see they were fleeting references, fleeting references to this fallback position, the TCR ...... clause position and the issues that we are now dealing with or have dealt with today could not have been regarded as foreshadowed by the applicants in those fleeting references. There are some other matters that weren't touched on that are still relevant to the outstanding issues, that weren't touched on by Mr Douglas to date.

PN5391

We have dealt with Section 170MD(6) in our written submissions.

PN5392

THE SENIOR DEPUTY PRESIDENT: Yes, there are additional. That is perfectly in order. The written submissions were certainly meant to be treated as final.

PN5393

MR LAWRENCE: Yes and I don't go to anything as Mr Douglas didn't go to them today. We stand by what is in the written submissions.

PN5394

THE SENIOR DEPUTY PRESIDENT: That is understood in regard to all the parties and yourself as an intervener, Mr Lawrence.

PN5395

MR LAWRENCE: Thank you. As your Honour pleases.

PN5396

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Ginters? We will do that first.

PN5397

MR GINTERS: Thank you, your Honour. I would have forgot. Your Honour, having particular regard to what has just fallen between yourself and my learned friend, Mr Lawrence, as to taking the submissions as read, I don't wish to take your Honour through them in any detail or expand upon them in any great detail but there are a few points that need to be made, your Honour. My learned friend, Mr Douglas' submissions both orally and in writing in my respectful submission wholly ignore the finding that your Honour made at paragraph 85 in your Honour's reasons for decision. It is worth just reciting that. Your Honour found that:

PN5398

The answer to the question whether the Commission as currently constituted is bound by the TCR decisions to grant the applications as brought is no.

PN5399

We say that that is a clear finding by your Honour and it is a finding that my learned friend has not come to grips with in the sense that the submission they make is that the Commission must apply the TCR standards as reported in the IR decisions in IR volume 8 and volume 9. Clearly your Honour has heard debate about this matter previously and has formed a different view and the written submissions that he filed on behalf of the FSU, your Honour, made it clear that your Honour was entitled to do that and also make clear, in my respectful submission, that what the bank and what Colonial seeks your Honour to do now is entirely inconsistent with those reasons for decision and that the variations which are annexed to the FSU's submissions with the handwritten changes and strike through are variations which are consistent with what your Honour decided and are the variations that your Honour should make.

PN5400

Your Honour, I have cited throughout the written submissions a number of extracts and references to previous decisions of the Commission as to this prospective retrospective application that takes effect from a date but in relation to past and future events. It is quite clear that the case that was pressed on behalf of the CBA in 2989 was a prospective application, your Honour. With respect, my learned friend can draw no comfort from the reference to paragraph 515 of 2 September, your Honour. The reason for that is readily apparent. That was a reference to the TCR provisions as the fallback position but it was put in final submissions and final submissions in reply. So after the evidentiary phase of this case was completed and your Honour will well recollect that the FSU adopted a particular position in terms of filing evidence in these proceedings.

PN5401

It wasn't met with a claim that was a retrospective claim insofar as 2989 claim and it also wasn't met with a claim for a variation that took effect from a certain date in relation to future and past events. So the evidentiary phase of the case is completed, run on a certain basis and then my learned friend gets up in final submissions and says you can put all that to one side, your Honour, because we will have this fallback position. That is the fundamental denial of procedural fairness or natural justice which I have sought to draw issue with in the written submissions, your Honour. What it has done is it has deprived the FSU of an opportunity to structure a case in response to an application. Put another away, the FSU structures its case in response to the application it has to meet, the evidentiary phase of that case ends and my learned friend then gets up and says, well, let's disregard how he structured the case, we want a different case now.

PN5402

They simply can't do it, your Honour. They shouldn't be allowed to do it and what they are asking your Honour to do is entirely inconsistent with your Honour's reasons for decision and the basis upon which a substantive case was run before the Commission. Your Honour, my learned friend, Mr Lawrence, has dealt with this question of the transmission of business provision and the operative date of it at some length in his oral submissions today and I don't wish to take your Honour to that in any further detail but it is worth making this point, your Honour, at no stage has my learned friend, Mr Douglas, on behalf of his clients, disavowed the proposition which is put both on behalf of my clients and on behalf of the interveners that what the bank and Colonial are seeking to do by the variations that they propose is to under-cut or cut the ground from underneath both the interveners' case and from underneath the FSU's case in the Adams proceedings.

