C2018/1607, Transcript of Proceedings [2018] FWCTrans 304 (13 August 2018)

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PN1

VICE PRESIDENT CATANZARITI: Thank you. I note the appearances are the same as on the last occasion. However, the Bench has been reconstituted due the unavoidable illness of Hamilton DP. Is there any objection to that?

PN2

MS SAUNDERS: No, your Honour.

PN3

MR POLLOCK: No, your Honour.

PN4

VICE PRESIDENT CATANZARITI: Thank you. We'll then proceed.

PN5

MR POLLOCK: Thank you, your Honours and Commissioner. We propose to proceed today in the manner that we flagged at the outset on the last occasion, that is to deal with each appeal effectively in tandem rather than sequentially, if that's convenient for the Full Bench.

PN6

VICE PRESIDENT CATANZARITI: Yes, go ahead.

PN7

MR POLLOCK: Your Honours and Commissioner, my appeal has five grounds. Grounds one and two can conveniently dealt with together and they concern the ability of the AMWU to act as bargaining representative for the sales employees, which of course you will recall are the group of employees to which the two determinations at first instance were made. Secondly, ground two deals with the primary Commissioner's reasons or lack thereof and findings or lack thereof concerning that issue.

PN8

Grounds three and four concern the primary Commissioner's assessment of the fairly chosen criterion. Ground five deals with the primary Commissioner's assessment of whether or not it was reasonable in all the circumstances to make the two determinations that he did. Of course, if I make good ground one, then there is no need to consider the other grounds.

PN9

In that circumstance, the two determinations would be quashed and in my submission, it would be open on rehearing for this Full Bench to dismiss the application without being burdened with a further separate subsequent rehearing process, and I'll outline the reasons why that is so.

PN10

Turning first to ground one, put very simply, it is the AMWU is incapable of covering sales representatives or these sales representatives under its rules. It follows that it cannot be a bargaining representative for those employees and so the two applications that were made with respect to the sales employees lacked the requisite jurisdictional foundation.

PN11

The relevant rule within the AMWU rules, at least as we understand it, is rule 1E. We have copies of the AMWU rules here. That being said, of course the rule is extracted at paragraph 7 of our outline.

PN12

MS SAUNDERS: I do objection to the late tender of the AMWU's rules. It's probably a matter for evidence.

PN13

VICE PRESIDENT CATANZARITI: Presumably you're only drawing our attention to that which is in your submissions, are you Mr Pollock?

PN14

MR POLLOCK: That's right, Vice President. If my learned friend has a further objection to it, but I'm content to simply rely on the extract of those rules which contains the relevant rule in the submissions.

PN15

MS SAUNDERS: I mean it is a difficulty, of course the full body of the rules is necessary for any proper interpretation of the extract, but it just exposes the fundamental vice of agitating this point on appeal. If it's confined - if the submissions are confined to the extract that's in my friend's submissions, I don't object to that. But the objection to the tender of the full document is pressed.

PN16

VICE PRESIDENT CATANZARITI: We think it would be helpful to the Bench to have all rules in, so we're going to take whole of them.

PN17

MS SAUNDERS: May it please.

PN18

MR POLLOCK: Thank you, your Honour. In those circumstances, I'm not sure whether you'd like to mark that.

PN19

VICE PRESIDENT CATANZARITI: We'll mark it exhibit 1.

EXHIBIT #1 AMWU'S RULES

PN20

MR POLLOCK: Thank you. Of course the relevant rule, at least as we understand it is rule 1E. That rule as extracted at paragraph 7 of the outline, reads as follows:

PN21

Without in any way limited or being limited by the subrules 1A, B, C, D, F, G, H and I, the union shall also consist of an unlimited number of employees engaged in or usually engaged in the process, trade or business connected with or incidental to the manufacture, assembling or repairing of carriages, carts, wagons, trucks, railway cars, tram cars, motor cars, motor cycles, side cars, aircraft and other vehicles used in their transit and all other vehicle or parts thereof, whether in wood and/or metal and other material.

PN22

What follows is the important part:

PN23

Preparation for sale of motor vehicles, pre-delivery and sale by auction of any motor vehicle including detailing work and the rental of motor vehicles including cleaning and detailing work but not clerical in customer service work, together with any persons appointed as officers of the union and elected as members thereof.

PN24

That rule, as was identified - you'll see footnote 4 in the Avis case was identified as an industry rule as opposed to an occupational, trade or calling rule. Thus, the distinction of eligibility is the total business of Motors Tas.

PN25

At paragraph 8 of my outline and I set out some of the principles that govern how that assessment is conducted. I simply observe one critical point, that is an employer can have more than one enterprise, relevantly for eligibility rule purposes, provided that each reaches the level of a substantial character of its overall broader business. That is borne out by the Full Bench in Dyno Nobel and again the Full Bench in GJE. Both of those are footnoted in the submissions. I don't take the Full Bench to those passages.

PN26

The construction of that rule of course, is a question of law. It's application to a particular group of employees involves a question of mixed fact of law. But the construction of the rule itself is a legal question. We say simply that the enterprise is selling new and used vehicles which Motors Tas conducted, clearly falls outside the scope of rule 1E. There are two principle reasons, having regard to the proper principles of construction that lead to that conclusion.

PN27

The first is on both a natural and ordinary meaning basis and a contextual basis, when one looks at the words of rule 1E, one sees this. Firstly, the express limitation of pre-delivery and sale work - this is preparation for sale of motor vehicles pre-delivery and sale, are qualified and limited by the words 'by auction' or any motor vehicle. That is, they impliedly exclude sales by other means including - - -

PN28

VICE PRESIDENT CATANZARITI: I don't want to stop you Mr Pollock, but if all you're going to do is read the written submissions, that's not that useful. We're asking for amplification in oral submissions. We have read the written submissions, so just let's focus on what you need to amplify.

PN29

MR POLLOCK: Thank you.

PN30

DEPUTY PRESIDENT COLMAN: The company doesn't conduct sale by auction, at all?

PN31

MR POLLOCK: It doesn't.

PN32

DEPUTY PRESIDENT COLMAN: Not at all.

PN33

MR POLLOCK: It does not. To be clear, there's no evidence below that it conducted any sales by auction. I make this observation of course, Deputy President. At first instance this was not a matter which Motors Tas was required to establish. Motors Tas, in an application for majority support determination, an employer is not compelled to appear. Let's assume for the moment that Motors Tas did not appear below, it would have been incumbent on my learned friend to establish and to satisfy the primary Commissioner that in fact, it was capable of being a bargaining representative.

PN34

So, to the extent that there is any deficiency in the evidentiary case, then that's at the feet of my learned friend.

PN35

DEPUTY PRESIDENT COLMAN: I'm just curious as to your position on it and I'll ask Ms Saunders the same question when she - - -

PN36

MR POLLOCK: The position is this, Deputy President, there was no evidence below to suggest that there were conducted sales by auction. At least my instructions are that there are no sales conducted by auction. They don't operate an enterprise in that way; they operate an enterprise selling new and used vehicles in a retail sense.

PN37

DEPUTY PRESIDENT COLMAN: I'm just thinking as I look at the rule. It says trade or business connected with, which potentially is a hook. If you did actually conduct some sales by auction, I was wondering if Ms Saunders then might say well, that the non-auction sales were somehow connected with the auction sales.

PN38

MR POLLOCK: Yes, and Deputy President, in a circumstance like that, there's no basis upon which that argument could be mounted on the evidence here. But let's assume for the moment that that were the case, I'll move shortly to some matters of surrounding circumstances and the purpose of this particular rule which make that argument entirely untenable. But I can simply rely on what is in my written submissions for the letter on contextual points noting the Vice President's observations.

PN39

This point of surrounding circumstances though, Deputy President is an important one. I have dealt with it in the written submissions, but I do take the Full Bench to the re AMWU case by way of amplification. That case is in the folder of authorities behind tab 3. Of course, your Honours and Commissioner will see the initial proposed amendment that the AMWU put forward to rule 1A at paragraph 4 which would have made abundantly clear that retails sales of new and used vehicles would have been caught.

