AG2017/487, Transcript of Proceedings [2017] FWCTrans 339 (10 August 2017)

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PN1

THE COMMISSIONER: Good morning, everybody. Please be seated. I shall take appearances, thank you.

PN2

MS S KELLY: Good morning. My name is Kelly, initial S, of counsel. I seek permission under section 596 of the Act to appear for the applicants in this matter. We submit that it would be - - -

PN3

THE COMMISSIONER: Hang on, stop - thank you. Let me hear from Mr Harrington.

PN4

MR N HARRINGTON: Good morning, Commissioner - my name is Harrington, initial N. I appear for the respondent and I also seek permission to appear. I don't oppose my learned friend's application. I would hope - perhaps she doesn't oppose mine. There is a level of complexity about this matter and I raise and rely upon the question of efficiency - - -

PN5

THE COMMISSIONER: Stop.

PN6

MR HARRINGTON: - - - in the context of that complexity.

PN7

THE COMMISSIONER: Yes, thank you. Ms Kelly, do you - I take a pragmatic approach to this, whilst being very respectful of the Fair Work Act. Do you have any objection if Mr Harrington was granted permission to appear?

PN8

MS KELLY: No objection.

PN9

THE COMMISSIONER: Permission to appear is granted to both of you. Thank you. Now, may I asked - I've got two questions.

PN10

MS KELLY: Yes.

PN11

THE COMMISSIONER: The first question is why are we all here today, given that the agreement expires in just over two months, and the second question - if I need to go to it - is it wasn't clear to me, Ms Kelly, as to the precise variation of the agreement that is sought to remedy the alleged uncertainties and ambiguity.

PN12

MS KELLY: Yes, thank you.

PN13

THE COMMISSIONER: That would be helpful because that bit's the missing piece of the puzzle for the Commission at the moment.

PN14

MS KELLY: Certainly - I'll address both of those and I will interpose between the first and second questions - - -

PN15

THE COMMISSIONER: Yes.

PN16

MS KELLY: - - - an issue that has arisen that we seek your assistance with.

PN17

THE COMMISSIONER: All right.

PN18

MS KELLY: It may obviate the immediate need to deal with the second question. The reason we are here is that we say that my client has gained a valuable benefit in the 2009 round of bargaining and they maintained that valuable benefit in the 2013 round of bargaining. They have, following a purchase of the former employer GEO Care by Correct Care, lost the value of that benefit and they are coming into a bargaining round in circumstances where there is now substantial dispute between the parties about what the benefit was.

PN19

Now, if we are correct there is an ambiguity or uncertainty which has led to the present circumstances and it should be corrected to reflect the objective mutual intention of the parties from both 2009 and 2013, which will put them back in the position that they were in before the new employer changed its practice and restore bargaining to the level playing field that it should have been at before mid-2015. That's why we're here. If the issue isn't addressed, my client goes into bargaining having potentially to bargain back an entitlement that it has already got the benefit of.

PN20

THE COMMISSIONER: I understand that, Ms Kelly, but stating the obvious and what I'm about to put is a hypothetical set of circumstances but in the union seeking to restore the level playing field - - -

PN21

MS KELLY: Yes.

PN22

THE COMMISSIONER: - - - ahead of the new round of bargaining - whether that is restored or not in part or at all or completely is up to a third party. That in essence is giving control of that bit to the Commission in circumstances where in bargaining the union has control - complete control.

PN23

MS KELLY: It doesn't have complete control in the sense that it doesn't control the employer and the employer says - the new employer says, "Well, we have come in very late in the piece and we have looked at this agreement and it doesn't mean what you say it's meant for six years." It takes away a very substantial benefit - a 50 per cent penalty on weekends, for example, is worth a lot of money to employees.

PN24

THE COMMISSIONER: All right.

PN25

MS KELLY: We don't control that end of it. If it were a lesser - if it were of lesser value I might accept what's being put to me but where it is such a substantial benefit, it puts my client in the invidious position of having to bargain back not a small benefit that it says it always should have had but a large and substantial benefit.

PN26

THE COMMISSIONER: It's just one of the potential hypothetical outcomes of this is that there's a public decision which says that - potentially, hypothetically - that there isn't an ambiguity or uncertainty. So therefore, what has been in place more recently is the paradigm.