PN5403

As my learned friend says, I thought was fairly clearly but what he is doing, your Honour - - -

PN5404

MR DOUGLAS: That has been absolutely clear from the moment I stood up on the first day.

PN5405

MR GINTERS: It hadn't, your Honour. But insofar as the CBA is concerned, 2989 did not do that. What is sought to have been done, that is what is sought to have been done in 1820 and it has been before your Honour twice and your Honour has rejected applications in relation to that matter twice and it is abundantly clear from your Honour's reasons for decision that what your Honour was not proposing in orders being made in these proceedings was by stealth to get that which the Commission has refused to do on a number of occasions, ie under-cut the FSU's application in the Adams' proceedings by granting a retrospective variation or a variation to the award that took effect both in futuro and in relation to past events. So it is clear that what the bank is seeking to do is to render those proceedings that have been hard fought in 1820 otiose and also under-cut by stealth the Adams proceedings that are presently before Moore J in the Federal Court.

PN5406

Your Honour, again if I could just take your Honour very briefly to the written submissions in reply. At paragraph 7 this is said:

PN5407

The issue to be - - -

PN5408

THE SENIOR DEPUTY PRESIDENT: Just a moment.

PN5409

MR GINTERS: I am sorry, your Honour.

PN5410

PN5411

THE SENIOR DEPUTY PRESIDENT: Paragraph 7?

PN5412

MR GINTERS: Paragraph 7, your Honour. It is the second-last and last sentence:

PN5413

The issue to be determined is therefore whether having now decided these standards are appropriate . . .

PN5414

I stop there and interpolate, your Honour. Your Honour's determination that these standards are appropriate must be read in the context of your honour's decisions and I don't - I won't take your Honour to the relevant extracts because they are set out in the written decisions but it is quite clear in my respectful submission that when one views your Honour's decision in toto, when you look at the various conclusions that your Honour reached, your Honour was not deciding the matter on the basis that there would be retrospective variations or, as I have said, variations that operate in futuro and also in relation to past events. But can I take your Honour back to paragraph 7. My learned friend's submissions go on:

PN5415

If the Commission has any discretion to depart from them, ie the test case standards, - - -

PN5416

And that submissions, and it is repeated a number of times in both the submissions and the submissions in reply, just wholly fails to come to grips with the finding at paragraph 85 of your Honour's reasons for decision, that your Honour is not bound to apply the TCR standards.

PN5417

THE SENIOR DEPUTY PRESIDENT: I think 85, and I haven't looked at it again immediately, was a ruling that the TCR standards didn't require me to adopt what I will call the principle application made on behalf of the various applicants.

PN5418

MR GINTERS: Yes but that is also - can I read paragraph 85 to your Honour?

PN5419

THE SENIOR DEPUTY PRESIDENT: Yes, that is a good idea.

PN5420

MR GINTERS:

PN5421

I hold that the answer to the question whether the Commission as currently constituted ...(reads)... who in his written submissions stated . . .

PN5422

and I won't read your Honour that part but that finding, your Honour, or that conclusion must be read in the context of both paragraph 106 that my learned friend, Mr Lawrence, took you to which is that:

PN5423

In any event in the two Colonial awards and also in the matter of 1999 CBA award ...(reads)... encountered in the future.

PN5424

This is the point that Mr Lawrence spent some time discussing with your Honour, that in my respectful submission it is quite clear that when the application in 2989 was brought before your Honour as a prospective application, knowing in the full knowledge that there is a vigorously contested application for retrospective variations, it simply cannot be the case that my learned friend can stand up in submissions, final submissions, and submissions in reply and divorce the case from that which is pressed, invite the Commission to do something entirely different and invite the Commission to do something which cuts entirely against considered decisions of the Commission, namely decisions which make it quite clear that this Commission is not prepared to entertain applications which will undercut the FSU's proceedings in Adams in the Federal Court.