PN40

That is, what was proposed was preparing, selling, whether by retail sale, wholesale sale or auctioning and including detail work that would have caught it. I draw the Bench's attention specifically to the series of dot points that the AMWU put in support of that at paragraph 5 where the AMWU observed that despite it having a significant presence across the vehicle industry in the sale and distribution sector of the industry, the existing eligibility rule is not explicitly stated.

PN41

They said that the effect of the proposed alteration - this is at paragraph 6, the union will be able to legitimise its coverage in the areas of sale, resale, preparation for sale and distribution of vehicles and part thereof. Of course what transpired, and you'll at paragraph 8 the parties are listed, there are objections across the board, employer and union sides to this amendment.

PN42

In the face of those objections the AMWU abandoned that proposal and it put forward a revised proposed amendment which is set out at paragraph 7 and the underlining reflects that which is contained in the current rule which is preparation for sale of motor vehicles, pre-delivery and sale by auction of any motor vehicle including detailing work.

PN43

Here is the critical point at paragraph 9, the objections of both the VACC and the NTA Western Australia were withdrawn on the basis of the following undertakings being given by the AMWU. These are undertakings given to this Commission in the course of proceedings, dealing with an application for the amendment of this precise part of the rules. The undertakings given to the Commission were these:

PN44

That the coverage specified in the alteration now sought by the AMWU as set out in exhibit AMWU2 is intended to cover pre-delivery and detailing of motor vehicles only. Second, that such coverage is not intended to cover sales classifications in either new or used motor vehicle dealerships or auction houses, notwithstanding that by agreement with employers in certain businesses, employees carrying out tasks that are not properly covered by the AMWU's eligibility rules have previously received representation by the AMWU.

PN45

That is an express acknowledgement by the AMWU that its prior representation of employees performing sales work in new and used motor vehicle dealerships was done by consent of employer but not authorised by their rules.

PN46

What then flows - this carries through at paragraph 13 and 14 and 14 in particular, the Senior Deputy President observes this:

PN47

I'm satisfied that the alterations now sought would have the effect of narrowing the scope of the alterations originally sought by the AMWU. I therefore consent in part to the application by consenting to the eligibility rules of the AMWU being altered in the manner specified.

PN48

That is, there was an acknowledgement by the AMWU given by way of an undertaking of this Commission, that their previous foray into representation of sales employees in new or used dealerships was not under the auspices of their rules. They gave an undertaking to this Commission that this rule, as amended, would not be used in the manner in which it is now being pressed. On that basis the objections of a range of parties, union and employer were withdrawn and the rule was amended on that basis.

PN49

Now, my learned friend makes, with great respect, no serious attempt to answer the substance of that ground in that objection and that's perhaps unsurprising given what transpires re AMWU, in particular. There is a point that is faintly raised, quite similar to the one that you raised, Deputy President, around whether or not it might be said it was in connection with sales by auction. I think my learned friend puts it that it is arguable that sales representatives are engaged in a business connected with car repairs.

PN50

Putting aside that a submission of that nature runs headlong into the very undertaking given by the AMWU to the Commission in the re AMWU case, putting that to one side. The whole thesis of the AMWU's case below was that the sales employees were a distinct grouping from the mechanics and detailers. That was the basis on which it was run, that each of these groups was fairly chosen.

PN51

VICE PRESIDENT CATANZARITI: What the union says in relation to this, is if we were of a mind to agree with you on that point, that would not be the end of the matter because they say they ran their case in a particular way below and they want to have a proper rehearing, a second crack at it.

PN52

MR POLLOCK: Yes. I'll deal with that issue now, Vice President. I was going to move on to it, but I'll deal with it squarely here. What is said is that we didn't run the point below and that approach offends Pultin v Holkin and Metwally and those authorities that would say ordinarily, a party is bound by the way in which the case is run below. In my submission, the position is somewhat different, when you are dealing with a matter that goes to jurisdiction or goes to a statutory pre-condition to the exercise of power.

PN53

I can take you to three case which bear that proposition out. The first in dealing historically and closer to home is Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Proprietary Co Ltd. It's not in the bundle, but I will provide copies. This was a case concerning whether an industrial association comprising employees in undertakings of various characters, that is mines and timber yards, in tanneries, soap and candle works et cetera, whether or not that was an association that was capable of registration under the then Conciliation and Arbitration Act.

PN54

The occupations that I draw the Bench's attention to are those of Griffith CJ which are found at 415 of the decision. This is towards the bottom of the page:

PN55

The first duty of every judicial officer is to satisfy himself that he has jurisdiction, if only to avoid putting the parties to unnecessary risk and expense. In this respect a grave responsibility rests upon the President whose jurisdiction is limited both by the constitution and the Act. This responsibility is not diminished by the possibility that he may be misled by imperfect or erroneous information.

PN56

Now, those observations were relied on recently by Lee J of the Federal Court in Kadam. This was a case involving representative proceedings and an initial jurisdictional issue was raised as to whether or not the Federal Court properly received the Federal Jurisdiction to deal with the matter. The party raising that jurisdictional objection subsequently conceded the point, or at least, no longer pressed it. You'll see at paragraph 4, notwithstanding that concession, Lee J observed this:

PN57

What necessarily follows amounts to a concession that both the representative proceeding and the separate proceeding form part of the overall justiciable controversy between the parties which is amenable to quelling by this court, exercising judicial power in accordance with chapter 3 of the constitution.

PN58

But jurisdiction cannot be conferred by agreement and the views of parties are not determinative of the question posed for determination.

PN59

Then Lee J goes on to cite that passage from Griffith CJ.

PN60

The third case I draw your attention to is one in the bundle. This is Kaswadiner v Minister for Immigration and Ethnic Affairs. You'll find that at tab 6. This was a case involving judicial review of an Administrative Appeals Tribunal decision refusing to quash a deportation order. There was a statutory precondition for that order that the individual met a certain statutory definition of immigrant.

PN61

The case in the AAT went to the merits of the deportation order but the applicant in the Full Federal Court raised a jurisdictional question as to whether the applicant was indeed an immigrant. That question was raised for the first time before the Full Court of the Federal Court. Bowen CJ in that case at 195 and on this point, both Fox and Dean JJ, were agreed, the Chief Justice observed this:

PN62

The case before this court is not merely one of parties agreeing on what facts should be decided by try of fact, nor a case of facts peculiarly within the knowledge of the party being conceded. Rather, there was a clear statutory precondition upon which the Tribunal had to be satisfied and enough material in evidence before it to raise the issue independently of the parties' submissions. In these circumstances it was an error of law not to consider and decide the issue of immigrant status.

PN63

Whether or not that error should lead to the decision of the Tribunal being set aside and the matter remitted to it, depends in my view, upon principles similar to Dixon J Bursar's case and those are to fulfil an imperative demand of justice.

PN64

There are also some relevant observations of Fox J and these are found at 199. This is at line 28. The other matter tending obfuscation was that the argument had not been presented to the Tribunal. The point had not been taken before the learned presidential member. In his long and carefully prepared reasons, he did not advert to the matter. There is not however, any requirement that the point be taken before the Tribunal and we should be cautious in trying to apply procedures and practices operating in an administrative setting, those which apply in a judicial setting.

PN65

That scenario there, that is where there was a statutory precondition to the making of an order, that is, that the applicant was in fact an immigrant, is in my submission on all fours with that which is in play here. That is, there is a statutory precondition to the Commission determining an application for a majority support determination that the applicant is a bargaining representative.

PN66

If the Commission is not satisfied of that fact, it cannot - it has no jurisdiction to and no power to make the order. I make this observation again, Deputy President, that position would not have changed whether Motors Tas had appeared below and taken the point or not or if the application had been simply made by the AMWU and there was no contradictor.