PN27

MS KELLY: Yes - there's also, of course, the alternative outcome - - -

PN28

THE COMMISSIONER: I mean, subject to appeal - and I'm being completely hypothetical here.

PN29

MS KELLY: Yes, of course. There is also the alternative outcome that the Commission finds that there is no ambiguity or uncertainty but it finds for the construction contended for by my client.

PN30

THE COMMISSIONER: I suppose I'm looking at it from a batten-up perspective and putting myself in those shoes of the union and saying, "Right, what is my best alternative to a decision from the Commission today?"

PN31

MS KELLY: A decision against us from the Commission that says there's no ambiguity or uncertainty, it means what the employer contends for, leaves my client in precisely the same position it is now.

PN32

THE COMMISSIONER: It is now - and so in that sense, Ms Kelly, the worst-case scenario is no change and best-case scenario is some or all of the contentions of the union being accepted?

PN33

MS KELLY: That's so.

PN34

THE COMMISSIONER: All right, I understand that.

PN35

MS KELLY: Thank you. Let me interpose an issue.

PN36

THE COMMISSIONER: Yes.

PN37

MS KELLY: The consent orders that the parties provided to the Commission for consideration you'll note provided for submissions to be filed. What they didn't provide for was evidence to be filed. That has led to what I'm going to characterise as a misunderstanding between my learned friend and I about how today is to proceed. At my end we had anticipated that the factual substratum was largely agreed and that there may be a need for a very limited amount of boiler plate evidence that would be dealt with orally today.

PN38

To get ahead of that game we filed, last week, a short statement of Mr McGuinness, that goes to what we call those boiler-plate issues. We did that because it emerged from my learned friend's submissions that what we had understood to be effectively an agreed factual substratum is not agreed - agreed as to when the changes were made, for example, and to what payments were in place prior to the change being made. My learned friend says they had approached it on the basis that there would effectively be a two-part hearing that you would first hear the question of whether there was an ambiguity at all and you would do that in the absence of evidence.

PN39

Then if you found that there was an ambiguity there would be a second stage of the hearing in which the parties would put on evidence about the objective mutual intention of the parties, which is one mandatory consideration to be taken into account when deciding whether to vary in the exercise of the discretion.

PN40

THE COMMISSIONER: Yes.

PN41

MS KELLY: That misunderstanding leads us to the position that was communicated to me at 7.30 last night, which is why we're only raising it with you this morning, which is that my learned friend objects to the statement of Mr McGuinness going in. He wishes the Commission to exclude that statement and for us to proceed on the basis of arguing ambiguity, absent an agreed factual background. WE resist that course, Commissioner, because we say you're entitled to have regard to extrinsic material for the purposes of determining whether an ambiguity exists and we in the absence of agreement about these matters need to rely on Mr McGuinness's statement. As I indicated, my learned friend says no, you should exclude his statement and proceed in the bifurcated way that I described. However all of this came to be we think we need to find a path through it that meets everybody's needs. My learned friend has indicated that if Mr McGuinness's statement is to go into evidence he will need to put on responsive material and that would ultimately necessitate today being adjourned to another day.

PN42

As I said, we just want to find a path through this that's fair to everybody. My client needs Mr McGuinness's evidence. It wouldn't be a fair outcome for that to be excluded. The issues that his evidence goes to have been in our submissions from the very beginning. There's no surprise in them. But if it is the case that my learned friend needs time to put on responsive evidence then we would seek that the matter be adjourned to the very next available date to permit him that opportunity. It's regrettable, Commissioner, but this is where we find ourselves.

PN43

THE COMMISSIONER: Yes. Ms Kelly, thank you for explaining that. Perhaps I need to hear from Mr Harrington, thank you.

PN44

MR HARRINGTON: Thank you, Commissioner. I thank my learned friend. I thank the Commission also for the delayed start today to accommodate me and my friend for that as well and I thank my learned friend for a summary of where we're at, save for a few other relevant factors and perhaps reference to a bit of orthodoxy along the way. There was an email sent by my instructors to the instructors for my learned friend, Ryan Carlisle Thomas, which proposed what directions or orders ought be made.