PN5425

Twice they have tried to do it. Twice the Commission has stood those proceedings adjourned on the basis that the court or the tribunal is the proper jurisdiction for those matters to be determined in. Your Honour, also at paragraph 107 under the heading "Retrospectivity" your Honour said this:

PN5426

The application concerning the 1999 CBA award was prospective. The variation will have effect on and after today.

PN5427

In my respectful submission, your Honour, it is clear that what your Honour was intending to do was to only grant prospective variations and orders which are in the nature of the orders attached to the FSU's outline of written submissions are in my respectful submission consistent with your Honour's reasons of decision and they are orders which would be in terms of the transmission of business and the adequate alternative employment provisions applying on and with effect from 4 December 2002, not ones which would allow my learned friend to argue as is quite clearly what they intend to argue that a TCR standard would under-cut the ground from under my client's federal court proceedings. Unless there is anything further, your Honour, those are my submissions.

PN5428

THE SENIOR DEPUTY PRESIDENT: I have a question which I direct to you but it is in fact directed to all three advocates. Am I correct in my belief that the purpose of these proceedings is to settle orders flowing from the decision I made and that that purpose is to make those orders as consistent with the decision as is reasonably possible?

PN5429

MR GINTERS: Yes, your Honour. Can I add, in undertaking that exercise and it is quite clearly what we are here to do, your Honour. I undertaking that exercise your Honour would need to bear in mind or take into consideration your Honour's reasons for decision, that is axiomatic, but also, your Honour, the fact that there is a set of proceedings certainly insofar as my client is concerned in 1820 which stand adjourned and if your Honour was, in my submission, to make orders proposed by the CBA, that would have the effect of rendering those proceedings otiose and may arguably and no doubt my learned friends would say would have the effect of rendering the Adams proceedings in the federal court redundant. That is not a course which your Honour should adopt.

PN5430

THE SENIOR DEPUTY PRESIDENT: Yes. Whether that is a reason to induce me to stray from what I otherwise might consider to be the proper implementation of the decision is perhaps moot.

PN5431

MR GINTERS: Well, in my respectful submission, your Honour, the proper implementation of your Honour's reasons for decision would be orders made in accordance with annexures 1 to 4 of the written submissions.

PN5432

THE SENIOR DEPUTY PRESIDENT: I certainly understand that submission.

PN5433

MR GINTERS: Thank you.

PN5434

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Ginters. Mr Douglas?

PN5435

MR DOUGLAS: In answer to your Honour's question, yes but what is only reasonably open to your Honour is the implementation of the TCR model as to the two provisions as it exists now and that is to say it is not open to your Honour to insert the dates.

PN5436

THE SENIOR DEPUTY PRESIDENT: Yes, no, I understand that, Mr Douglas.

PN5437

MR DOUGLAS: Your Honour, I don't want to get uptight about this but my learned friend really has painted the picture to you about the reasons why your Honour adjourned 1820 nearly two years ago which is frankly not correct. Your Honour will remember that Mr Haylen convinced you to adjourn 1820 on the basis that the adjournment would be short because the Adams case was about to be heard and your Honour expressed the view that you might be assisted by the court's view as to whether a redundancy had arose or not and secondly because the FSU gave an undertaking to the court that it would not be seeking orders. Now, your Honour, the position as to that undertaking is very uncertain at this stage but certainly the adjournment was never granted by your Honour on the basis that my learned friend has suggested this afternoon.

PN5438

We have never shied away from the fact that we will do everything possible that is to say the CBA and Colonial and interests that I represent, everything that is legitimately open here and in the court to defeat what we say are totally unjustified claims which if succeed will result in windfall payments to employees to don't deserve payments.

PN5439

THE SENIOR DEPUTY PRESIDENT: If it is any assistance to you, you have made that position clear throughout your case.

PN5440

MR DOUGLAS: Yes, your Honour. I am not - - -

PN5441

THE SENIOR DEPUTY PRESIDENT: I remember that last phrase particularly.