PN67

It would have been incumbent on the AMWU to satisfy the primary Commissioner and there would be no objection to Motors Tas, as a person aggrieved taking the point on appeal, had it not appeared below.

PN68

On that point, my learned friend makes this observation at paragraph 7 of her primary or her responsive submissions:

PN69

As matters stand, there is not sufficient material before the Full Bench to allow the question to be properly considered.

PN70

Of course, that may be an appropriate observation, but it's a telling one and it's a significant concession because if there is not sufficient material before the Full Bench to allow the question to be properly considered, there was necessarily not sufficient evidence before the primary Commissioner to properly consider it. That concession alone makes good ground one.

PN71

VICE PRESIDENT CATANZARITI: Assuming that was right, and I speak for myself, I have some empathy to your position on ground one, would not the safer course still be to quash the decision and have it reheard?

PN72

MR POLLOCK: Well, of course following on from a quashing of at the very least the two orders concerning the sales employees; put aside that which is challenged by my learned friend in her appeal for a moment. In my submission the text of the rule and the surrounding circumstances given life in re AMWU that I drew the Bench's attention to, in my submission, that's an open and shut case. My learned friend will say of course, well there's all this evidence we could have led on the industrial history. Well, where is it? There's been no application made to adduce any fresh evidence on appeal. There's been no attempt to identify with any precision what evidence might be led in that circumstance.

PN73

If my learned friend is able to identify with any kind of precision the nature of that evidence, then perhaps there might be some more force in saying Vice President, that one would quash the decision and either remit it back to the primary Commissioner for redetermination or alternatively, to a member of this Full Bench by way of a referral under 6073. That may well be the case. That being said, unless on the face of the materials - - -

PN74

VICE PRESIDENT CATANZARITI: But isn't the problem Mr Pollock the way the case ran below, they're not being a contradictor if you like, the jurisdictional error may have occurred and now everybody's in alignment to the problem that needs to be dealt with. If there is a jurisdictional error, there's a jurisdictional error, right.

PN75

MR POLLOCK: Yes.

PN76

VICE PRESIDENT CATANZARITI: And it looks like, to some extent Ms Saunders is virtually conceding that point.

PN77

MR POLLOCK: Yes.

PN78

VICE PRESIDENT CATANZARITI: So, it does open up - I don't know whether we need to hear much more from you on this point really. It does open up there is a problem that needs to be dealt with.

PN79

MR POLLOCK: I readily accept that Vice President, and look, of course many things can happen in the intervening period. It may well of course be that in the period after a decision quashing - at least quashing those two orders on the basis of the error identified by ground one and the listing of a matter for redetermination dealing with that, it may well be on the basis of - - -

PN80

VICE PRESIDENT CATANZARITI: It may never occur again.

PN81

MR POLLOCK: Exactly right, that those applications may not be pressed. I mean, that's a matter for my learned friend, but it may well be on the basis as you say, that the point appears to at least have - if not expressly conceded, at the very least it hasn't been squarely addressed. I can't speak for my learned friend, that's a matter for her. But it may well be that the course that you're averting to, Vice President, is one which - at least that seems to be one possible path.

PN82

VICE PRESIDENT CATANZARITI: Ms Saunders, do you acknowledge that there's a problem, or do you say that there's no problem? I mean obviously we can short-circuit this if you acknowledge there's a problem. By agreement we could quash the decision and have the matter reheard.

PN83

MS SAUNDERS: No, we don't concede that the decision - - -

PN84

VICE PRESIDENT CATANZARITI: All right, well you've got to overcome, I think Ms Saunders.

PN85

MS SAUNDERS: I understand that, Vice President. I do take your point about remittal. It really is the only sensible - - -

PN86

VICE PRESIDENT CATANZARITI: A very high bar, because it's either a jurisdictional error or it's not. But if you don't concede the point, then we'll note your observations. Yes, Mr Pollock.

PN87

MR POLLOCK: Thank you. I don't intend to say much at all more about ground one, simply a couple of concluding observations on the lead issue. No, I need not press that. I'll move on. I think I've said enough on ground one. It stands on the basis of the written submissions and what I've said orally.

PN88

VICE PRESIDENT CATANZARITI: If you're right about ground one, then the decision gets quashed.

PN89

MR POLLOCK: That's exactly right, and in my submission, particularly given the jurisdictional nature of it, there is - the matter being before the Full Bench, it would be a highly unusual course for the Full Bench to effectively avert its eyes from what is a very apparent jurisdictional problem, at first instance and kick the can down the road.

PN90

Obviously, in the event that it stands, then the same issue arises in the event of a subsequent bargaining order application. It really is in the interests of the parties that this matter be addressed as soon as possible and this is the circumstance in which it can be addressed. I say nothing more about ground one.

PN91

Ground two, there's not much more to say about that. There of course, is no finding at all around bargaining representative status, let alone sufficient or adequate supporting reasons. I simply rely on my written submissions and the authorities therein cited as to the inadequacy of simply that observation without any supporting reason or findings.

PN92

Grounds three and four, again I needn't say much about those. Ground three of course deals with, what in my submissions were areas in the anterior findings of distinctiveness, that is that the primary Commissioner acted on a wrong principle and applied the wrong test. The wrong principle was by treating the sales employees as operationally distinct simply because they held particular positions on an organisational chart.

PN93

In my submission, that runs counter to the observations of the Full Bench in QGC. Now, even if one accepted that the industrial or productive activity was selling new and used cars, there of course was evidence below that the organisation of that operation encompassed streams of new car make and used cars, each with their own sales manager and sales support staff.

PN94

If the focus is on operational distinctiveness, there were a number of other roles the car care consultant, finance, insurance, consultant, sales manager, which were intimately involved in the chain of - well, in that process of selling a new or used car. It's the exclusion of those employees upon which we rely to suggest that there has, instead of a proper focus on operational or organisational distinctiveness, there has in truth been a focus on what is really occupational distinctiveness.

PN95

There was also a finding of geographical distinctiveness, but of course these groups are plainly not geographically distinct of themselves and the remainder of Motors Tas employees. That's because there were other employees at each of Devonport and Burney that were not included.

PN96

Of course, none of these errors are of themselves determinative of the fairly charge in question. Of themselves they wouldn't necessarily amount to an error leading to sufficient doubt to warrant reconsideration. Really, in my submission it's these errors of ground three, as compounded by the error in ground four which gives rise to an error sufficient to grant permission to appeal.

PN97

Ground four, I'm content to rely on my written submissions. There have of course, been additional written submissions filed in response to some observations last time from Hamilton DP around the effect of Simeco. I think my learned friend and I are on all fours concerning the safety or otherwise of Simeco. We differ on the extent to which that's relevant in this case. I won't labour the Full Bench any further on that Simeco point. My point is simply, that that informs the Alcoa criterion and that in turn, led to the primary Commission applying a higher hurdle for cogency of proof. I rely on my written submissions in that regard.

PN98

On ground five again, that is closely related to ground four. I need not press any oral submissions, but simply rely on what's in writing there. It's essentially the same analysis as ground four, but it transpires as equally to whether or not it's reasonable in all the circumstances to make the determination.

PN99

I think in response to some questions to you, Vice President, we've at least fleshed out my position on the disposition of the appeal. In my submission, ground one is made out and it all properly be dealt with. The decision should be quashed. Now, whether or not that proceeds to a rehearing before a member of this Full Bench or is remitted to the primary Commissioner, is really a matter of which I have no great preference. There's nothing in the observations of the primary Commissioner that would make it inappropriate to be remitted to him. I'm not sure whether my learned friend has a view on that. But either course would be open.

PN100

Unless there's anything else, that's my submissions on the primary appeal.

PN101

VICE PRESIDENT CATANZARITI: Thank you. Ms Saunders.