PN45

If I can hand across to my learned friend but also up to the Bench that email, which explained - sorry, excuse me just for one moment. I should - it's probably on - sorry, I withdraw that. I'm not sure it made it to your file but if I can show you the correspondence - there was, you might say, four orders proposed. They weren't the orders that you made. You made - ill come to this - can I hand up a copy of a folder that I provided to my learned friend today to the Commission, which has every relevant document in it, just to assist you in this hearing.

PN46

If you go to tab one of this folder you'll see the orders that your chambers made. So you'll see that the parties exchanged that - my client sent that to the instructors for my learned friend and said, "Here's how we think it should proceed." You'll note critically at point 4 of the letter or email and also the order itself effectively provides that we come back if - we come back for further hearing if there's a determination of ambiguity. What then happens is - if you go to tab one of your folder - your chambers makes an order or gives directions, I should say, and there are three elements to that.

PN47

The first two are the critical ones: written submissions as to the existence of ambiguity and uncertainty for each party and then 3 says, "Please file an electronic form in the ordinary course." No direction or order is made in respect of the filing of material. The way that we approached that matter was that the question of ambiguity or uncertainty - to quote the High Court - is a question of text, context and purpose. The primary focus must be the words of the agreement or the award or the instrument. You look to the award or the agreement or the instrument to determine whether or not there is ambiguity in the text, in the context of what it is. It's an industrial agreement between parties. That's an important context.

PN48

That's the task of the Commission.

PN49

THE COMMISSIONER: It's the first step.

PN50

MR HARRINGTON: It's the first step. Our approach we thought was quite obvious from the orders made is that the first step ought be dealt with first, which is hear argument on the critical question. You might call it a clinical question - - -

PN51

THE COMMISSIONER: I was about to say a technical question.

PN52

MR HARRINGTON: Yes, because if we win that argument - and this is not controversial - there's nothing more to happen. If you were to determine after hearing the legal arguments on the text of the agreement - if you were to find more or less 24.1 and 24.2 there is no ambiguity, you might not like what it says but there's no ambiguity about how it's put - - -

PN53

THE COMMISSIONER: It's not about liking.

PN54

MR HARRINGTON: It's not about liking or fairness. There is no ambiguity and you're the decision maker. You've heard submissions on that. My learned friend says, "But we don't have agreed facts." We do have an agreed fact. We have one, central agreed fact.

PN55

THE COMMISSIONER: We disagree.

PN56

MR HARRINGTON: Well, second fact - we're subject to the instrument. We're fighting about the instrument. The instrument is the instrument. Look at the four corners of that instrument. Look at all the words, all the clauses - is there an ambiguity arising out of the relevant two provisions that we're having a fight about? My learned friend says in respect of each of them, "There's an ambiguity because they're alternative interpretations." If I win, no ambiguity - as the respondent, it's over. If my learned friend succeeds in convincing you that it doesn't appear to make sense or there is an alternative way of looking at it, then you have jurisdiction and the question of variation - a discretionary question - is alive.

PN57

It's live and one thing that's relevant, no doubt, will be that what if there is this ambiguity? What did the parties intend? You might choose to receive evidence of the surrounding circumstances when the agreement - negotiations and the like, to try and determine a really important point. If there is this ambiguity which you have determined, what was the common intention of the parties? What did they intend by this clause? Then you may exercise your discretion to vary. You might say, "I'm not going to vary in all the circumstances," for other reasons.

PN58

But the point about this is there is nothing radical in this Commission coming to the primary question - the first question - with a clean, crisp focus on a question of construction. If I can refer you to the folder - it's just one paragraph I want to take you to on a decision that is before you and that is at tab 11, SJ Higgins, back from 2 May [2001] AIRC 420 PR 903 843. This is under the old legislation, section 170MD(6)(a). You might recall those days, Commissioner, because you have been around for a while.

PN59

THE COMMISSIONER: Mr Harrington, flattery like that - - -

PN60

MR HARRINGTON: Your vast reservoir of experience - I don't know your start date but I think you were here in 2001.

PN61

THE COMMISSIONER: I definitely was.

PN62

MR HARRINGTON: That's a while ago - that's a couple of years ago.