PN5442

MR DOUGLAS: Yes, and I am not embarrassed by you stating that, your Honour. Now it is clear when you - and I don't want to read from your Honour's decision but when you look at paragraphs 83, 84 and 85 and then go to 105 and 106 of your Honour's decision it is clear that your Honour said as to our applications, that is the form of words that we were asking the Commission to implement, you decided that that should not or could not be done within the framework of TCR. Having decided that to be the position you said, however, on the basis of ambiguity or uncertainty and as a question of merit it was appropriate for TCR to go into the four instruments. That is the conclusion your Honour reached. The question now is whether TCR involves TCR as it is ion the model clause, as it currently exists for instance in the award simplification case, in its wording, not precisely where the transmission of business clause went; or can it be dissected in the way that my learned friends suggest and we say it can't.

PN5443

Your Honour, I thank my learned friend, Mr Lawrence, for the submission that he made as to what should be read into the second TCR decision. Can I say that in looking at the transcript it is apparent that it was Mr Lawrence and not Mr Ginters who was the one that said in relation to the words in the decision of the first TCR decision, the words:

PN5444

two particular instances which the employers argue might warrant an application for relief from the obligation to pay the general prescription ...(reads)... superannuation schemes on retrenchment.

PN5445

Now it was Mr Lawrence in the proceedings that argued that the two particular instances that they were referring to there was acceptable alternative employment and transmission of business. That is clearly so when you go to the transcript you will see that that is what he argued for. He argues differently here today because he is now aware of the precise words of the Full Bench, what the Full Bench said in its second TCR decision. Clearly the Full Bench was concerned with acceptable alternative employment and superannuation. Now having made that point the Bench then went on to say:

PN5446

We do not wish to prevent an employer making an application to be exempted from the ...(reads)... for an employee.

PN5447

That is the first instance.

PN5448

But we would point out that in our decision severance payments are not made for the purposes of assisting employees to find alternative employment.

PN5449

Where such an application - that is an application to be exempted on the basis or relief under the acceptable alternative employment clause, was made - they are my words - where such an application was made it would be important to consider whether previous service with the previous employer was recognised as service with the new employer. In other words, the concept similar to the transmission of business concept. Did the new employer guarantee the service in the new employment. That would be a key thing to determine whether the Commission should give relief or not. It is the very same issue that transmission of business is about. Then they went on:

PN5450

However, we make it clear that we do not envisage severance payments ...(reads)... transmission of a business.

PN5451

Then you will remember they interchangeably referred to transmission of business in that sense as being transmission of employment.

PN5452

We intend to provide for transmission of employment in terms similar to clause 55 of the Metal Industry Long Service Leave Award.

PN5453

So that the transmission of business clause that they got from the Metal Industry Award of 1976 which was unchanged in its wording except for a couple of machinery things because on the one hand the clause was dealing with long service leave where it was here it was going to deal with being a redundancy clause. What they were saying was transmission of business as in the new redundancy model would be dealing would be dealing with transmission of employment. Your Honour, it is absolutely clear that the transmission of business clause, transmission of employment clause, in the redundancy clause is not there and was never intended to be there for the purpose of aggregating service. My learned friend is clearly wrong about that.

PN5454

If he is right, of course, then it would be inappropriate for the date to go in because it would be potentially disadvantaged some of his clients, particularly in relation to prior transmissions. Now that is not what he is about, your Honour. He is about creating a smokescreen as to the true meaning of what the Bench did in these two cases. Now your Honour, could I assist your Honour in relation to that and hand up a copy of the 1964 Graphic Arts, Metals Long Service Leave Award. This award was in terms identical to the Metal Indsutry Long Service Leave Award that was made as a result of the 1964 test case decision. The transmission of business clause in this award became the transmission of business clause in the 1976 Metal Indsutry Long Service Leave Award. That is to say, the transmission of business clause that was adopted by the Full Bench in TCR 1 and 2.