PN102

MS SAUNDERS: Thank you. Starting with the rules coverage question. There would be some force in my friend's submissions if two things were true. Firstly, if I conceded that the AMWU did not have coverage - does not have coverage of these workers, and secondly, if there was no objector at the hearing below. Neither is so. We say these workers at least arguably, and arguably is as high as it can be fairly put today. I cannot be required to run a full rules case on appeal - arguably covered by the AMWU's rules. Motors Tas was not only present at the hearing, but was legally represented and was bound by the conduct of those representatives.

PN103

The heart of the proposition that's put is that notwithstanding Carlson and Holcim and everything that flows from that which the Bench is of course, entirely familiar with and I don't need to revisit. The proposition is, despite that, if a party represented by solicitors below can nevertheless, identify a new issue as jurisdictional. Either it is jurisdictional or it can be possibly characterised is jurisdictional. They can run it afresh on appeal, regardless of whether it's a question of law; regardless of whether as it is here, my friend correctly concedes, a mixed question of fact and law.

PN104

That is a proposition contrary to authority and that has significant consequences beyond today's appeal. Consider for example, a section 739 application. A party could take their chances at first instance and hold in reserve the point of whether a dispute resolution process had been fully complied with, which is a question of fact of law in the sense that it involves interpretation of the dispute resolution clause and questions of fact whether certain steps have been followed. If my friend's approach is correct, that's equally open to parties here.

PN105

Similarly, the unfair dismissal jurisdiction threshold questions of income which might not necessarily arise at first instance could be held in reserve, kept in the back pocket to enliven an appeal. It is enormously significant here that no evidence, not even an explanation has been provided as to why this point was not taken at first instance. It could be inadvertence, it could be a tactical decision of the kind I've adverted to. It could be a different legal view; the view I have that these workers fall within the AMWU's rules. All those options are available which makes the course proposed by the appellant unsafe.

PN106

If I can take your Honour's and Commissioner to the authorities that my friend handed up earlier. Starting with Federated Engine Drivers, if I could at page 415. The extract was read out that duty to satisfy, yes of course, that is so. The final sentence is of significance:

PN107

In most cases that come before it, an ordinary court of law, it is not necessary to make any enquiry on the subject, although in some cases it is.

PN108

It continues on the next page.

PN109

Moving now to the second decision, Kadam. My friend took you to paragraph 4. Paragraph 5 on page 2 also warrants attention, where Lee J reiterates Gageler J's comments about the necessary of jurisdictional points being taken. Kadam, Federated Engine Drivers, neither are authority for the proposition that a jurisdictional point may be taken at any point or at large, or that a judicial officer is obliged to go up hill and down dale to seek out controversy where none is averted to. The issue arises when a jurisdictional point is raised.

PN110

In Kadam, as it's made plain in paragraph 5, the dispute was part of the pleadings. There was a point expressly taken once the Tribunal was alert to a jurisdictional issue. Certainly, the enquiry must be carried out and the state of satisfaction reached, a decision expressed in these terms and fully explored and ventilated. But it doesn't mean that every possible conceivable jurisdictional objection, and there are multitudes, particularly in the context of majority support determinations must be ventilated.

PN111

The reality of the decision is that it's apparent from the text that Lee J was alert to the need for the application to be made by a bargaining representative. The relevant section of the Act is extracted. The fact that he proceeded demonstrates that he was so satisfied that the application was properly made and properly before him. The respondent's failure to avert to that is fatal to their appeal now.

PN112

DEPUTY PRESIDENT COLMAN: The question of all rules coverage isn't something that the Act requires the Commissioner or the Commission member to be satisfied of. I mean, it's just - section 237 says the Commission must make an order if the Commission is satisfied of those four things in 237(2). But among them, isn't the eligibility question. The eligibility question comes in in 236.

PN113

MS SAUNDERS: Yes, I take your point Deputy President, and I do agree. It is necessary for a person to have standing to make a majority support determination to be a bargaining representative. Section 176(3) requires a union to have rules coverage to be eligible to be a bargaining representative of any employee. This isn't controversial; it's been explored in some detail by the Full Court in ResMed v AMWU. Special leave on the point was refused, but that's not quite the distinction I'm making. I don't take issue with that analysis and that's why I say that it would be significant if I conceded that we didn't have coverage. If I said that, that is, as Catanzariti VP observed, clearly jurisdictional error. It's not so here. We say there it is not the open and shut case that my friend put it.

PN114

DEPUTY PRESIDENT COLMAN: What do you rely on?

PN115

MS SAUNDERS: I do rely on rule 1E. It's been described by my friend as an industry rule. That's how it's described in Avis. It's not entirely, in my submission, a correct characterisation of the rule. It's one of mixed industry and occupation. The reference to the word trade makes that clear. It's of some significance here, but only very limited.

PN116

Before exploring the words of the rule in more detail, could I take your Honour's and Commissioner to re AMWU, the rules variation decision that my friend spent some time with? I'm very grateful to my friend. My copy of the authorities is unfortunately still in Sydney.

PN117

If I can take you to the section which was said to be necessarily a concession by the AMWU, paragraph 9, the undertakings by the AMWU. My friend is quite correct. Undertakings either made to the Commission or made between industrial associations are a relevant consideration in interpreting union rules.

PN118

What we see at paragraph 8 is the details of withdrawal of the objection. Notably VACC and MTA WA, two letters. Those letters it can be presumed set out in full the details of the undertakings the AMWU gave to those Victorian and West Australian associations in resolution of the rules dispute, that are then summarised at paragraph 9. Those documents form part of the extensive volume of evidence that would be necessary that would have been put if this had been taken at first instance, setting out at full.

PN119

What's not clear from this decision is whether those undertakings were at large; whether they applied in West Australia and Victoria only, they're specific to those states, not an unusual state of affairs in rules organisations. Or, precisely what they mean. Whether it's sales classifications in motor dealerships that only do sale by auction, that only do sales and repairs as opposed to the mixed business operation that we're dealing with Motors Tas.

PN120

One of the few things about the business that emerges on the evidence that they do both, the pre-delivery preparation for sale and repair of motor vehicles. Significantly more evidence would need to be before the Commission about that mix, about how intertwined the roles are before you could safely determine whether these people are engaged in a process, trade or business connected with or incidental to - the degree of dominance is significant but it's not a situation where these workers are entirely and explicitly outside the rules coverage of the AMWU.

PN121

I mean, the AMWU's rules contain multitudes. They are very expansive. But there are, I accept, professions that fall outside them. If we had applied for a majority support determination perhaps for kindergarten teachers, I would have more difficulty than I'm currently having mounting an argument that they were covered. This is not that. This is people engaged in a business which does at least some work - the precise proportion is not currently before the Bench, which falls squarely within the coverage of this mixed industry and occupational rule of the AMWU.

PN122

Similarly, the question that your Honour Coleman DP raised earlier, whether Motors Tas engages in any sale by auction, you've had a submission from the Bar table that it does not. That's insufficient of course, to ground a finding that the workers are outside the rule on that basis. It also doesn't explore what the full meaning of the words 'sale by auction' are, or possibly in connection with sale by auction.

PN123

It's a submission of my own from the Bar table, but sale by auction requires a particular kind of licence for motor vehicle purveyors. It might be sufficient and it would depend on the history of the rule and the full details of that variation that introduce those rules, that subsection of rule 1E, as to what that meant. Perhaps it's sufficient for Motors Tas to have that licence. I have no idea whether it does one way or the other, because this point wasn't taken at first instance.

PN124

An issue was raised about what evidence I would put, how the AMWU would have conducted its case differently if this had been run before. The case is conducted differently in at least one of two ways. Firstly, we have the full-blown rules dispute. I put a hundred years of the AMWU - not just the AMWU's rules, the vehicle body builders' rules in different states. We have the full file of that contested variation, those contested undertakings before the Commission.

PN125

We have detailed evidence from the workers concerned about the nature of work they perform, the nature of the business. Instead of what we had, which is two employees of Motors Tas who themselves are confused - I'll withdraw that. Who themselves give unclear evidence. It's noted in Lee C's decision about the precise role people have. What a detailer is. These basic propositions. That's one option. The nature of that evidence is fairly self-explanatory in a rules context.