PN63

THE COMMISSIONER: Yes - just yesterday, Mr Harrington.

PN64

MR HARRINGTON: It feels like yesterday. So section 170MD(6)(a) is pretty much on all fours and you'll see at paragraph 3 the power to vary a certified agreement under section 170MD(6)(a) is dependent upon there being an ambiguity or uncertainty.

PN65

THE COMMISSIONER: Can I just - - -

PN66

MR HARRINGTON: Can I just finish that submission?

PN67

THE COMMISSIONER: All right, finish that.

PN68

MR HARRINGTON: Just to paragraph 4:

PN69

After hearing the parties, I determined I would deal with the question as to whether or not there is ambiguity or uncertainty under subclause (indistinct) as a discrete and preliminary matter.

PN70

THE COMMISSIONER: Yes.

PN71

MR HARRINGTON: Yes:

PN72

In relation to that aspect I heard submissions from the parties on that day.

PN73

THE COMMISSIONER: Yes.

PN74

MR HARRINGTON: What I'm putting to you is there's nothing radical in coming here and saying, "Put your submissions in. Let's have the argument whether an ambiguity exists on the face of the document. Let's hear that and the Commission then decides it.

PN75

THE COMMISSIONER: I disagree with you because implicit in the second thing that I said to Ms Kelly was - came from a viewpoint that this was a one-stop hearing. The Commission I thought more latterly and does hear all of the material that's necessary even if it is a two-step thing and that is more efficient and it obviates the need for parties to come back. In general terms it does not prolong the hearing generally by a great deal of time and so the course of the proceedings that you are suggesting, Mr Harrington, is from the Commission as presently constituted's perspective not the usual way in which these sorts of matters are dealt with of more recent times. Does that make sense?

PN76

MR HARRINGTON: I - you're talking about a convention that operates. I understand that and I've referred you to an authority where it's been done differently.

PN77

THE COMMISSIONER: I respect that but I suppose I was completely oblivious to any - and I apologise for that - any notion from the respondent's perspective that it would be a - it could be - I'm saying hypothetically, potentially, right - - -

PN78

MR HARRINGTON: Yes.

PN79

THE COMMISSIONER: - - - a two-step process. So from my perspective I was - hence my question about what in heaven's name do you want - how do you want the agreement to be varied, that's because I thought today the whole thing was being dealt with.

PN80

MR HARRINGTON: Yes.

PN81

THE COMMISSIONER: The whole thing - one step, two step.

PN82

MR HARRINGTON: Well - - -

PN83

THE COMMISSIONER: I mean, the evidence - - -

PN84

MR HARRINGTON: - - - we travelled along the course in reading my learned friend's submissions and putting in our submissions thinking it is travelling exactly how we had presumed it would travel, which is counsel on each side is going to get up and have an argument on the construction question on what the agreement means as a stand-alone document, having regard to an objective analysis of what the language requires and the like.

PN85

THE COMMISSIONER: Yes, yes.

PN86

MR HARRINGTON: If we've misinterpreted that - of course, we found out about 4 pm last Friday that here is a statement that is not just a statement because you might be aware it attaches document as well.

PN87

THE COMMISSIONER: It does. It does.

PN88

MR HARRINGTON: It's like, well, I don't accept at all - with the greatest respect for my learned friend who is a highly-talented advocate - I don't accept that this Commission runs or any court runs in a way where it's - at a time of your choosing, 4 pm on a Friday before a Tuesday hearing - you can produce a document to say, "By the way, we're just giving you a heads-up." You're the applicant. If you're going to produce not only assertions of fact in a statement but other documents, particularly wage records, well, a weekend and one business day where I happened to be in a mediation all day yesterday is not enough time for us to put our material together - not in response generally but in response to your particular material.

PN89

THE COMMISSIONER: That's a second issue.

PN90

MR HARRINGTON: Yes.

PN91

THE COMMISSIONER: I'd like to deal with that separately, because when Mr McGuinness's witness statement came in, that confirmed for me - that sort of finished off the material that I thought needed to be before the Commission from the applicant's perspective in terms of the normal way that the Commission goes about doing it. I did actually wonder where the respondent's corresponding material was.

