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C2015/8117, Transcript of Proceedings [ 2015] FWCTrans 742  (24 December 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052896

DEPUTY PRESIDENT BOOTH

C2015/8117

s.603 - Application to vary or revoke a FWC decision

Svitzer Australia Pty Ltd

and

Australian Institute of Marine and Power Engineers, The

(C2015/8117)

Sydney

10.11 AM, FRIDAY, 18 DECEMBER 2015

PN1

THE DEPUTY PRESIDENT: Good morning, all. I see we have a new appearance, Mr Easton.

PN2

MR EASTON: Good morning, your Honour. For Svitzer, who I think is a respondent in the 10 o'clock proceedings and the appellant at 12.00.

PN3

MR McNALLY: I think we both are.

PN4

THE DEPUTY PRESIDENT: Very good. Permission to appear has already been given to legal representatives, so we will have that permission covering you too, Mr Easton.

PN5

MR McNALLY: Mr Burns is absent, he's in Perth, your Honour. I appear for the - - -

PN6

THE DEPUTY PRESIDENT: It's a wonder we didn't cross paths. I was there until midnight last night.

PN7

MR McNALLY: Well, he probably would have been around midnight last night over there.

PN8

THE DEPUTY PRESIDENT: I wanted to raise a procedural question with the parties if I may before we commence. Initially, I listed the two matters that are

PN9

for hearing today sequentially, the section 603 matter which was brought on at my initiative and the 604 matter which Hatcher VP kindly allocated to me to hear the stay application in regards to that and I thought that the two arguments were subtly different, but upon reflection there is a certain commonality of factual materials, so I just wanted to ask the parties your views about whether or not we ought to hear all the argument together and then clearly from Svitzer's point of view there would be a primary argument and then the alternative argument in respect to AIMPE, the argument will to say nay in relation to both, but I'm really in your hands.

PN10

I'm happy to do it sequentially if you prefer and the in the event that the 12 o'clock matter is relevant, we can rely upon submissions and evidence if there is to be any in the 10 o'clock matter or we can deal with them both together. Whatever suits you. Mr McNally, why don't you give me your view first.

PN11

MR McNALLY: I don't really care. I'm in the nature of a respondent in both of them, I think.

PN12

THE DEPUTY PRESIDENT: Well, we might say you both are respondents on the first.

PN13

MR McNALLY: He's the respondent in the first and the applicant in the second.

PN14

THE DEPUTY PRESIDENT: Yes. What do you think, Mr Easton.

PN15

MR EASTON: I think the cleanest approach, your Honour, might be to do it sequentially with the 603 matter first. The 603 matter assumes the validity of Cambridge C's order and then considers revisiting it and then if - because the outcome of that is very likely to affect the balance of convenience on the stay application in the second one. There is likely to be overlap in terms of balance of convenience-type arguments which would seem most appropriate to take those matters from the first application as read in the second. But that would seem, at least at first blush, the more logical progression.

PN16

THE DEPUTY PRESIDENT: As it happens, that confirm my original thinking and then I wondered whether I had been wrong, but I think I will take your submissions and adopt them. I think that's sensible, but what I would say is if we do complete the 603 early then I'm happy to - and if it is relevant to do so, commence the 604 rather than wait here until the 12 o'clock listed matter unless there's anybody who's aware of it and coming at 12 o'clock. No-one on your side, Mr McNally, would be inconvenienced?

PN17

MR McNALLY: I'm not sure what we're doing.

PN18

THE DEPUTY PRESIDENT: Well, we're going to start the 6.03 matter and depending on the outcome of that we either do we don't - - -

PN19

MR McNALLY: That's the referral matter.

PN20

THE DEPUTY PRESIDENT: No, the 603 is the revocation. So we are going to begin with the revocation. I will make a decision in relation to that. If I were to revoke, then that would rather have the appeal fall away. If I don't, then the appeal matter remains and the stay application goes forward and all I was suggesting was that rather than stand on ceremony and waiting until 12 o'clock to start that, we could go straight onto it if it was relevant and that would be a course of action that would be appropriate, as long as there was nobody who was coming just for the 12 o'clock matter and who be excluded by that early start.

PN21

So the question of sequence I've decided, it's as listed, the section 603 and then the 604. It's just a matter of whether there's anybody from your team who would be coming for the 604 who isn't here yet. Mr Byrne shakes his head for the purpose of the transcript. I note, Mr Byrne, you were absolved from the remarks that I ascribed to you on the last occasion - they were all ascribed to Mr Michael Burns by the transcript recorders and that's a function of the new order that we have where the recorder is not in the room and can't see any body language, but those matters to me are too trivial to spend time altering in transcript, so I hope you will - or rather I hope Mr Burns, more to the point, will forgive that error.

PN22

All right. I think, Mr McNally, unless you're keen to make submissions about what I've just said, I think we might begin with the 603. Okay. So there is no real rhyme or reason about who goes first although there's a sort of yea and nay, so perhaps yay should go first, which means Svitzer, so Mr Easton.

PN23

MR EASTON: I think that's the most logical course again, your Honour. Your Honour has hopefully received the outline of submissions filed on Wednesday afternoon in accordance with last week's directions. I can hopefully take it that your Honour has read those.

PN24

THE DEPUTY PRESIDENT: And also Mr McNally's as well.

PN25

MR EASTON: As requested we've addressed the two key issues, one being whether there is a power under - sorry, whether the power under section 603 is available and, secondly, whether it should be exercised. The power under section 603 is a very broad power and the way that it is - sorry, it has been applied by the Commission to date seems to be a fairly narrow approach rather than a broad approach despite the breadth of power available.

PN26

This matter is very much a matter that sits squarely within what could be understood to be intended by section 603 where there is different circumstances now to the circumstances that applied when the first - when the application was first made, the interim application was first made and the power ought be exercised on this occasion and the exercise of that power would not offend what seems to be principles rather than statutory limitations on how the power is exercised.

PN27

At paragraph 13 of the outline of submissions, I provided three examples of how the power has been exercised. Those three could well literally be the most recent three, but they're certainly a useful three. The first one that's referred to there, BHP Coal, it's helpful to appreciate that in that case it was an example of one member of the Commission revoking another member of the Commission's order. It appears from the decision that the matter was reallocated from Lawler VP to Spencer C, but nonetheless it illustrates that dimension of the power available in 603, that it's not limited to one member revoking or varying their own decision.

PN28

The second matter, Victorian Off‑Course Agents Association makes the point or reveals that the power is available to revoke earlier decisions where you information about the previous circumstances puts a light on the appropriateness of the original order. Then the third decision referred to there, Endeavour Energy, is one where circumstances changed significantly after the making of the Commission's decision and so quite appropriately the parties revisited the earlier decision to accommodate the changed circumstances and in that matter it was a change to the accreditation process for testers in relation to drug testing, and so the parties needed to revisit the onsite drug-testing arrangements to accommodate that change is circumstances.

PN29

At paragraph 14 of the outline, I provided analysis in some detail of Ross P's decision in Grabovsky. That's G-r-a-b-o-v-s-k-y.

PN30

THE DEPUTY PRESIDENT: I know how to spell it, Mr Easton. I don't mean to insult you, I'm just making a rather cheeky point that I've had a long association with Mr Grabovsky.