PN126

A secondary option that we might have explored is an application to vary the scope of the proposed agreement to capture both the sales workers and the mechanics at the Devonport site, at which point the jurisdictional objection entirely vanishes. Only needs to be a bargaining representative for a single employee. There is no suggestion, happily, that we are not a bargaining representative for motor mechanics.

PN127

DEPUTY PRESIDENT COLMAN: Well, it would vanish if that situation materialised.

PN128

MS SAUNDERS: If we had that opportunity at first instance, yes. It's the Carlson and Holcim point again. In circumstances where we obviously would have conducted our case substantially differently, it is contrary to principle contrary to public interest, contrary to the certainty of Commission decision-making to grant permission to appeal.

PN129

DEPUTY PRESIDENT COLMAN: Just going back to that discussion we had before, or the point I was making about section 237, if we can just look at it for a moment. 237(1) says:

PN130

The Commission may make a majority support determination if:

PN131

(a) an application for the determination has been made; and

PN132

(b) the Commission is satisfied of the following matters in (2).

PN133

As I mentioned before, there's no element of satisfaction in relation to (a). There must have been an application under 236 and that application is one which has been brought by a bargaining representative, so clearly it's a jurisdictional fact. It's not the case that the Act says well, if it appears to the Commission, do you see what I mean?

PN134

MS SAUNDERS: No, I entirely - - -

PN135

DEPUTY PRESIDENT COLMAN: In which case, I would have more sympathy with the argument that well, the Full Bench shouldn't now be entertaining arguments that weren't run below because the Commissioner looked at the question, was satisfied there was a prima facie case.

PN136

MS SAUNDERS: We are in furious agreement, Deputy President. I don't suggest that it's a state of satisfaction that must be formed. Either there's an application or not. However, it's more nuanced - I might contrast it to - the precise section number escapes me, but the situation under the Registered Organisations Act dealing with amendments to registered organisation rules. One of the matters the Commission must be satisfied of is that there's no organisation to which the persons who would be covered by the new rule could more conveniently belong and more effectively represent. There's some filtering there, but the substantial point is it requires the Commission to form a view as to rules coverage. That's been found in re AWU which is the bundle that I provided earlier, to not be reviewable.

PN137

This is different. If the point had been raised below, it would be entirely open to conduct an appeal on that basis in the same way that an appeal from an enterprise agreement dispute, the question is simply whether the interpretation was correct. It's a necessary fact in that sense. However, that alone, when it's not agitated below and there's - even in the context of a jurisdictional issue where there's mixed questions of fact and law, it's not open for a party to reagitate it at first instance.

PN138

It would be different, and your Honour would be entirely correct if we were undertaking a judicial review exercise as opposed to an appellate consideration. Those authorities that my friend has referred to including the immigration decision are about that. It's judicial review of an administrative decision-making task. We're not there; this is an appellate exercise and we are confined by the approach in Hilton and Holcim that the parties are bound by their conduct at first instance.

PN139

DEPUTY PRESIDENT COLMAN: But part of our appellate jurisdiction requires us to correct jurisdictional error, as well as House v King error.

PN140

MS SAUNDERS: Yes.

PN141

DEPUTY PRESIDENT COLMAN: So, if we do have a concern about jurisdiction - - -

PN142

MS SAUNDERS: I suppose what I'm saying is that your Honour's and Commissioner do not have a proper basis to develop that concern. That it's been agitated, it's not appropriate to allow the argument as to why there was jurisdictional error in the circumstances of this matter. It leads to - opening that door opens the range of other doors that I've indicated.

PN143

Alternatively, the matter should be, without the Bench forming a view one way or the other, on the AMWU's rules coverage. Alternatively, if the Bench is satisfied that the point should be reagitated and reheard, it is a matter that requires further evidence. It is a matter that requires in particular, witness evidence, as I've said, it must be remitted. It cannot be just dealt with on the papers, as my friend suggests.

PN144

DEPUTY PRESIDENT COLMAN: Well, you might want to lead evidence that one of the employees in question actually - - -

PN145

MS SAUNDERS: Is trade qualified for example.

PN146

DEPUTY PRESIDENT COLMAN: For example. All right, otherwise it falls within the scope of the rules.

PN147

MS SAUNDERS: Precisely. I should say there's some criticism that I haven't made an application to lead that evidence on this appeal, that I'm not turning up with a list of my witnesses, the volumes of the AMWU's rules, the historical correspondence to the Registrar. It's a bit of a - to do that, I would of course immediately concede permission to appeal. If I asked the Bench to take further evidence into account on appeal, it would be necessary for permission to appeal to be granted. It is a profoundly unfair position to put a respondent in an appeal in. The point - - -

PN148

VICE PRESIDENT CATANZARITI: Is your point is, that the Bench could not without a further hearing, form a view as to whether the rules can or cannot cover.

PN149

MS SAUNDERS: Yes.

PN150

VICE PRESIDENT CATANZARITI: Which again, it just opens up the question of whether the decision at first instance is safe or unsafe or whether it should be quashed, and then what follows from that? The alternative point is that you say we can't quash the decision because it wasn't raised at first instance and that's where I'm struggling on a jurisdictional issue.

PN151

MS SAUNDERS: Sorry, yes it's not that your Honour is necessarily - - -

PN152

VICE PRESIDENT CATANZARITI: If it is a jurisdictional issue, a Full Bench would focus on whether a matter - there's plenty of decisions on Full Benches here where they say the point wasn't actually run in a particular way but it is a jurisdictional error and needs to be fixed up.

PN153

MS SAUNDERS: No, of course, I accept that. And it's not so much that your Honour's and Commissioner can't; the point is that you shouldn't in the circumstances of this case. Of course there are situations where it's appropriate to agitate new arguments on appeal. Interpretation disputes where it's simply a question of where an appeal on a 739 application can look radically different to the case below. But it's not, because new witnesses are popped up or entirely new issues are being raised. It is a matter of discretion and that discretion shouldn't be exercised in circumstances where parties were legally represented below.

PN154

It's not an immediate and unavoidable jurisdictional error. The argument would go one of two ways, but not necessarily in my friend's favour.

PN155

VICE PRESIDENT CATANZARITI: Well, that's what the evidence ultimately shows, but what he's raising is that there's a question of jurisdiction which has not been addressed.

PN156

MS SAUNDERS: It hasn't been addressed in the way ventilated. Look, the submission is this. The appeal should, as a matter of principle, as a matter of public interest not be allowed because of the consequences that follow. The derogation from principle, the opportunity for everyone to keep jurisdictional points like this in their back pocket, in every kind of application before the Commission. In the absence of either conceded or entirely apparent possible to be determined on the material before the Commission jurisdictional error, that's as high as I put it.

PN157

I don't intend to speak to the further grounds of appeal. I rely on my written submissions. I would however like to briefly touch on the Simeco/John Holland point raised by the Bench on the last occasion. Again, your Honours and Commissioner have read the submissions of both parties. We broadly agree and we broadly agree unusually in an appeal that Lee C stated an incorrect approach and in fact took it, in respect of both determinations in both the sales representative petition determination and the mechanics dismissal. Lee C took into account the views of the actual employees employed at the time who would be covered by the agreement outside of their desire to bargain.

PN158

I apologise, I appear to have misunderstood my friend's submissions. It's an alternative argument; it's not conceded. Then my submission alone is that Lee C has manifestly done this. Done this in both aspects of the decision. There is a difference between us as to whether it matters. It's not enough to simply state error, nor necessarily engage in it to enliven an appeal. It has to have some possible impact on the decision and I've set out why.

PN159

But in those circumstances, it would be entirely open to the Bench on the basis of that approach alone, quash the decision in its entirety. Remit it to a member of the Bench and other members of the Commission - I don't have a view, and have the entirety of the matter determined afresh, giving the parties the opportunity to launch whatever jurisdictional objection they so choose and avoid the difficulties that are presented by my friend's appeal.