PN5455

That can be seen - it was clause 5, your Honour, on page 447 of the award. Your Honour will see that it is in exactly the same terms as the transmission of business provision that was picked up in 1976 and put into the redundancy, model redundancy clause. You will also note that - - -

PN5456

MR LAWRENCE: How does this arise out of reply, your Honour. It is a document that he has obviously had on the bar table. It was a document that related to a matter that he raised in his submissions earlier today. A document that he didn't press then and we have got it in the course of reply. It is unfair, your Honour.

PN5457

MR DOUGLAS: Your Honour, I bought copies of this document along because I had in mind the possibility that my learned friend would put the submission that he did in fact put today and I am replying to the submission that was put by Mr Lawrence to the effect that the transmission of business clause is in the TCR standard for no purpose other than aggregating service.

PN5458

THE SENIOR DEPUTY PRESIDENT: He certainly has made that submission.

PN5459

MR DOUGLAS: Yes, and this is in reply to that, your Honour.

PN5460

THE SENIOR DEPUTY PRESIDENT: All right.

PN5461

MR DOUGLAS: Your Honour, if you look, as I have said, at the transmission of business clause here is exactly the same as the one that found its way into the redundancy standard from the 1976 Metal Industry Long Service Leave Award. The thing that my learned friend consistently fails to understand or maybe he deliberately attempts to confuse by suggesting that some way or other - - -

PN5462

MR LAWRENCE: Your Honour, I think that is uncalled for.

PN5463

THE SENIOR DEPUTY PRESIDENT: There have been a few allegations of confusion during the proceedings, Mr Lawrence.

PN5464

MR LAWRENCE: It is the reference to deliberately.

PN5465

THE SENIOR DEPUTY PRESIDENT: I see.

PN5466

MR DOUGLAS: I withdraw the word "deliberately", your Honour. I am certainly not intending to slight my learned friend in any way.

PN5467

THE SENIOR DEPUTY PRESIDENT: Very well.

PN5468

MR DOUGLAS: There is absolutely no connection whatsoever between Section 149(1)(d), in fact I think it was Section 61(d) back in 1964, and the transmission of business clause that was placed in this 1964 long service leave award. In fact what this clause was attempting to do in the long service leave award was to preserve long service leave entitlements of employees who moved from one employer to another. Hence the transmission of employment reference in the TCR decision. Likewise the adoption of this clause in the TCR decision was designed to protect the severance pay entitlements of employees who transfer or who have their employment moved from one employer to another, where there are transmissions of employment.

PN5469

Now, your Honour, that provision came from a document that was called The National Code on Long Service Leave. It is a document that was referred to by the Full Bench that made that award and the Metal Indsutry Award in a decision on 11 May 1964 involving Moore, Sweeney and Gallagher JJ and reference is made in that decision to what I say is the National Code. Likewise there was an earlier long service leave test case decision being one which involved a decision in 1958 and 59 where in the Commission under Section 41D at the time refused in the public interest to proceed to make a long service leave award in a test case. The National Code was referred to in that decision. The record of the 1964 decision will show, your Honour, that I appeared in that proceeding as the junior of Mr A.P. Aird, for the employers.

PN5470

It is my recollection that that National Code contained the transmission of business clause that ultimately went into the 1964 Long Service Leave Award. I said on the last occasion that that came from the Labour and Industry Act 1958. In fact it was in the Labour and Industry Act 1958 as Section 151(3) but it derived originally from Act 5771, the 1953 Labour and Industry Act Victoria and I hand up a copy of the relevant part of that Act.

PN5471

MR LAWRENCE: Your Honour, my learned friend has been through this before.

PN5472

THE SENIOR DEPUTY PRESIDENT: I agree that it has been argued before.

PN5473

MR LAWRENCE: Yes, 2237 and we responded to it in our written submissions of October 2002. So I am not going to ask for an opportunity to respond to this because we have already committed ourselves to writing and I just say that this is a repeat, it is unnecessary and it doesn't really arise out of what I put and Mr Ginters put today.

PN5474

THE SENIOR DEPUTY PRESIDENT: It is starting to drift a fair way away from it, Mr Douglas, I must say that. I agree with Mr Lawrence that the point has been argued before the decision was made.