PN92

MR HARRINGTON: Might I observe, in the ordinary course - - -

PN93

THE COMMISSIONER: That's not being critical.

PN94

MR HARRINGTON: No, no, no - I accept that.

PN95

THE COMMISSIONER: At all.

PN96

MR HARRINGTON: I take it that way. If we had been visited with or served with the McGuinness statement at the time the submissions came in - - -

PN97

THE COMMISSIONER: Earlier.

PN98

MR HARRINGTON: - - - I would have said, "Okay, they're going into evidence. We either object to that or we have to contest it and call our own evidence."

PN99

THE COMMISSIONER: Yes.

PN100

MR HARRINGTON: It mystifies me that there were directions made - and I accept that literally they say written submissions - but if you're going to call evidence, why wouldn't you put it on to give the other side some advanced warning about that? It's a matter for you, whether you call for an explanation, but we are where we are.

PN101

THE COMMISSIONER: Yes.

PN102

MR HARRINGTON: I want to bring to your attention - I want to come to the second part of my submission, which is if you are - and I can read what's happening here - if you are moved to entertain that evidence an adjournment must be sought by my client. If you need to hear me on that - - -

PN103

THE COMMISSIONER: No, because there is the issue of fairness.

PN104

MR HARRINGTON: Yes.

PN105

THE COMMISSIONER: The material came in - step one - the Commission has a preference for doing the whole - having all of the evidence and material at once, right?

PN106

MR HARRINGTON: Yes.

PN107

THE COMMISSIONER: I have that material, as far as I understand it. It's all the union is planning on providing the Commission, that will deal with step one and step two if required. I don't have that from the respondent. That is not right, however it came to be. So therefore the respondent needs the opportunity to provide material in response, whatever that looks like. That's for you to sort. You need appropriate time to do that. Then the applicant needs - the next hearing date needs to allow sufficient time for the applicant to get instructions about that.

PN108

MR HARRINGTON: Of course.

PN109

THE COMMISSIONER: That, to me, seems to be it, really. But you can tell me if you think I've got the wrong end of the pineapple, Mr Harrington.

PN110

MR HARRINGTON: No, the pineapple seems to be pointed at me at this point. (Indistinct) if it comes flying in my direction.

PN111

THE COMMISSIONER: I'm a rotten shot, Mr Harrington.

PN112

MR HARRINGTON: In saying that - of course generally the Commission has received the statement, of course you make no comment and you can't at this time as to admissibility. I need to put on the record here - - -

PN113

THE COMMISSIONER: No, because I haven't heard you.

PN114

MR HARRINGTON: - - - what we have to do.

PN115

THE COMMISSIONER: Yes.

PN116

MR HARRINGTON: There is a really important and significant question on how admissible any of that evidence - proposed evidence from Mr McGuinness - will be. The reason for that - and I want to foreshadow this very clearly because I don't want to waste time next time we come back here but there is a very recent decision and a helpful decision by the Full Bench, and this is at tab 16 of the folder, Energy Australia Yallourn. The Berry decision is a very significant decision with its 15 principles. You might know of that.

PN117

THE COMMISSIONER: I've got - yes, I read that.

PN118

MR HARRINGTON: At Berry - this is tab 15 of the folder - at Berry it says this:

PN119

The admissibility of the post-contractual conduct as an aid to the construction of the contract is a somewhat vexed issue in respect of which no clear line of authority has emerged.

PN120

That is the Full Bench in Berry.

PN121

THE COMMISSIONER: Yes. Yes.

PN122

MR HARRINGTON: We then go to the 15 Berry principles at paragraph 114 and principle 12 onwards - this is again relevant, "Evidence of objective background facts", so of course that excludes subjective intentions, "objective facts, evidence of prior negotiations', it goes on:

PN123

Notorious facts of which knowledge is to be presumed, evidence of matters that are common contemplation, the diversity of interests involving negotiation in the making of enterprise agreements warrants the adoption of a cautious approach to the admission reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process.