PN160

Unless I can assist further, those are the AMWU's submissions.

PN161

VICE PRESIDENT CATANZARITI: Thank you. Any reply Mr Pollock?

PN162

MR POLLOCK: Just a couple of very short points and I note that despite the indications you have we were going to proceed, it looks like we will deal with each appeal sequentially. But I'll just deal with these very brief points and then my learned friend can commence her submissions on her appeal.

PN163

My learned friend averted to the insufficiency of the evidence concerning the construction of the rules and put some meat on the bones of that which she would have put before the Commission had that point been in issue. I think my learned friend drew attention to some of the - unless it's referred to tangentially in the re AMWU case and what was said to be, I think I'm paraphrasing, a hundred years' worth of files of this Commission and so on.

PN164

There were just two points to make there. Firstly, again re AMWU makes clear as to when the relevant part of rule 1E was inserted. That was in 2003, as I recall. So, we're not talking about a hundred years' worth of coverage. We may be talking about a hundred years' worth or erroneous interpretation or a hundred years' worth of employer consent to allow the AMWU and its predecessors to wrongly represent our employees and to wrongly charge union dues to those union employees.

PN165

But there is, prior to that point in time, there is nothing and there could not have been anything, based on the fact of this application having been brought and the submissions made to the Commission in that matter and the substance of the undertakings given to the Commission, there cannot be anything to suggest that prior to that point in time there was legitimate coverage of those employees. That's the first point.

PN166

The second point, if there's an insufficiency in that evidence again, at the risk of labouring this issue, that's at the feet of my learned friend. We need not have put any evidentiary case below. It was my learned friend, as you put it out Deputy President, it was a jurisdictional fact which was my learned friend's obligation to satisfy. If there is an insufficiency of evidence below, as my learned friend conceded at paragraph 7 of her outline, that's fatal to her application below. That's not an issue for my client.

PN167

The second issue I wanted to raise, my learned friend refers to or draws comparisons to section 739 disputes and the risk of a party keeping in the back pocket a jurisdictional point around whether or not steps in a dispute resolution procedure have been met. Whether or not that might be a risk in a case like that is neither here nor there. A section 739 dispute is an inter partes dispute. That is, it is a dispute brought before the Commission to resolve a dispute between identified participants.

PN168

That is a very different situation here to an application brought under section 236 and 237 which is not an inter partes dispute where the task of satisfying the Commission that certain criteria and jurisdictional facts are established. It rests solely with the applicant.

PN169

The third point I wanted to raise, my learned friend suggests that there was some ambiguity or uncertainty in the evidence below as to what the sales employees do. That's not in fact the case. Insofar as there was uncertainty or ambiguity, and I think what my learned friend drew attention to, was some issues around the detailers and some of the other employees who were involved on the mechanical side, which is a different application.

PN170

The evidence as to what the sales employees in fact do, was uncontroversial below. This again, you've seen in the statement of Mr Lee at paragraph 6 and at paragraphs in the transcript 89 to 138, 178 to 180 and 258 to 279. The evidence of Ms Travers at paragraphs 4 to 14 and the AMWU's outline below at 23 and 23(c) in particular.

PN171

Now, a fair reading of the evidence in the submissions below was not that there was any real distinction as to what the sales employees did. There was disagreement as to whether or not that group was organisationally and operationally and geographically distinct and whether or not it was appropriate that a determination be made. But certainly, on my review of the materials below there is no real evidentiary fight as to whether or not these people sell and new and used vehicles. There's certainly not any relevant difference in opinion on the evidence that would inform whether or not these employees would fall within the scope of rule 180.

PN172

DEPUTY PRESIDENT COLMAN: But now that the point's been raised, I mean in terms of the question of what should happen if we quash the decision.

PN173

MR POLLOCK: Yes.

PN174

DEPUTY PRESIDENT COLMAN: Isn't the appropriate course to remit it, because otherwise Ms Saunders hasn't had an opportunity - or the AMWU hasn't had an opportunity to put its case through the prism of the jurisdictional objection.

PN175

MR POLLOCK: Deputy President, look there's force in that. Obviously, my primary submission and my instructions are that the matter is capable of being dealt with on the papers, as it were, in light of re AMWU and the concessions and the undertakings given there. That being said, I certainly hadn't intended to criticise my learned friend for not putting on an application for fresh evidence, which is more an illustration of perhaps a questioning of the reflexive submission of we would have run the case differently.

PN176

But I mean no criticism of my learned friend for not having done it. In those circumstances and particularly given the fact that the point wasn't taken below, I can see the force in the observations that you make, Deputy President, that a remittal or a referral under 607(3) would be an appropriate course, rather than simply just dealing with on papers. I think it's open to be done and I formally put the submission, but I do accept the force of that observation.

PN177

That's all I wish to say in reply. I think that deals with the Motors Tas appeal. I take it my learned friend will proceed on her substantive submission from the AMWU.

PN178

MS SAUNDERS: Yes, just to clarify the confusion about the role of sales workers and the role of detailers is at PN122 to 133 for example. Well, I don't need to take your Honour's and Commissioner to it now.

PN179

I turn to the AMWU's appeal. I dealt with this in short compass in my earlier submissions, possibly not correct to call it the primary submissions. It is apparent, and as I've set out in the submissions that I filed in respect of the Simeco point, it is apparent that Lee C has taken into account the views of employees, the actual views of employees who are not covered by, on his construction, the scope of the proposed agreement.

PN180

It is the same error that is condemned in Aldi and John Holland. It is an irrelevant consideration. It is of course not permissible to enquire in extensive detail as to the weight the Commissioner gave that, but it is clearly something that had some impact on the decision to dismiss the application. That decision is therefore attended by error. It should properly be quashed and remitted for rehearing.

PN181

I would seek to have that done by a single member. Given the intermingling of issues in this appeal, it would seem convenient to deal with everything as a job lot. That's all I wish to say on the Simeco point.

PN182

As to the grounds for appeal that I've in fact actually advanced in the notice of appeal, I rely on the written submissions. The short point is essentially that the Commissioner misinterpreted the scope of the proposed agreement by taking too strict an approach to the terminology used by the AMWU. It's not unusual in matters like this for the applicant party to not have a full grasp on the precise way roles are described by the organisation within it.

PN183

People often - as it shows in this evidence, people refer to themselves as part of a mechanical group, but are listed as detailers, car washers and there was confusion on the employer's side as who fell within each category. The intent of the AMWU's petition was clear. It was to cover that mechanical group, which it appears from Lee C's comment, he would or would likely have found to be fairly chosen and there's no real challenge to that being so.

PN184

DEPUTY PRESIDENT COLMAN: Sorry to interrupt, do you say Lee C established what the actual intent and scope was in the proceeding?

PN185

MS SAUNDERS: If I can take you to the decision?

PN186

DEPUTY PRESIDENT COLMAN: Yes thanks.

PN187

MS SAUNDERS: I'm just finding it. Paragraph 51 - I'm sorry, paragraph 47.

PN188

I accept that Mr Lee thought that specifying the group in this way would cover all employees working on and cleaning the vehicles, which was his objective.

PN189

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PN190

But the reality is that it does not because of the words that he used, the way that it's described. There's a difficulty with using a strict textual approach to a scope clause when you don't in fact have the text of a scope clause. Where the agreement has not been drafted that intent, the group that's been tried to be called is the relevant consideration. That's what should have been taken into account when determining whether the group was fairly chosen.

PN191

In finding that the employees who would be covered by the proposed enterprise agreement was narrower than that, the Commissioner mistook the facts and fell into error in that sense.

PN192

DEPUTY PRESIDENT COLMAN: I see. Do we know what the employer thought the intended scope was?

PN193

MS SAUNDERS: The transcript - I think I can say was not the clearest exercise in the world. The transcript reveals there's a discussion at the end and a lot of it is about the numbers of who falls into which category. Probably the best identification of who the employer thinks is in, is in the appeal book at page - it starts at page 149 and then 151 is the relevant bit, the Burnie Parts and Burnie Services. This list is where the employer identifies who it thinks are in the group. That's put on transcript by Mr Swain the legal representative for Motors Tas of that broader compass of employees.