PN31

MR EASTON: Yes, I saw that your Honour features in the early decisions. It was, of course, more for the person who or the computer that might type this later, but yes, I'm sure your Honour doesn't need to be told the very long history of that matter.

PN32

Grabovsky's case is helpful because his Honour provides what seems to be the most detailed analysis to date of the scope of powers of section 603. Of course, his Honour didn't make a decision. Sorry, he declined to make a decision under - make the order under 603, but nonetheless provides a helpful analysis of the scope of the power available.

PN33

Again, these decisions are revealing how the Commission deals with these kinds of applications by way of principles applied, rather than any jurisdictional limitation, but they're nonetheless informative. In the present situation, none of those limitations recognised by the Commission in terms of application principles, none of those limitations apply to this matter and referring specifically there to the principle that 603 shouldn't be used to usurp the appeal processes under the Act, and the very fact that we have two different proceedings on today makes it abundantly clear that this application is not usurping the appeal that is also on foot.

PN34

This application very much assumes the validity of the Commissioner's original order and therefore assumes the validity of your Honour's capacity to vary or revoke that original order. It's a different position to that in relation to the appeal and we've attempted to make that clear in the submissions that we have, of course, appealed Cambridge C's decision and order, and are asserting in that appeal that the power wasn't properly available and then, of course, this matter we necessarily assume the validity of that order and deal with whether or not that order should be varied or revoked.

PN35

And so that principle is not offended by the application and to the extent that it be a limitation in how 603 is available, that it's limited to matters where circumstances have changed, this is one of those matters where the Commission is contemplating the continuation or the revocation or the variation of that order in different circumstances to those that applied when Cambridge C considered the original application.

PN36

Moving seamlessly to the merit question, the fundamental difference is borne out by looking at Cambridge C's interim decision and the basis upon which Cambridge C made the original order.

PN37

Now, it's clear from this decision that the position that the institute put to Cambridge C was that the scope application needed to be determined before the terms and conditions of employment of the agreement could be determined and that if the interim order was not made, then that opportunity would be lost because the scope application would be futile.

PN38

Now, part and parcel of that position put by the Institute to Cambridge C is necessarily a submission and an application that the bargaining be restrained in order to have the scope application heard before the terms and conditions in the bargaining process can be finalised and that we can see is what featured strongly in the Commissioner's evaluation of the balance of convenience and caused the Commissioner to restrain Svitzer from otherwise exercising rights available to Svitzer under the Act in terms of rights in the bargaining process.

PN39

Now, the PABO application wasn't before Cambridge C on that day and it was known to Cambridge C that an application had been made and there's some brief discussion at the commencement of the proceedings on 3 December about the existence of the application, but that is all and in looking at Mr McNally's submissions filed on Wednesday, he suggests that because Cambridge C was aware of that application therefore there's no new circumstances now.

PN40

That submission is far too simplistic when one looks at Cambridge C's reasoning insofar as what was clearly a determining factor for the Commissioner was the need to resolve the scope application before resolving the terms and conditions of the enterprise agreement.

PN41

Now, where that leaves the parties is of course a matter that your Honour explored last week in the PABO application itself, but it is the reality of the situation now that the Institute, and I don't suggest that the Institute was being disingenuous on 3 December but the Institute now is maintaining an inconsistent position to the position that it put to Cambridge C on 3 December in that it is now actively seeking to take protected action, which can only be to advance its position in terms of negotiating terms and conditions of an agreement.

PN42

There's a whole subset of arguments there about what agreement and what terms could be advanced by the industrial action, but in short form they wish to take industrial action in order to advance their position on the terms and conditions of the agreement whilst at the same time having the benefit of the Commission's interim order preventing the employer from doing the same thing. So from that point of view, the circumstances are materially different to those considered by Cambridge C.

PN43

The consideration of the question of whether the Commission should vary or revoke that original order comes at the Commission's initiative and there would seem to be at least a couple of options available if your Honour was to entertain doing anything under section 603, and of course the two key options are to revoke the original order or to vary the original order.

PN44

Now, those two options conceptually put the debate into this kind of position that the Commission could presently continue what was Cambridge C's intention that the bargaining be restrained until the determination of the scope application and could do that by varying the interim order to similarly restrain the Institute or the second conceptual option is to revoke the order and then leave both parties to whatever rights they have under the legislation.

PN45

Now, the difficulty with the second option and it's still for Svitzer's point of view the preferred option over essentially the third option of do nothing. The difficulty with the second option is that in dealing with this matter on a continuum, there has already been a significant effect of Cambridge C's interim order in that the intended course of action by the employer and the other two unions was to put the agreement to ballot this year. So that option has been lost and to revoke the order altogether is better than leaving it there as I say, but it then would leave the scope application on foot and the capacity of the Institute to take protected action and possibly have Svitzer having the option of putting the agreement to a vote in January knowing that scope application was is to be heard late January.

PN46

The first of the conceptual options that I referred to there being the variation option, as I say, is a way of continuing the intention of Cambridge C to restrain the bargaining process in order to determine the scope application, but to do so using the well-worn phrase "on a level playing field" by having each party restrained from exercising rights that would otherwise be available under the Act, and if the Commission is inclined to make any changes to Cambridge C's order, given the time parameters that we're dealing with, Svitzer's preferred form of alteration to the original order would be a variation of the order so that the Institute is similarly restrained from exercising its powers under the Act.

PN47

Now, of course, all of that is on the assumption that there is a power available and it's a power available that can otherwise prevent a party from exercising legal rights that it has and that featured in passing in the oral submissions and exchange with Cambridge C on 3 December, that very notion that section 589 was being used to effect a party's rights that are available to them, but it ought not be an obstacle or considered to be an obstacle to the Commission now to similarly restrain the Institute from exercising whatever rights it might have under PABO application, because that's the very nature of the power available under section 589 that Cambridge C found that he had and that we assume is available if it's available.

PN48

I'm getting into back to the future-type logic arguments here about whether something properly existed or whether we need to go back and change it, but to the extent that it is an order that's effective, an equally effective order in the present circumstances would be to restrain both sides from exercising their rights under the Act in the bargaining process.

PN49

Of course, the right to request employees approve an agreement is one right in the Act that is part of the bargaining process in itself; the employer's capacity to bring forward or delay the putting of a vote is one dimension in the bargaining process in the same way that taking protected action is another dimension in the bargaining process or event the threat of protected action is a dimension of the bargaining process, which in assuming the validity of the original order ought pose no difficulty for the Commission to restrain the exercise of that right in order to achieve clearly what Cambridge C thought was appropriate to achieve which was the restraining and the delay of the enterprise bargaining process pending the scope application.

PN50

THE DEPUTY PRESIDENT: Had you intended to say anything about what Svitzer's intentions would be were that course of action adopted? If option 1 were to be adopted, then where would that leave your appeal?

PN51

MR EASTON: It would leave - it would render the stay unnecessary and we would then have to reconsider the utility of the appeal, given that we can't go back in time and fix the effect of the original decision, but it would certainly remove the utility or the necessity for the stay application and that option 1 as I say would leave the parties in the position that option 1 as I say would leave the parties in the position that neither can exercise rights before the determination of the scope application.

PN52

If there's any particular matter that your Honour would need me to address on that, I am happy to assist, but I think that's the - - -

PN53

THE DEPUTY PRESIDENT: Thank you. I follow that clearly, thank you. Mr McNally.