PN124

My learned friend is well skilled in the area. I'm sure she probably knows about the Berry decision. The relevance of making a submission now is to flag on the record that when one looks to the witness statement of Mr McGuinness, it has three elements. Paragraph 6 to 9, it talks about the prior negotiations in 2012. Paragraph 10 to 12 it talks about a change in payment. That's what I'll call subsequent conduct. So you've got evidence as to prior negotiations, evidence as to subsequent conduct and then 13 onwards talks about no consultation and I'm not sure how that's relevant.

PN125

Again, not making my final submissions on this but I'm flagging that that sort of evidence is contentious, vexed and has to be dealt with very cautiously for the reasons set out in Berry and then again in the Energy Australia decision at tab 16 of your folder that we handed up because at paragraph 31, there is a reference to Golden Cockerel and Berry, the two well-known authorities.

PN126

THE COMMISSIONER: Yes.

PN127

MR HARRINGTON: The High Court is referred to by the Full Bench there, which is where their Honours say:

PN128

Where the provisions of a contract are determined objectively by reference to text, context, the entire text of the contract as well as any contract document or statutory provision referred to in the text of the contract and purpose.

PN129

What I was trying to say to you before is - and I want to make this submission very clear - I hear what you have said and I think I know the direction we're heading in. there was every reason to proceed today, to focus on the text, context and purpose by looking at the agreement itself and saying, "On the face of it - forget all the surrounding noise but on the face of it, is there an ambiguity?" What then happens if you're against me and say, "Well, there is," the evidence probably will open up to about surrounding circumstances although you'll approach that cautiously, about negotiations and subsequent conduct.

PN130

The evidence then opens up because you need to know if you have to vary, how should I vary? That's when you will receive the evidence.

PN131

THE COMMISSIONER: That's my question.

PN132

MR HARRINGTON: Yes. So to go back, I want to flag that when we come back, objection will be taken to the admissibility of the McGuinness statement on the question of construction on this first step, as you've described it yourself, on the question of what do the words of the agreement mean? You would fall into appealable error to say, well, Mr McGuinness has a view about what it might mean or how it came about. That's not relevant at this first step.

PN133

THE COMMISSIONER: But that's - I don't think - I could be wrong. I can't put myself in Mr McGuinness's head but I didn't see his evidence as addressing the first step. His evidence was the second step.

PN134

MR HARRINGTON: Yes, and that is what I want to be clear about. We consider that to be a second step focus, that evidence.

PN135

THE COMMISSIONER: Correct, yes.

PN136

MR HARRINGTON: If we have to call evidence in response and - - -

PN137

THE COMMISSIONER: It would be helpful.

PN138

MR HARRINGTON: I provided a document to my learned friend last night, just one wage record that we've already found, that raises an issue. That will go to the second-step analysis.

PN139

THE COMMISSIONER: Correct.

PN140

MR HARRINGTON: So I'm not sure what my learned friend will say about that. She doesn't have to say anything today. Perhaps next time we'll have the argument but I want to flag this, that evidence of this calibre, of this nature, by the applicant goes to the second step. It does not go to the first step.

PN141

THE COMMISSIONER: Sorry, Ms Kelly? Do you - - -

PN142

MS KELLY: I want to be helpful in this conversation.

PN143

THE COMMISSIONER: Please.

PN144

MS KELLY: I don't want my learned friend to proceed on an erroneous basis. We are entitled to call evidence of surrounding circumstances for the purpose of identifying whether in fact an ambiguity exists. That has been the law since 2013 at least. It was applied in Golden Cockerel. It was applied in Berry and it was also applied in (indistinct.)

PN145

THE COMMISSIONER: I used to think that, Ms Kelly, but I have noticed over the last few years that it's actually - it's not quite so blurry. It's a lot more distinct, I think.

PN146

MS KELLY: The High Court authority - and both my learned friend and I have brought all the relevant authorities and we can go through them in more detail when we come back - is very clear that extrinsic material can be used for the purpose of identifying whether the ambiguity exists. That's what we will be using that evidence for. Now you might be against me on it, when I make that submission.

PN147

THE COMMISSIONER: All right.

PN148

MS KELLY: But we are entitled to use extrinsic material for that purpose.