PN5475

MR DOUGLAS: Your Honour, I am only handing this up as part of my reply to Mr Lawrence. If your Honour feels that that is unnecessary then I don't tender it, your Honour.

PN5476

THE SENIOR DEPUTY PRESIDENT: Yes, I do, Mr Douglas.

PN5477

MR DOUGLAS: Thank you, your Honour. Your Honour, could I just in relation to the submission of Mr Ginters to the effect that we made noises about the model TCR provisions only as an alternative sort of thing in reply, that is not so. At beginning about paragraph 504 on 2 September as part of our case, not in reply, this occurred before Mr Lawrence made his submissions and before my learned friend, Mr Ginters, made his submissions. I dealt with the transmission of business principle and at paragraph 5110 I said:

PN5478

Now, your Honour, with the benefit of hindsight maybe each of the three Section 113 applications ...(reads)... to the Colonial certified agreement.

PN5479

Now, that was part of our case, I came back to it at paragraph 2189 in reply and I came back to it in reply because of a submission that Mr Ginters had made. If your Honour pleases.

PN5480

MR GINTERS: Your Honour, can I just very briefly with leave address that last point my learned friend raises. It doesn't get any better, your Honour, they are both the submissions that are made in final submissions after the evidence has been tendered and the reason why it doesn't make a difference, your Honour, is can I invite your Honour to have a look in due course at paragraph 12 18, which was my learned friend's opening and I will give your Honour the date. That is on 30 April 2002 and my learned friend has this to say:

PN5481

Strictly speaking of course the applicants here need do no more than ask for the inclusion of the Commission's model transmission of business clause.

PN5482

There is the opportunity that would have allowed them to do that in the opening.

PN5483

However it makes good industrial sense, as we said, to spell out the course ...(reads)... offered by the transmittee employer.

PN5484

That is paragraph 1219, your Honour, of the opening. So in the opening my learned friend disavows reliance upon the TCR provisions and it is born in his final submissions and his submissions in reply after the evidence is closed.

PN5485

THE SENIOR DEPUTY PRESIDENT: Very well. I will reserve my decision. I contemplated an ex tempore but there is too much to be considered arising beyond the written submissions today for me to do that now. So I will reserve. I do intend to have my decision and whatever orders flow from that issued as promptly as I can. The matter has gone on for a long time and it shouldn't be held up if that is at all possible. I will not fix a time but the parties and interveners can be assured that I will direct my earliest attention to it as soon as I can. I adjourn this matter indefinitely.

ADJOURNED INDEFINITELY [4.00pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #F1 COMMONWEALTH AND COLONIAL OUTLINE OF SUBMISSIONS FORWARDED 26.2.03 PN5247
EXHIBIT #F2 SUBMISSIONS IN REPLY FILED 6.3.03 PN5247
EXHIBIT #E1 OUTLINE OF SUBMISSIONS FILED 5.3.03 PN5247
EXHIBIT #C3 SUBMISSIONS FORWARD BY PHILLIPS FOX ON 5.3.03 PN5247
EXHIBIT #FE COLONIAL GROUP ENTERPRISE AWARD 1996 PN5255
EXHIBIT #F4 COLONIAL GROUP ENTERPRISE AGREEMENTS 1999 DRAFT PN5255
EXHIBIT #F5 COLONIAL RETAIL NETWORK MULTI-SITE FRANCHISE INTERIM AWARD 2000 PN5255
EXHIBIT #F6 COMMONWEALTH BANK OF AUSTRALIA EMPLOYEES AWARD 1999 PN5255
EXHIBIT #E2 FSU'S COMMONWEALTH BANK OF AUSTRALIA EMPLOYEES AWARD PN5255
EXHIBIT #E3 COLONIAL RETAIL NETWORK MULTI-SITE FRANCHISE INTERIM AWARD 2000, FSU DRAFT PN5255
EXHIBIT #E4 FSU'S COLONIAL GROUP ENTERPRISE AWARD 1996 DRAFT PN5255
PRIVATE EXHIBIT #E5 FSU DRAFT COLONIAL GROUP ENTERPRISE AGREEMENTtc \f P \l 9