PN54

MR McNALLY: Thank you. At 12.35 yesterday, by reason of the fact that the company Svitzer has refused to negotiate with the Institute concerning an enterprise agreement on a number of outstanding matters, the Institute took the first step towards obtaining a bargaining order and issued a notice under section 229(4) of the Fair Work Act. It served it upon the managing director of Svitzer, Mr Albert Umansky, Mr Steffen Risager, most of whom are here and the Maritime Union of Australia and the Australian Maritime Officer's Union and the solicitors for Svitzer. I just hand up a copy of the section 229(4) notice.

PN55

You will see reflected in the notice the 15 outstanding issues that were identified in the affidavit of Mr Yates, in the protected action ballot order application when he gave his evidence.

PN56

THE DEPUTY PRESIDENT: It might be prudent to mark this as an exhibit. I presume you've handed that to Mr Easton?

PN57

MR McNALLY: I have, yes.

PN58

THE DEPUTY PRESIDENT: We will mark that as exhibit M1.

EXHIBIT #M1 SECTION 229(4) NOTICE

PN59

MR McNALLY: Now, since elective agreements or company agreements or enterprise agreements or whatever they're called were introduced into the tug industry in 1996, there has never been in respect of any company a single enterprise agreement to govern the Maritime Union, the Australian Maritime Officers Union and the Institute with any employer. None at all. That has an origin, because the three unions, ply in this part of the industry, have had - I don't want to reflect old wars, but there's been issues between them which you are aware of.

PN60

THE DEPUTY PRESIDENT: I've noticed.

PN61

MR McNALLY: There were five on the tugs and their question became who went, and who did what duties, and one member of the tugs went, and then there were further issues and four on the tugs were too many, and off we went again. The unions fought among themselves, the employers fought with the unions and the complement was reduced to three.

PN62

There's talk in the industry now about two. I don't think it's practical with the standard of tugs that are on the case, but there are tugs with two in the world. So there's that - these's those issues in the background which are better addressed by each of the three unions having their own right to vote upon whether or not they accept an enterprise agreement.

PN63

Now, someone at Svitzer or perhaps a number of people, I don't know, made the decision to ignore that history and to break with tradition, and to have a single enterprise agreement governing three unions. I hasten to say the unions, with some exceptions, get on pretty well now, but that's a work in progress which I know you're enrolled in.

PN64

The only reason being advanced by Svitzer that I can understand is that they say they will - a single enterprise agreement will enhance bargaining. Enhance bargaining that they've now ceased to participate in. Now, that's a fundamental issue in these proceedings, because what Svitzer want to do is to settle with the other two unions, reach agreement with the other two unions and to then have a single ballot involving a single enterprise agreement so that the conditions of engineers can be regulated by an agreement that they vote against that is voted in by two unions, two brother unions. What is that going to do to healing the conflict that exists in the industry among the three unions and the employer? For four year, engineers will know that that enterprise agreement was introduced that ignored 15 of their claims and was voted in by not engineers, but fellow crew members.

PN65

That's the importance of the scope order. That's what is going to be debated on 28 March, unless you make the order is sought by the Institute today. I mean, if they're successful in this application, then that's the end of any scope order, because what will happen is this matter will go out to ballot as soon as the company can get it out to ballot, because they've already arranged a conference to settle the - we got notice of it this morning, I think it was, to meet next Tuesday to settle the form of the award that goes out to ballot. So they can proceed during the Christmas period presumably to get the matter out to ballot. That's going to be the result.

PN66

THE DEPUTY PRESIDENT: You might have been planning to address this, but this would seem an opportune time to - - -

PN67

MR McNALLY: I beg your pardon?

PN68

THE DEPUTY PRESIDENT: This might seem an opportune moment to comment on option 1 that Svitzer advance which, of course, is not the revocation but rather the variation to add a restraint that would be counter to the existing restrain.

PN69

MR McNALLY: I didn't really understand what that was. I mean, they have all the rights that they have now. When the bargaining order comes into operation the Institute will have rights and the company will also have rights. They can retaliate. They can take action and retaliate; all those rights are there. The only thing they can't do is to put it out to ballot, effectively by the other two unions.

PN70

THE DEPUTY PRESIDENT: Let me just press this point with you, because I think - and it may even be that you take some time to take some instruction from Mr Byrne. So if instead of revoking the interim order, the element of the interim order, the element of the interim order that restrains Svitzer from putting any agreement to employees for a vote was maintained, but the interim order was augmented by a restraint on AIMPE from taking industrial action, then what effect practically would that have, because you've addressed me on the practical effect and you may wish to address me on the legal position, but the point you previously made was that by revoking the order, AIMPE would be prejudiced by not being able to proceed with its scope order or the proposition put by Mr Easton doesn't have that result. So what would the prejudice be of that proposition?

PN71

MR McNALLY: Well, I said I didn't understand it, because I didn't really believe that the company could suggest such an absurdity, because the effect of that would be as to lead your Honour into error, because - - -

PN72

THE DEPUTY PRESIDENT: Now you're addressing the legal and I appreciate that there is a legal point, but I'm really interested because you are really exhorting me to be practical to think about the industrial consequences of a decision that I make and that appeals to my innate sense of justice, although as I said - it wasn't last week, it was Tuesday, I'm rather obliged to apply the provisions of the Act.

PN73

MR McNALLY: Let me say two things; we argued the other day when you made the order that you've got to make the order if you say so.

PN74

THE DEPUTY PRESIDENT: I did make the order and I declined at that point to make an interim order under section 589 - - -

PN75

MR McNALLY: You declined that point on that occasion.

PN76

THE DEPUTY PRESIDENT: - - - that contradicted that, but things have rolled on since then and - - -

PN77

MR McNALLY: Nothing has changed since then.

PN78

THE DEPUTY PRESIDENT: While the basis of the submissions is a different section of the act and now there's another new circumstance which I wasn't aware of until you advised me of it, of a good faith bargaining order being applied for. So now there's yet - - -

PN79

MR McNALLY: Well, I'll come to the good faith bargaining order and who knew about it in a minute, but let me say this: the effect of such an order would be contrary to the act and would produce a further appeal to the Federal Court.

PN80

THE DEPUTY PRESIDENT: Which is both a practical and a legal question.

PN81

MR McNALLY: And perhaps a stay order of the stay order, I don't know. It is getting a little bit ridiculous. That's why the Institute took the step on yesterday, "Look, we've got to get around the table and we've got to talk about this. Hit them with a bargaining order application." I said, "Okay", and, "See if we can get it on the table and see if we can settle all of this." We made some practical suggestions about how we settle a position in Whyalla also.

PN82

But at the base of all this trouble is this idea of Svitzer's that they can change history by having a single enterprise agreement.

PN83

MR EASTON: We want to change a different history.

PN84

THE DEPUTY PRESIDENT: History does change, Mr McNally, or rather the future is different from the past and it's a question of - - -

PN85

MR McNALLY: Well, we've gone about this in a very legal way. We've applied for a scope order, we're filing our evidence, hopefully in time for Christmas, and we intend to argue that if it's appropriate to continue to do so, but what we really want to do is to sit down with the company and negotiate the outstanding 15 matters, which they have refused to do.

PN86

THE DEPUTY PRESIDENT: I urged that upon you on the last occasion.