PN194

It's put in the context of wanting to have a larger number in the hope that there won't be enough signatures on the petition, but nevertheless, it reflects the employer's legitimate understanding of the scope of the group, which is the broader group that we press for.

PN195

DEPUTY PRESIDENT COLMAN: You say there's a common understanding revealed by the exchange of materials?

PN196

MS SAUNDERS: Yes - no, no, no sorry, I don't quite put it quite like that. All I say is that it is unclear. It's not assisted - the Commissioner wasn't particularly - it's not surprising the AMWU didn't have an intimate knowledge of the organisational structure of Motors Tas. Mr Lee, witness Mr Lee I should say, is quite up front about this. He says look, I tried to - in his evidence I tried, but I appeared to have failed. I don't know the details.

PN197

DEPUTY PRESIDENT COLMAN: I understand what you say about that and by definition the fact that you're seeking an MSD presumably means you haven't been bargaining before, so you don't know the workplace particularly well. You put your application forward in the terms that you think make sense and then it turns out that perhaps that doesn't fit within the parlance or the - - -

PN198

MS SAUNDERS: Precisely, and the task is to identify what's actually proposed, not limited to perhaps the misuse of language in an application form. It's what was intended and it's what's described at 47. People who are working on and cleaning the vehicles is the correct consideration, the correct factual finding as to the employees who at time will be covered. By considering a narrower group it's a mistake of fact, it is error justifying an appeal.

PN199

DEPUTY PRESIDENT COLMAN: All right, but the employer's list you say was the correct list? You're happy with the scope of the list that was put forward by the employer.

PN200

MS SAUNDERS: Yes.

PN201

DEPUTY PRESIDENT COLMAN: So, you say the Commissioner's mistake was then not to look at the substance of the materials but to rely on the wording of the application?

PN202

MS SAUNDERS: Not to look at the substance of - to rely on the wording of the application. The list assists but is not determinative. It simply illustrates that there's a broad identifiable group. The error is relying on that strict wording and excluding the car detailers that were intended but were not caught by the wording, to be covered. That comes out of 50 and 51 of the decision.

PN203

That matter could be determined on the papers - sorry, determined on the material before the Full Bench. That's what's put in my submission. However, it would seem if the Bench is minded to remit part of the decision for redetermination it would seem inconsistent to deal with it part and parcel. So we don't have strong views on how the appeal, if leave is granted, is to be disposed of.

PN204

Given that the consideration of fairly chosen would require a fresh value judgement of that broader group, it may be more appropriate in fact to remit to that aspect of the decision, if your Honours and Commissioner are minded to grant permission to appeal.

PN205

Unless there's anything further, those are the AMWU's submissions.

PN206

VICE PRESIDENT CATANZARITI: Thank you. Mr Pollock.

PN207

MR POLLOCK: I don't propose to address orally in any detail the Simeco issue that my learned friend raises. It obviously is not a ground of appeal in my learned friend's appeal, but insofar as it arose in the context of what Hamilton DP put before the parties last time. Of course, my learned friend suggests that the actual views were taken into account and that infected the conclusion that was reached.

PN208

I think at paragraphs 13 and 14 of my outline on Simeco, I set out the reasons why firstly, that it's certainly not arguable that the Commissioner was in fact applying an impermissible Simeco consideration, but rather my submission was applying that part of Simeco which is permissible which is to consider the consequences of the choice, that is, the consideration of the group as a whole rather than the actual views of employees, employed at the time of those included and those excluded.

PN209

I've set out in the written submissions why that follows form a reading as a whole, of the decision, I don't repeat it. But in any event, even if and this is at paragraphs 14 and following of the outline, even if one said that the Commissioner impermissibly took into account the actual views of employees employed at the time at paragraph 50 of the decision, there is nothing to suggest in what follows that taking that into account ultimately influenced the conclusion on fairly chosen.

PN210

The relevant paragraph at 51 which records the conclusion on fairly chosen sets out those findings which influenced the ultimate finding of fairly chosen and the passing observation at paragraph 50 does not appear again in 51 as one of those factors. So, in my submission, even if it is said what was taken into account at paragraph 50 was impermissible, I say it's not on the basis of what I set out at 13 of my outline. In any event, it wasn't something which ultimately weighed in the balance on the fairly chosen finding. But I need not say anything further. I rely on my submissions there.

PN211

As to the AMWU's subsequent appeal, really there is one ground. What my learned friend seeks to do is really to move the goal posts for the group in question. In my submission, that is simply an impermissible approach. The scope that fell for assessment under the fairly chosen test here was the scope that was put to the employees for their approval by way of the NSD petition and that which was lodged with the Commission with the NSD application.

PN212

Anything other than that scope, whether or not it was in the mind of Mr Lee when he went down there to take the petition. Whether it was in the mind of anyone else, is not to the point. Anything other than that scope in truth, is a different proposed enterprise agreement as that is understood in MSS Security. We know that there can be any number of different proposed enterprise agreements of differing scopes.

PN213

Now, I set out at paragraphs 7 to 9 of my responsive outline to the AMWU's appeal. The reasons why that conclusion necessarily follows from section 237 or the text at section 237 of the Act.

PN214

DEPUTY PRESIDENT COLMAN: Do you say the employees who signed the petition thought they were signing a petition referrable to a different scope?

PN215

MR POLLOCK: Yes, well no. They signed a petition which reflected the application and which reflected that which the primary Commissioner found. What was in the mind of Mr Lee may have been something different. The reality is that the petition that was put to those employees had a scope at the top of it. I think it is in the materials. That is, it is the mechanics - I agree to this -

PN216

I want to bargain for an enterprise agreement with Motors Tas Pty Ltd. I agree to this petition being provided to the Fair Work Commission to prove that involved mechanics, mechanical apprentices and detailers who are employed at Motors Tas Pty Ltd site at -

PN217

Variously, this is the Devonport one, but there is also the - no, I'm sorry, it is simply just the Devonport site, just the single determination. Those words are in bold, mechanics, mechanical apprentices and detailers.

PN218

DEPUTY PRESIDENT COLMAN: What was the problem again? Now did that not fit the reality or the intention.

PN219

MR POLLOCK: There were other - - -

PN220

MS SAUNDERS: Car washers.

PN221

MR POLLOCK: It was not organisationally or operationally distinct. There were other employees who were involved in the process of working on vehicles. The primary Commissioner couldn't be satisfied that that grouping was organisationally distinct. He ultimately found that that that grouping was not fairly chosen.

PN222

Now, my learned friend's submission, proceeds on a footing that it was in error for the primary Commissioner to have construed the group as mechanics - those that I read a moment ago - mechanical apprentices and detailers. My learned friend urges a broader approach of what was in the mind of Mr Lee.

PN223

DEPUTY PRESIDENT COLMAN: Would you agree though, if everybody knew - despite infelicitous wording, if everybody knew in substance that the group was different to the one - how it was technically described, that wouldn't present a problem. You're saying that's not what happened here.

PN224

MR POLLOCK: There's no evidence to suggest that there was some other common understanding. My learned friend seems to be suggesting that there is. There would need to be evidence of every individual employee who signed that petition that in fact, contrary to what was said in the top of the petition, that they understood something different. There is no thing approaching.

PN225

DEPUTY PRESIDENT COLMAN: Or if the reference, for example to mechanical - although there are no mechanics, for some historical or site specific reason actually did include and was understood to include car washers, or whatever it is, for example. Do you see what I mean? I'm trying to distinguish between perhaps an infelicitous description and what actually the substance was and whether there was a common understanding of the substance, notwithstanding an infelicitous description.

PN226

MR POLLOCK: Yes, well look - - -

PN227

DEPUTY PRESIDENT COLMAN: You're saying - I think that's what the union says happened, but you say that's not what happened.