PN149

THE COMMISSIONER: I mean, can I reframe it this way: from the Commission's perspective, when we get back together, the Commission would be expecting that there would be submissions and evidence covering step one, step two, however you characterise them and delineate them. Now, in terms of reaching a decision about step one, in terms of both of the alleged uncertainties and ambiguities, the Commission will, obviously following the submissions of the parties, we'll rely on X amount of evidence in order to do step one, whether X is zero, or whether S includes Mr McGuinness and whoever else, all right?

PN150

But it actually doesn't matter, being pragmatic, about - because we're going to do the whole thing at once. It's going to be - it's my job to ensure I don't get rolled on appeal by insuring that the Commission, in making a decision about step one and step two, relies on evidence that is consistent with the authorities. So - but what is important from the Commission's perspective is that it has evidence from both sides about both bits and I don't have that now. Secondly, it would be really, really, really helpful if there is actually an agreed factual matrix underneath it which I thought there was but it sounds to me like there may not be, as of this minute; as at this point in time. So that would be really, really helpful.

PN151

MR HARRINGTON: Well, I intended to communicate with my learned friend and once we've done our homework - because we've got to get a statement in, we've started doing that - if we can agree on most if not all things, that's even better for all of us.

PN152

THE COMMISSIONER: That would be brilliant.

PN153

MR HARRINGTON: Given it's my learned friend, I doubt it, but - I'll put that on the record.

PN154

MS KELLY: Is it too late for me to take back my objection to my learned friend's appearance?

PN155

THE COMMISSIONER: I suppose he's sort of being even-handed in a way, Ms Kelly. He gave you lots of compliments right up front. But then he slips this other one in round the side.

PN156

MR HARRINGTON: There is one matter of substance that we seek clarification of because you asked about it, quite correctly. You said if there is an ambiguity, what are you asking for by way of variation? What are you seeking?

PN157

THE COMMISSIONER: Yes, what's the remedy to fix it?

PN158

MR HARRINGTON: We have looked at the application and the submissions and there's a lot of movement on this question. We think we should be told up front, at least textually, if there is this ambiguity on either clause, how do you say it should read, because if I can take you to tab 4 of the folder, which is the original application on page 3 at point 2, "Order for relief sought." I will just, if I might, focus on 24.1 here, at 2.1 if you have that, Commissioner.

PN159

THE COMMISSIONER: Yes. Sorry.

PN160

MR HARRINGTON: At 2.1 at 3: "To correct the ambiguity in 24.1" - agreement, et cetera - "the first sentence of clause 24.1 will be deleted." So it's asking for, as I apprehend it, an entire sentence - we would contend a pretty critical sentence to be deleted in its entirety. If you recall 24.1, it provides - - -

PN161

THE COMMISSIONER: Yes, that's - - -

PN162

MR HARRINGTON: "An employee may be required to work shifts being any work (excluding overtime) which is rostered to commence after 12 noon and finishes after 7 pm on any day or finishes before 7 am on any day." That's the application - the Commission said you've got to take that whole sentence out and I don't want to get into submissions about that.

PN163

THE COMMISSIONER: No.

PN164

MR HARRINGTON: Obviously one effect would be to remove what we say is the definition of shift work. It just goes.

PN165

THE COMMISSIONER: Yes.

PN166

MR HARRINGTON: Now, I need to understand how, because of course we're not running today as I apprehended, is that still what you're saying - that the whole first sentence goes, or is there a different form of amended, varied words that the union will contend for and that's in respect of both 24.1 and 23.3 because it's alleged there is an uncertainty in 23.3.

PN167

THE COMMISSIONER: Cool, thank you, Mr Harrington.

PN168

MR HARRINGTON: Thank you.

PN169

THE COMMISSIONER: Ms Kelly.

PN170

MS KELLY: We will file a document that marks up in precise terms the proposed change and we'll do that today.

PN171

THE COMMISSIONER: Cool - is that - - -

PN172

MR HARRINGTON: As long as we have it - in anticipation of our own evidence, et cetera, that's fine. Now, in discussions with my learned friend about if there were an adjournment, what would happen, we have no desire to push it off into the never-never. It's really a question of particularly your timetable and our timetables. We think within a week we can do our investigation of particularly time and wage records. That's going to be critical for us.

PN173

THE COMMISSIONER: Yes.