PN87

MR McNALLY: And we'll do that - instead of Tuesday's meeting, we'll do that on Tuesday, on Wednesday and Thursday, and go to lunch on Friday and then come back again. That's the practical solution to all these problems. But Svitzer says, "No, we've got have a single enterprise agreement." Nothing else counts.

PN88

THE DEPUTY PRESIDENT: And you say, "No, you've got to have an individual enterprise agreement."

PN89

MR McNALLY: Yes. We don't want to start World War III. That's what it's all about. Now, so getting down the legality of this application, we had filed - the Institute had filed an application for a bargaining order at the time of - before Cambridge C made his order and we did that, as I think I told you on the last occasion, so as not to deceive anybody. Cambridge C was fully aware of the application. He read the application.

PN90

THE DEPUTY PRESIDENT: You're referring to the protected action ballot order now.

PN91

MR McNALLY: That's right.

PN92

THE DEPUTY PRESIDENT: Rather than your good faith bargaining order - yes, okay.

PN93

MR McNALLY: I said something else probably, but that's what I meant.

PN94

THE DEPUTY PRESIDENT: That's all right, I understand.

PN95

MR McNALLY: So I think, from recollection, it's PN177. He refers to the content of it. He's obviously read it.

PN96

THE DEPUTY PRESIDENT: Just to assure me that your memory is okay.

PN97

MR McNALLY: He had read it. Now the authorities are all clear and my friend has done us the service of creating more than I have, but they all say the same. Ross P said, in the authority I referred to, there's got to be some changed circumstance or some fact that's made aware of that the Commission wasn't aware of when making the order.

PN98

THE DEPUTY PRESIDENT: Just on that point though, if you wouldn't mind pausing, where do I find in his decision evidence that he had read the application as opposed to was aware that an application had been made?

PN99

MR McNALLY: Paragraph 177.

PN100

THE DEPUTY PRESIDENT: Sorry - there we are, you see you're just proving that you're more on the ball than I am, because, of course, I don't have the transcript so - - -

PN101

MR McNALLY: Transcript PN, I beg your pardon. I did make a mistake.

PN102

THE DEPUTY PRESIDENT: Is it possible to give me a copy of that? Because that's not being tendered before the transcript of Cambridge C's.

PN103

MR McNALLY: I'll read it - I'll ask Mr Byrne to read it.

PN104

MR EASTON: It's in the appeal book that was filed in the last couple of days. That might help.

PN105

THE DEPUTY PRESIDENT: Thank you, Mr Easton. Let's have a look for it.

PN106

MR McNALLY: Mr Byrne can probably read it.

PN107

MR EASTON: Page 20 of the appeal book.

PN108

THE DEPUTY PRESIDENT: How handy is that? So was it before him because it was tendered by you?

PN109

MR McNALLY: No, I said we sent him a copy.

PN110

THE DEPUTY PRESIDENT: Right, okay.

PN111

MR McNALLY: And for the reason that we didn't want to deceive anybody. And we had intended to proceed along those lines anyway. So what's changed? I mean, there's no conflict that it was filed. There's no conflict at that stage that anyone wasn't bargaining in good faith, other than the allegation that we said we wanted to meet them. What's changed is that your Honour has made an order that your Honour had to make and had no discretion to refuse. That's not sufficient.

PN112

It might be different considerations at the next matter, but so far as this matter is concerned that should end the matter. I mean, just from a broad perspective, it's not really in the interests of confidence in the Fair Work Commission if decisions are changed and perhaps, dare I say, a decision by one Commissioner - by one member of the Commission to be change by another member of the Commission for no reason at all, and I'm sure everyone in this room that has any knowledge of the Fair Work Act would agree with that. But that's why it is necessary to restrict it to where circumstances have changed.

PN113

I mean, if the Institute pursuant to the power they have under the order and then goes out on a strike that will last too long and perhaps the Commission might consider that the position is different, that the Institute has acted in a manner inconsistent with the spirit of the bargaining order. But they're for events to come. What the Institute wants to do is settle. Settle all the issues and put into effect three enterprise agreements consistent with the history of the industry.

PN114

THE DEPUTY PRESIDENT: Let me ask you this, Mr McNally, you paint a picture of a requirement for a single enterprise agreement in order that in circumstances where agreement is not reached on the content of an agreement and that content is contained in a combined agreement and is voted on by the employees who are within the scope of that agreement that there will be an oppressive action of the majority outvoting the minority and you also paint a picture of ongoing disharmony in the workplace resulting. Does that same situation pertain if there an agreement on the content that pertains to engineers, but that content is contained within an agreement that covers the three occupations and isn't that the objective of bargaining for all parties to not leave the bargaining table, ideally and within reason, until all parties have reached agreement, in which case the prospect of oppression of minorities would not arise?

PN115

MR McNALLY: What does it achieve? I mean, what happens in these circumstances in this industry is that collective negotiations take place, individual negotiations take place and enterprise agreements all go out together. That's what happens.

PN116

THE DEPUTY PRESIDENT: I don't think that - - -

PN117

MR McNALLY: But it gets rid of this - it gets rid of this. In those negotiations that involve the three unions, two unions say, "We're settled except for technical agreement as to how we word the agreement." The others are outstanding and the Institute is left swinging with 15 outstanding matters which the company won't negotiate. That's why we're being practical. We say, "Get together with us", I mean, there's room for movement there.

PN118

I can see it - I spoke to some other engineers. There's difference of opinion; there's room for movement. Certainly not on the single enterprise agreement issue. I believe the matter will resolve with the Institute, but it's going to take more than a meeting they turn up late for and leave early. It's going to take some hard negotiation.

PN119

Mr Byrne is going to participate. I'll offer to make myself available if they let me in and try and resolve it. That's the way the matter should go. It shouldn't be that we pause, we stop, we have a vote, we lose, we end the proceedings. Industrially unwise, industrially disastrous and against the principle that there hasn't been - unless there's a change of circumstances, your Honour shouldn't overrule the interim order that has been made.

PN120

THE DEPUTY PRESIDENT: Of course, given the submissions that Mr Easton has made, and I'm not putting words into Svitzer's mouth, but the same result that they seek to achieve with those submissions could be achieved by you agreeing to not take or not recommend - because obviously you've taken steps to commence your ballot, so that will occur and the vote will be held, but assuming it's in the affirmative that you will not take steps to take advantage of that authorisation until the scope order is heard. That would have the same effect that is sought by Svitzer with its option 1.

PN121

MR McNALLY: Well, nothing can happen until the second or third week in January anyway.

PN122

THE DEPUTY PRESIDENT: Well, why wouldn't you make that commitment?

PN123

MR McNALLY: Because the order doesn't take effect until 9 January or something, and then we've got serve notice.

PN124

THE DEPUTY PRESIDENT: Yes, but - - -

PN125

MR McNALLY: We're not going to rush in and do that.

PN126

THE DEPUTY PRESIDENT: Yes, but that's not an answer to my question. Why wouldn't you make that commitment, given the submissions you made to me on Tuesday about the peace‑loving nature of AIMPE and the lack of - - -

PN127

MR McNALLY: We won't give that commitment - - -

PN128

THE DEPUTY PRESIDENT: - - - history of industrial action.

PN129

MR McNALLY: - - - for this reason; if this bargaining notice doesn't produce the result that they sit down and talk to us, we will be applying for a bargaining order and use whatever stick we have to enforce it.