PN228

MR POLLOCK: In a given case, perhaps if the evidence remarkably rose to the level that there was evidence from every person who signed that petition that there was a common understanding, notwithstanding the text of the petition and notwithstanding the text of the application, I might have to at least see the force in that point, albeit that section 237 doesn't give a great degree of leeway. That is, the application is for the determination - the determination must be in relation to a proposed single enterprise agreement.

PN229

So, the application must reflect the determination and in turn, must reflect the civil enterprise agreement proposed. Now, the only sources of evidence that we have - my learned friend is right. There is no agreement on foot at this stge. The only evidence that we have is that which was put to the employees by way of a petition and that which was put by way of the application. Anything that arose below from Mr Lee in terms of what he might have had in mind, rises nowhere close to the kind of evidence of a mutual subjective intention of all of the people involved that it should mean something different.

PN230

DEPUTY PRESIDENT COLMAN: Sorry, I'm just curious. The employer's list of employees, did that have a descriptor, or did it just respond to - - -

PN231

MR POLLOCK: As I understand it, it was simply responsive to the usual request of the Commission to provide the list. I would need to take on notice that question of whether the precise request that was put to Motors Tas below was expressly confined in the request for mechanics, mechanical apprentices and detailers, or whether it was the group referred to in the application, for example, which would lead to the same.

PN232

DEPUTY PRESIDENT COLMAN: I'm just wondering how the parties proceeded. I mean there was an application and a petition that referred to - that had descriptors that didn't quite fit the reality, I think, everyone agrees. But then the employer put in its list of employees falling within that description. Anyway, you say that there wasn't to the extent the application was inaccurate or in some way, there wasn't a clear correction of that.

PN233

MR POLLOCK: Correct, there was no amended application, there was no fresh petition reflecting the - to the extent that there was a changed subjective view, to the extent that Mr Lee, upon going down to the site discovered that his initial scope would be unlikely to be fairly chosen, for example, in my submission it was incumbent on Mr Lee to reframe his petition and file a fresh application.

PN234

Because there is nothing - I mean there is nothing to suggest that these employees gave their informed consent to bargain for an agreement covering other employees who might work on and clean the vehicles. All they have consent to is an agreement covering mechanics, mechanical apprentices and detailers. How the Commission can be satisfied that a majority of employees want to bargain for an agreement of anything other than that scope, based on that petition hasn't been confronted squarely by my learned friend and I must say, I struggle to see how, based on the evidence that the Commission could properly reach that state of satisfaction.

PN235

VICE PRESIDENT CATANZARITI: You say the appropriate path of the appeal by the AMWU is to dismiss the appeal, but note there's nothing stopping them starting again correctly?

PN236

MR POLLOCK: Correct, that's exactly right.

PN237

COMMISSIONER WILSON: They could use the same petition, presumably.

PN238

DEPUTY PRESIDENT COLMAN: Well, no, they had to correct the petition.

PN239

MR POLLOCK: There would be an issue with the petition both arguably from the fairly chosen point, but also just from a temporal perspective, noting of course the Commission has some discretion as to what it looks to, but I would have thought the correct approach would be to seek a fresh petition and file a fresh application.

PN240

But nothing of course - the determination of the issue doesn't bar the AMWU for all time for seeking an NSD at those sites for mechanics or some grouping of those employees which they're entitled to represent. That's all I wish to say in response to that matter.

PN241

VICE PRESIDENT CATANZARITI: Yes Ms Saunders.

PN242

MS SAUNDERS: Thank you. Can I take your Honours and Commissioner to tab 7 of the appeal book? It's the statement of Mr Lee. Starting at paragraph 5, it sets out his understanding of the two groups, the mechanical group, the sales group. Over the page at paragraph 11, evidence of him explaining what we were seeking. It can be inferred that was agreements covering the mechanical group and the sales group. It's not the case that these employees simply signed a petition with that, as your Honour Coleman DP puts it in felicitous language. It's a broader discussion. Everyone knows what they're attempting to achieve. That evidence is there.

PN243

My friend's point about employees consenting to bargain only for mechanics, apprentices, detailers, falls away in the face of that. It was agitated slightly, and I believe those proceedings at first instance and the Commissioner did not the petition is drafted more broadly than that. There is nothing ambiguous in the sentence "I, individually wish to bargain for an enterprise agreement with Motors Tas." That's not conditional on scope. The reference to scope is consent to it being provided to the Commission in certain circumstances. There's still evidence of a generalised desire to bargain, whoever with.

PN244

A mind point about the age of the petition. The Commission would need some evidence that employees either had changed their minds or there were circumstances that would make it likely that they might before that petition, simply through the effluxion of time falls away, but it's not something that really needs to be dealt with today.

PN245

The point about the AMWU being able to have another crack at this, and indeed, the sales petitions if they're quashed, is correct, but it doesn't rob the appeal of utility. It is still a significant point, the correct approach to be taken to assessing the scope of a proposed agreement whether the strict approach of what's on the application should be favoured, or whether we're looking more at the intent of the applying party. We take an approach that recognises the difficulties that applicants are likely to face in precisely identifying the group that focusses on intent rather than precision.

PN246

DEPUTY PRESIDENT COLMAN: Can I just ask you when you say intent, do you mean intent as objectively understood by the employees on the petition and also the employer? I mean, objectively manifested intent it would have to be presumably, wouldn't it?

PN247

MS SAUNDERS: I think it has to be intent of the applicant, and I appreciate this is a divergence from the proper approach to interpretation of enterprise agreements when again we're not talking about a scope, we're talking about what, as a question of fact, the actual proposal is. Here, correctly understood, the proposal was for an agreement covering the mechanical group. To the extent that Lee C found otherwise and proceeded on that basis, the decision is affected by error.

PN248

Rather than taking your Honours and Commissioner up and down through the appeal book, I might just say the way that these roles are described in the business, as it emerges on the evidence, there's a multiplicity of them. In my submissions on the appeal, it's set out at paragraph 8, the various names that are provided to mechanics, technicians, tradespersons, accessories fitters. Lee C then finds that accessory fitters are not included within the word 'mechanic'.

PN249

Then you have detailers, car cleaners, pre-delivery technicians and car washers all of which are a form it appears of detailers. The references are in the submissions rather than going through.

PN250

Can I take your Honours and Commissioner back to the decision to address the Simeco point that my friend raised at paragraph 50? It is clear on the evidence of Mr Lee, that some of the car detailers want to be included in bargaining. That is a reference to the actual car dealers that Mr Lee has spoken to who have expressed their actual desires. This is a factor I have taken into consideration. It cannot be excised from the broader findings as to fairly chosen. The fact that we can't determine the precise weight the Commissioner gave it, is of no significance. That kind of enquiry is, as I've said out of respect to my friend's appeal, improper on appeal. It's there; it infects the decision. It should be quashed.

PN251

The final point put against me is that - returning to the AMWU's substantive appeal is that it's an attempt to move the goal posts to propose a new scope. There are two things I wish to say about that. Firstly, it misunderstands the point. I'm not saying that the proposed agreement should have been different, I'm saying that the proposal was in fact, as a question of fact, different to what the Commissioner found. That's the error; it's the same proposition throughout.

PN252

Secondly, it's very linked to the concerns about agitating a complicated - at least partially factual question, a new on appeal. It's the same issue that arises in respect of the rules question that my friend now agitates. If they can do, I can. In reality, neither of us should engage in that kind of activity and the Bench should not make a decision permitting it to be so.

PN253

Unless there's anything further, those are the AMWU's submissions.

PN254

VICE PRESIDENT CATANZARITI: Are we all done?

PN255

The decision is reserved. The Commission is adjourned.

ADJOURNED INDEFINITELY [11.22 AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #1 AMWU'S RULES............................................................................ PN19

Fair Work Commission Transcripts

C2018/ 1607 , Transcript of Proceedings [2018] FWCTrans 304 (13 August 2018)