PN174

MR HARRINGTON: Because there was a change of ownership or management of the company, we've got to go back to Geo Care records and reconstruct some of the archive, I think, so we'll need a little bit but not a lot of time to do that. Am I right about that?

PN175

MS KELLY: Yes, I'd have to get that this week, just because I've got other things I have to do next week.

PN176

THE COMMISSIONER: September.

PN177

MR HARRINGTON: For you September? Okay. Do you have dates in September?

PN178

THE COMMISSIONER: My associate actually passed me a note asking me if I needed my diary and I said, "No."

PN179

MR HARRINGTON: No, that's all right.

PN180

THE COMMISSIONER: So I do need my diary.

PN181

MR HARRINGTON: Could we all perhaps have a short adjournment so I can get some instructions - clear instructions - on the time it will take and I'm assuming - - -

PN182

THE COMMISSIONER: That will allow me to get my diary and then we can go off the record and sort out a mutually satisfactory date.

PN183

MR HARRINGTON: Yes, because it should be done in almost - we'll have a day but I reckon we'll do it in half a day because any cross-examination won't take a lot of time. But, no, I'm saying it's not two days, it's a day.

PN184

THE COMMISSIONER: A fat half a day.

PN185

MR HARRINGTON: Sorry?

PN186

THE COMMISSIONER: A fat half a day, I would have thought - maybe finish by 3, sort of thing. It's not going to be two days.

PN187

MR HARRINGTON: It's not going to be two days.

PN188

THE COMMISSIONER: Yes, cool, yes - but that really requires a day in my diary - being pragmatic, Mr Harrington, and they're like hen's teeth at the moment and I suspect for you both as well. So shall we have - how long would you like in order for me - I'll go and get my diary. You need to take instructions and I assume that Ms Kelly needs to do the same so would you like me back in five minutes or 10 minutes?

PN189

MR HARRINGTON: 10 minutes might be good, if we could, thank you.

PN190

THE COMMISSIONER: 10 minutes? Easy, done - we shall adjourn for 10 minutes and if it's all right, when I come back we'll go off - we won't be on the record, just so we can do the diary thing and then we'll formally go back on the record and - because Appeal Bench doesn't need to read all about us deciding what day is a good day. I'll adjourn for 10 minutes.

OFF THE RECORD [11.19 AM]

ON THE RECORD [11.53 AM]

PN191

THE COMMISSIONER: I'd like to thank both parties for the opportunity to have sorted out the future programming of this matter in private conference off the record. A new notice of listing with directions will be issued but it was important from the Commission's perspective to actually record on transcript now the outcome of the discussions with the parties about the future programming that we have just had. So within 24 hours - so by whatever time it is - so by midday tomorrow, which is Wednesday 2 August, the applicant will provide to the respondent a document setting out the variation of the agreement - the variations of the agreement that are sought to remedy the complaint that there are ambiguities or uncertainties with respect to certain clauses.

PN192

By close of business on Friday 18 August the respondent will file and serve to the applicant and on the Commission any evidence upon which it intends to rely. The applicant by close of business on Friday 1 September will provide any further evidence in reply and then by close of business on Friday 8 September the parties will provide to the Commission the facts that have been agreed. Now, eternal optimist says that there will be total agreement about the factual matrix underpinning this matter. However, if the parties are unable to agree all of the relevant facts the Commission would be grateful if the parties could identify what facts it has not been able to agree because if necessary the Commission will be required to make findings of fact.

PN193

I would rather that this was an absolutely transparent process. Then the matter will be listed for hearing on Monday 11 September, commencing at 10 am. From the Commission's perspective, I think that that summarises the discussions - the outcomes of the discussions between the parties off the record. Is that correct?

PN194

MS KELLY: From the applicant's perspective, it is, thank you.

PN195

MR HARRINGTON: Yes, thank you.

PN196

THE COMMISSIONER: Lovely - thank you very much to both of you. I shall adjourn until 10 am on September 11. Thank you.

ADJOURNED UNTIL MONDAY, 11 SEPTEMBER 2017 [11.57 AM]

Fair Work Commission Transcripts

AG2017/ 487 , Transcript of Proceedings [2017] FWCTrans 339 (10 August 2017)