PN130

THE DEPUTY PRESIDENT: All right. Well, what if Svitzer were to agree to a program of negotiations?

PN131

MR McNALLY: I'd be - - -

PN132

THE DEPUTY PRESIDENT: And make a commitment in front of me that they would be negotiating in good faith.

PN133

MR McNALLY: We would then consider our position, but I would have thought that if they agreed to enter into negotiations and the Institute immediately enforced the bargaining order, the Commission wouldn't be very pleased.

PN134

THE DEPUTY PRESIDENT: Sorry, I'm not understanding that point. Say it again or rephrase it for me.

PN135

MR McNALLY: We have to get to the bargaining table.

PN136

THE DEPUTY PRESIDENT: Yes, but we can get there by consent or by direction.

PN137

MR McNALLY: Or by stick.

PN138

THE DEPUTY PRESIDENT: Or by stick. So if the former, consent was available, then that would be something to consider, wouldn't it?

PN139

MR McNALLY: Yes, that's what Cambridge C has in mind. In many ways, he's a very practical man. He feels that this matter should settle.

PN140

THE DEPUTY PRESIDENT: What, in contradistinction to the present member of the Bench?

PN141

MR EASTON: The (indistinct) part he's referring to.

PN142

THE DEPUTY PRESIDENT: Mr McNally and I have known each other long enough for a bit of repartee across the Bench to the Bar Table.

PN143

MR McNALLY: Even longer than that.

PN144

THE DEPUTY PRESIDENT: He is a practical man, you're quite right. But I will ask Svitzer in a moment to seriously consider that.

PN145

MR McNALLY: Thank you, your Honour.

PN146

THE DEPUTY PRESIDENT: Thank you, Mr McNally. So opportunity for reply, but also opportunity if you would prefer to take a short adjournment and have a talk about what's just transpired, because we are seeking to create a practical circumstance and it seems to be being more and more confounded by ever-increasing legal applications. If Svitzer were to agree to a program of bargaining and if you were able to extract a complimentary commitment from AIMPE not to take industrial action until after the scope order, perhaps that would be a way of practically resolving the matter.

PN147

MR EASTON: Thank you, your Honour. If the end result is that both parties are restrained as to their rights available under the Act, and there was a timetable for further discussion, we would participate in that and deal with whatever matters are outstanding on the terms and conditions there, and that's a course open, of course, to everybody.

PN148

To sharpen the perspective though on the current consideration of the interim order, there's a difficulty with the institute's submissions when you put them together, insofar as the institute says that there's no room for movement on a single agreement. They would like to have more discussions about terms and conditions and we can see from exhibit M1 the kinds of things they'd want to be discussed there, apart from whether there's one agreement or three, and obviously Svitzer doesn't agree to separate agreements, but that's the very basis and reason for the Institute pursuing their scope application which is before the Commission and obviously been listed in short time.

PN149

The difficulty and the problem with Institute's position is that they also, apart from having that scope application being dealt with by the Commission, want to use whatever sticks they've got in the meantime to presumably persuade with that stick Svitzer to have separate agreements. It's got to be the effect of those positions taken by Institute when you put them all together that they want to arbitrate a matter before the Commission, but in the meantime have the benefit of the Act to try and hit Svitzer with a stick for the same matter.

PN150

Now, that in an interlocutory matter - an interlocutory application should not be permitted at all. That's a fundamental principle of exercising the discretion on an interim relief, is that that kind of consequence of an interim order should not be permitted at all, when the purpose of the interim order made by Cambridge C is to preserve the utility of the proceedings being the scope order application, it cannot be in addition to that, having the result that permits the Institute to use a different part of the Act to apply as a stick.

PN151

So as I say, to be sharpening the focus on the issue at hand on the interim order, it very much speaks against simply leaving the order in place as it is.

PN152

THE DEPUTY PRESIDENT: Yes.

PN153

MR EASTON: Mr McNally made an observation about the Commission not changing decisions and having either the same member of the Commission or a different member of the Commission simply revisit someone else's decision.

PN154

The important consideration here though is that it's an interim decision and I didn't bring copies, but only this week on Wednesday, Perram J declined further interlocutory relief in the Dallas Buyers Club litigation that made the news back in May when injunction was granted, and in that matter and the reference to is - it's obviously Wednesday morning, 16 December, but it's Dallas Buyers Club LLC v iiNet Limited (No 5) [2015] FCA 1437. His Honour at paragraphs 11 and 12, refer to at paragraph 11 the well-established principle that there ought be finality of litigation and the deciding of the matter then raises a res judicata matter, but then in paragraph 12 makes this observation:

PN155

These proceedings, however, are not ordinary trial proceedings. An action for preliminary discovery is not about the final rights of the parties and upon the disposition of such a proceeding the legal position of no party is altered. Consequently, the consistent view in this court is that preliminary discovery orders are interlocutory in nature -

PN156

and then refers to a decision,

PN157

They remain, therefore, permanently exposed to the risk of alteration or even revocation.

PN158

Then his Honour refers to Rule 39.05 of the Federal Court Rules as to variations of judgments and then observes in that case that he would not be prepared to visit the earlier interlocutory order unless he was satisfied there was a change of circumstances and he ultimately wasn't, but those words are directly apt here that the order of Cambridge C, again assuming validity, is permanently exposed to the risk of alteration or revocation, and that's the situation that we find ourselves in here.

PN159

Much of what Mr McNally said really is a head start on the arguments that we will all have next year before Cambridge C and one matter that he raises as to there being no other instrument that covers three unions, one of the considerations that featured prominently on 3 December was the consequences of the Harbour City Ferries decision by Cambridge C from 20 November 2015 where in very similar circumstances the Commissioner approved an agreement, a single agreement covering three unions despite the longstanding objection by one of the unions to that process.

PN160

So that fundamentally is a matter for next month and not for now, but if there is thought to be a utility in having further discussions ahead of the scope application, then we would happily have those discussions and before I forget, because I've been told twice now and haven't said it out loud, those discussions would need to be open to all parties to the proposed agreement. That's the very point on the NERR and the - and when one sees from exhibit M1 the kinds of matters that the institute wish to progress, they're of a general nature and as I understand it, the engineer-specific matter that in earlier occasions the Institute had protested were being left behind, those engineer-specific matters have been dealt with.

PN161

THE DEPUTY PRESIDENT: Because it would seem to me that notwithstanding what Mr McNally has said about the force of the Institute's view about having single agreement, the content of the agreement may arise from a robust negotiation in each of these 15 matters could equally be placed ultimately in a combined agreement or single agreement, depending on the outcome of the scope order.

PN162

I mean, it's not unlike the scenario where bargaining proceeds and agreement is reached on 99 per cent of matters, but one matter which is a "die in a ditch matter" is outstanding in the party's consent to the Commission either determining or making a recommendation which they agree to accept in relation to that matter. It doesn't stop all the other matters or it ought not stop all the other matters being considered.

PN163

It seems that the underlying reason that the Institution is in the position has caused us to be here and has initiated, you know, much of what has transpired, is because of their belief that they will be a minority oppressed in the sense of shareholders - minority shareholder being impressed, and that would only be the case if they weren't able to resolve to their satisfaction the content of an agreement. So it's something of a chicken and egg, it seems to me.

PN164

MR EASTON: I mean, before we got to 3 December, there have been some proceedings before Cambridge C and there had been recommendations by him that there be separate and collective meetings and at least the separate meetings to discuss engineer‑specific matters and that all occurred and, as I understand it, some engineer-specific matters are included in the proposed agreement and through the - in fact, all of the engineer‑specific matter, I'm told - the position though that the Institute has taken over the time is that whilst it's participated in the meetings, it has consistently said, "We're not giving any kind of consent unless there's separate agreements."

PN165

THE DEPUTY PRESIDENT: So that's - many negotiations, as I said, during the PABO application and people say it's not an agreement until it's completely agreed and we have one matter that we regard as a die-in-a-ditch matter.

PN166

Yes, so in short, if you've concluded your submissions in reply, I would like to take a short adjournment. In that short adjournment, I would like the parties to discuss this proposition, that a program of meetings be agreed to by Svitzer to have with the bargaining parties all invited - but of course if the other two don't choose to come, that's a matter for them - but that if that program of meetings was satisfactory to AIMPE that AIMPE agree to give a commitment that notwithstanding the outcome of a ballot for a protected action that they would not choose to take advantage of that until after the scope order has been determined.

PN167

So talk about that amongst yourselves. If you reach agreement about that then other things might follow. If you don't, then I will have to somehow find a way through this complex legal maze that you have set for me.

PN168

MR McNALLY: Could I just say that in the section 229 notice we asked for an undertaking of Svitzer that they meet the AIMPE representatives within 10 working days - it took Christmas into consideration there - from the date of this letter and resume negotiations for an enterprise agreement to replace the Svitzer Australia Pty Ltd and AIMPE Towage Enterprise Agreement 2012. It would be appropriate if we get an answer to that letter, an answer to that request.

PN169

THE DEPUTY PRESIDENT: Thank you. What I've put to Svitzer, when answered, would be that answer.

PN170

MR McNALLY: Sorry?

PN171

THE DEPUTY PRESIDENT: The proposition I've put to Svitzer if answered in the affirmative would be an answer to your paragraph in the affirmative.

PN172

MR McNALLY: Yes.

PN173

THE DEPUTY PRESIDENT: So let me take a short adjournment and allow you two to do good work. The Commission is adjourned.

SHORT ADJOURNMENT [11.24 AM]

RESUMED [12.25 PM]

PN174

THE DEPUTY PRESIDENT: Now have the parties got any good news for me arising out of their discussion whilst I was thinking about what decision I would make?

PN175

MR McNALLY: As I understand the situation, your Honour, the company has refused to meet with us unless we agree to vacate the interim order and agree not to exercise our rights under - - -

PN176

THE DEPUTY PRESIDENT: That was my proposition.

PN177

MR McNALLY: Yes. So they've refused to meet.

PN178

THE DEPUTY PRESIDENT: Well, no, as I understand it they have considered my proposition and accepted it and you've rejected it. Because my proposition is that you meet with a proper timetable that gives you the confidence that it's serious, and that they tell me in the Commission on the record that they're serious so there's no doubt that they're bargaining in good faith, and then you give them a commitment. Not that you agree to any kind of process by which the interim order is revoked, but you agree that you won't exercise the rights that arise from any affirmative protected action ballot that I understand will be declared some time after the 6th, or something like that, of January.

PN179

MR McNALLY: It's probably more appropriate that these matters be dealt with in the good faith bargaining application which I assume will be listed shortly.

PN180

THE DEPUTY PRESIDENT: At this time of the year I wouldn't make any assumption like that, but that's a matter for you Mr McNally. But it seems to me that the practical circumstance that you need to achieve is you need to achieve an opportunity to agitate forcefully the concerns of the engineers to have them arrive at content for an agreement which is acceptable to you, that you may or may not be able to reach agreement on the form of that agreement, and you've got that matter being arbitrated on the 28th and 29th January.

PN181

So all you would lose in the period of time between now and 29 January was the opportunity to take the industrial action that you have now got the right to take through the fact that I've granted the order, and in return you would be getting what you've asked for, which is an opportunity to meet with the company and agitate your claims which have to form one agreement or another. So whatever the content is it has got to either be in a single agreement or a combined agreement. You would not be wasting your time in doing that.

PN182

MR McNALLY: We would hope to have that whole matter settled before the 28th and 29th January, and we hope to do that through the good faith bargaining application.

PN183

THE DEPUTY PRESIDENT: All right, and the force of industrial action that will not only disrupt in the normal way in which industrial action disrupts but will potentially put at risk the jobs of workers at Whyalla.

PN184

MR McNALLY: We haven't - well, let me deal with that issue straight away.

PN185

THE DEPUTY PRESIDENT: All right.

PN186

MR McNALLY: We haven't said that we are going on strike.

PN187

THE DEPUTY PRESIDENT: No. In which case it should be easy for you to give a commitment to delay that decision.

PN188

MR McNALLY: The position at Whyalla is this, and I'll be cross‑examining Mr Umansky - I wonder if he could wait outside for the time being? That's if the matter goes on. The position at Whyalla is settled in principle. They can go to ballot once the form of the agreement is recorded in writing and we're waiting to get that from the company, right? Once we get that then the matter can go to ballot.

PN189

THE DEPUTY PRESIDENT: But how can it go to - - -

PN190

MR McNALLY: By a variation of the existing agreement.

PN191

THE DEPUTY PRESIDENT: You would have to vary - - -

PN192

MR McNALLY: Or by a new enterprise agreement that has a life of one month.

PN193

THE DEPUTY PRESIDENT: Yes, all right and look, to be fair I haven't heard all there must be to hear on that matter.

PN194

MR McNALLY: Yes.

PN195

THE DEPUTY PRESIDENT: So I only said that really out of frustration quite frankly.

PN196

MR McNALLY: Well, what I want - what I'm saying is the Whyalla issue is not an issue.

PN197

THE DEPUTY PRESIDENT: I think it's probably going to be an issue for the people who lose their jobs if - - -

PN198

MR McNALLY: They won't lose their jobs if the company puts it to ballot. Unless the company is pulling our leg and they're going to sack them anyway. But we have agreed to what the company wants. They can put it to ballot now.

PN199

THE DEPUTY PRESIDENT: As a variation to the three agreements, which would need to be a national ballot which is the same - - -

PN200

MR McNALLY: No. No, they can - to get around that they can put it to the members now at Whyalla for a new enterprise agreement to take effect from 1 January.

PN201

THE DEPUTY PRESIDENT: So there's a carve out enterprise agreement just in Whyalla and - - -

PN202

MR McNALLY: Confined to Whyalla.

PN203

THE DEPUTY PRESIDENT: - - - then Whyalla's out of the national negotiations.

PN204

MR McNALLY: They don't want to do that because they want to argue this one agreement or three agreement. It's the company that's causing the trouble at Whyalla. If the Commission pleases.

PN205

THE DEPUTY PRESIDENT: All right.

PN206

MR McNALLY: Sorry, I've no objection in him coming back.

PN207

THE DEPUTY PRESIDENT: All right, so I think that puts me in the position of having to make a decision.

PN208

MR EASTON: It does, and for our part we can indicate that if the order is varied to the effect that we discussed earlier, at your Honour's suggestion we would make ourselves available for consultation in the period between now and the end of January. But obviously - - -

PN209

THE DEPUTY PRESIDENT: You mean make yourselves available for negotiating with AIMPE.

PN210

MR EASTON: Yes.

PN211

THE DEPUTY PRESIDENT: Yes.

PN212

MR EASTON: Yes.

PN213

THE DEPUTY PRESIDENT: Good.

PN214

MR EASTON: And there's a meeting scheduled for Tuesday which is a drafting meeting, and to the extent that it affects your Honour's deliberations that meeting could become the first meeting of that kind, and it would also then deal with the Institute's specific request in exhibit M1 to meet within 10 days as well. So those kinds of matters in terms of the company coming to the Commission with clean hands asking for interim relief, they're matters that your Honour can take into account as well. But otherwise your Honour is at a point, and the parties are at a point where something has to be done about the interim order, and obviously there's no agreement as to what can be done about that for all the reasons that I covered before.

PN215

THE DEPUTY PRESIDENT: Then you could - - -

PN216

MR EASTON: The advantage of the variation over the revocation is one that ought be at the front of the considerations.

PN217

THE DEPUTY PRESIDENT: No, I understand your - - -

PN218

MR McNALLY: Just to deal with - - -

PN219

THE DEPUTY PRESIDENT: - - - submissions Mr Easton.

PN220

MR McNALLY: - - - this North Whyalla matter in completeness.

PN221

THE DEPUTY PRESIDENT: Yes Mr McNally?

PN222

MR McNALLY: We take the view that the interim order of Commissioner Cambridge doesn't prohibit the ballot taking place peculiar to or restricted to Whyalla. So there's no impediment to that going forward.

PN223

THE DEPUTY PRESIDENT: Yes. All right, well obviously when I adjourned earlier I was hopeful that the parties might reach an agreement which would obviate the need for me to make what I regard as a very difficult decision. But it has not and so I have brought it upon myself to be required to make that decision, since this matter has been listed today at my initiative, and it is to consider whether pursuant to section 603 of the Fair Work Act the decision and subsequent order of Commissioner Cambridge dated 3 December 2015 and contained in PR574626 to the following effect ought to be varied or revoked, and the order is as follows:

PN224

Svitzer Australia Pty Ltd is hereby Ordered not to conduct a ballot of employees to approve of any enterprise agreement to replace the SVITZER Australia Pty Limited and AIMPE Towage Enterprise Agreement 2013 (the 2013 AIMPE Agreement) unless and until the final determination of the application for a scope order in this matter (B2015/1549) is made or the application is otherwise finalised.

PN225

And as the parties are aware I listed the matter today to hear the parties on this question, because in the course of hearing an application for a protected action ballot order on I think 15 December, that is Tuesday of this week, in the matter B2015/1570 I was troubled by the juxtaposition of the protected action ballot order that I formed the view I must and did as a result grant, and the existence of the interim order that I have just referred to.

PN226

I have heard the parties today in relation to the question and I have heard and carefully considered Svitzer's submissions that the preferable course would be to vary rather than revoke, and to do so to complement the restraint that is placed currently on the company from putting an agreement to a vote of employees with a restraint on employees exercising their right to take protected action in an attempt to advance their claims.

PN227

I have also heard Svitzer's submissions that in the alternative if I was not persuaded that that was an appropriate course, that they would support a revocation of the order but that there are practical concerns that they have about their ability to take advantage, if you like, of that revocation in the circumstances of the time available to exercise their rights under the Act to put an agreement to employees to vote.

PN228

I have also heard the AIMPE's submissions that I should do neither of those two things and that I should desist from making any change to Commissioner Cambridge's order or to revoking it, on the basis that it was and remains an appropriate supplementary procedural instrument to sit alongside his decision to list a scope application for hearing on the 28th and 29th January in support of the scope that AIMPE seeks to achieve for this agreement.

PN229

I have decided to revoke Commissioner Cambridge's order. I have decided therefore against the preferred option of the company and against the only option that AIMPE contend for, and I have done so with a close examination of the principles that apply to the exercise of the Commission's discretion under section 603, those principles being most recently upheld by a Full Bench in the matter of Health Services Union - Victoria No. 1 Branch, Diana Asmar and Nick Katsis [2015] FWCFB 5621 by a Full Bench presided over by Hatcher VP where they affirmed the principles enunciated by Ross J which have been brought to my attention by both Svitzer and AIMPE, and those principles are these.

PN230

The first that I would refer to is that the exercise of discretion in section 603 is intended to be broader than a statutory form of the slip rule, and that appears at paragraph 37 of Ross J's decision and that is extended, I would contend, by the Full Bench decision that I have referred to where at paragraph 25 the Bench says:

PN231

Section 603 confers a broad discretionary power which is exercisable in relation to a range of different types of decisions and in a range of circumstances...

PN232

The second principle that I have had reference to is also enunciated by Ross J and that is found in paragraph 38 of his decision and it is that:

PN233

The power to vary or revoke a decision has generally only been exercised where there has been a change in circumstances such as to warrant the variation or revocation of the original decision...

PN234

And the third principle continues in that paragraph where he goes on to say:

PN235

...or, where the initial decision was based on incomplete or false information, fraudulently procured or otherwise.

PN236

And then the fourth principle that I would pay attention to is contained in paragraph 39 of his decision where he says:

PN237

As a general proposition applications to vary or revoke a decision should not be used to re-litigate the original case.

PN238

He goes on to say:

PN239

After a case has been decided against a party, that party should not be permitted to raise a new argument which, deliberately or by inadvertence, it failed to put during the original hearing when it had the opportunity to do so."

PN240

And lastly I would make reference to also his comments in relation to other courses of action available to parties where he says in paragraph 41:

PN241

As a general proposition that where a particular procedure is designated to achieve something other procedures are impliedly excluded, as reflected in the maxim expressum facit cessare tacitum.

PN242

That's quite a mouthful. So those are the principles that I have applied in relation to section 603, and I want to comment on why it is that I have adopted the course of action that I have rather than the course of action urged upon me by the company or AIMPE. The course of action urged upon me by the company has as its underlying motive a concept that I am sympathetic to, and which is also underpinning my thinking in relation to the decision that I have made, and that is that to vary the order in the way sought would, if you like, be to level up the playing field.

PN243

This is in recognition of the fact that the existence of the PABO and its possible or probable resulting industrial action in circumstances where the company is restrained from exercising its rights under the Act creates the circumstances where one party has the freedom to bargain with all of the force of the Fair Work Act and the other party has a stranglehold placed upon them, and the answer to that for reasons that Mr Easton articulated was to, rather than revoke the order, to vary it to if you like level up the ledger.

PN244

Indeed as a consent outcome it was one that found favour with me to the extent that I recommended it to the parties, that there be further bargaining and that in consideration of that there be a commitment not to exercise the rights to take industrial action whilst that bargaining is occurring. That did not find favour with AIMPE and so that put me in a position of having to consider how I would address what I regard as a troubling juxtaposition of the PABO and the interim order.

PN245

The reason why I have not opted for the proposition urged upon me by the company is that I think that compounds the problem of the intervention by the Commission in the course of collective bargaining and is at odds with the overall thrust of the Fair Work Act for parties to freely collectively bargain, other than to seek the intervention of the Commission in very specific ways that are set out very specifically in the Act.

PN246

So without going to sections, for example majority support determinations, good faith bargaining orders, scope orders indeed of the kind that are sought by AIMPE, even workplace determinations in certain rather extreme circumstances. But the Act has not, or the Parliament has not seen fit to give the Act and to give the Commissioner express power in the Act to meddle in the course of bargaining in other ways and thereby change the course of bargaining or come to the rescue, if you like, of a party who feels disadvantaged in bargaining.

PN247

Without wearing down the patience too much of the parties, I would turn to the objects of the Act and remind the parties that one of the key objects of the Act:

PN248

...is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by -

PN249

amongst other things in subsection (f):

PN250

Achieving productivity and fairness through an emphasis on enterprise-level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action.

PN251

And that in the provision or the Part of the Act, Part 2-4 of the Act that deals with enterprise agreements itself, there are specific objects at section 171 and that is:

PN252

To provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits...

PN253

And the whole framework of the Act and the force of the Act is to provide for freedom within the reasonable restraints of the Act for parties to conduct themselves, and the freedom to take industrial action in certain circumstances is there and has been granted to AIMPE, and yet the freedom to bargain including with employees by taking an agreement to employees, because that is what it is. The construct of the Act is that agreements are between employees and employers, and part of the process of an agreement being put to employees is part of the bargaining process.

PN254

Employees may say no, and that is part of the thrust of the Act and part of the bargaining process, and I think to vary the interim order in the way urged upon me, whilst I completely understand the practical reasons for the request, would be to take us down that slippery slope of the Commission being asked to intervene and exercising its powers under section 589 by parties who are not satisfied with the way bargaining is proceeding, and that is not really what the Act intended in my view.

PN255

On the other hand to do nothing, as I am urged by AIMPE, and leave the interim order in place perpetuates this seesaw where one party is completely free to act and the other is restrained, and I do not think that that is consistent with the objects of the Act either. Now why do I think that I have the ability to exercise my discretion under section 603, and I readily place on the record that I am assuming of the validity of the original interim order in revoking it?

PN256

Why I think I am justified in exercising that discretion is that there is a change in circumstances to that which was presented to Commissioner Cambridge. I concur with Mr Easton's submissions that it is not as simple as saying Commissioner Cambridge knew there was an application on foot for a protected action ballot order. He would not have known and could not have known that the protected action ballot order would be granted.

PN257

He could not have known the force with which AIMPE would be advocating and agitating its claims, and that they wish to continue to vigorously bargain. Indeed if I had not been persuaded in the protected action ballot order matter that they wanted to continue to bargain I would not have had the power or I would not have at least been required to grant it, and I may not have had the power to grant it. Because as I understand the case law you not only have to have been bargaining genuinely to seek an agreement, you have to be bargaining to genuinely seek an agreement at the time of the application.

PN258

The force of Mr Easton's submissions in relation to the underlying assumptions that Commissioner Cambridge was acting on when he made the interim order was that AIMPE needed the interim order in order to be able to conduct the scope case as a prerequisite to continuing to effectively agitate for the outcome they sought in enterprise bargaining; and I do think that that is a changed circumstance and one that is sufficient to underpin a revocation of the order.

PN259

In no way do I suggest that there was any incomplete, false or fraudulent information and I also do not believe that I have allowed a re-litigation of the original case. In relation to the point about appeals, I take Mr Easton's submissions that - and this is a fine legal point, perhaps one that is better articulated by the lawyers at the Bar table than the non-legally trained member of the Fair Work Commission who sits before you, but I do understand the point that in that I am relying upon the validity of the interim order in making a decision to revoke it, I am not pre‑judging the outcome of any appeal that might be run. So I do not believe I fall foul of that principle.

PN260

So I formally revoke the order of Commissioner Cambridge contained in PR574628 as of today, 18 December 2015.

PN261

That then leaves me with a question for the parties, in particular the party who is the applicant or the appellant in the matter of where do you say that takes us in relation to the application for a stay of that order?

PN262

MR McNALLY: Your Honour, on the question of operative date.

PN263

THE DEPUTY PRESIDENT: Mr McNally?

PN264

MR McNALLY: We have no right to participate in authorised stoppages until 9 January - sorry - - -

PN265

SPEAKER: The sixth ballot gets declared so it's notice provisions apply after that.

PN266

MR McNALLY: The notice provision is of three days. Svitzer can make an application to extend that. We assume they won't. Could your Honour make the operative date of your order 9 January? So your Honour indicated that the parties should have equal right to participate in their rights, and that won't happen till 9 January.

PN267

THE DEPUTY PRESIDENT: Good Lord. Well, it's a bit of an unusual situation to make a submission like that after the decision has been given, Mr McNally. I will obviously hear - I've never been asked to make a decision after I've made a decision. I think I would be amending - - -

PN268

MR McNALLY: Well, your Honour hasn't dealt with - - -

PN269

THE DEPUTY PRESIDENT: - - - my own decision.

PN270

MR McNALLY: Your Honour hasn't dealt with operative dates yet.

PN271

THE DEPUTY PRESIDENT: I did. I just said as from today, from 18 December.

PN272

MR McNALLY: Did you? Well, okay.

PN273

THE DEPUTY PRESIDENT: Any submissions from Svitzer on that point?

PN274

MR EASTON: Yes. What my friend is asking you to do now after you've given a decision that you're revoking the order is to in effect vary the order, the interim order, by in effect saying Svitzer cannot put it to a vote any time before the 9th, and so that's a variation of the earlier - - -

PN275

THE DEPUTY PRESIDENT: Yes, it's a whole different - - -

PN276

MR McNALLY: And for all for all of the reasons that your Honour has just explored in terms of the Commission interfering with bargaining processes, that would exactly undo it in that situation.

PN277

THE DEPUTY PRESIDENT: Mr McNally, I'm afraid that had you wanted me to consider that you should have put an alternative in your submissions. But I must say I - - -

PN278

MR McNALLY: Well, no doubt your Honour took into consideration the fact that we can't exercise our rights until the 9th. So we'll leave that.

PN279

THE DEPUTY PRESIDENT: Yes.

PN280

MR McNALLY: Some of what your Honour said we couldn't hear. So could we get a copy of the transcript so we - - -

PN281

THE DEPUTY PRESIDENT: Absolutely.

PN282

MR McNALLY: Thank you.

PN283

THE DEPUTY PRESIDENT: We've got it on urgent order so it will come to you as quickly as it possibly can.

PN284

MR McNALLY: Thank you very much. I'm indebted.

PN285

THE DEPUTY PRESIDENT: All right. Thank you.

PN286

All right, Mr Easton, the question of the stay.

PN287

MR EASTON: The question of the stay. We as the appellant do not press the application for the stay and in terms of or to the extent that your Honour might be otherwise charged with programming that appeal application, at this stage we would simply ask that it be stood over generally so that Svitzer can consider the utility of the whole of the appeal at this point in time.

PN288

THE DEPUTY PRESIDENT: All right. No, I don't necessarily think Mr McNally would have any submissions about that.

PN289

MR McNALLY: No, no, I don't have a problem with that.

PN290

THE DEPUTY PRESIDENT: So I agree with those submissions. It's in Hatcher VP's discretion so I will report back to him the outcome of today and then if you want to make any submissions about the conduct of the appeal you need to communicate with him.

PN291

MR EASTON: Yes. Thank you, your Honour.

PN292

THE DEPUTY PRESIDENT: The Commission is adjourned.

ADJOURNED INDEFINITELY [12.58 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #M1 SECTION 229(4) NOTICE.......................................................... PN58