AG810160 PR947076
AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.45 appeal against decision
PR944269 issued by Commissioner Smith on 5 March 2004
and decision PR935091 and order PR935092 issued
by Commissioner Smith on 22 July 2003
CoINVEST Limited
(C2004/2243)
VISIONSTREAM CERTIFIED AGREEMENT 2001
(ODN AG2001/4525)
[AG810160 PR908413]
s.170MD variation of certified agreement
Visionstream Pty Ltd
(AG2003/6028)
Industries not otherwise assigned | |
VICE PRESIDENT ROSS |
|
DEPUTY PRESIDENT IVES |
|
COMMISSIONER BLAIR |
MELBOURNE, 25 MAY 2004 |
Appeal - variation of agreement under s.170MD(6) - ambiguity or uncertainty - the identification of an ambiguity or uncertainty requires the determination of a jurisdictional fact - prima facie case insufficient - leave granted - appeal upheld - portion of order quashed - remitted to member at first instance.
DECISION
[1] This decision deals with two appeals by CoINVEST Limited (the appellant) pursuant to s.45 of the Workplace Relations Act 1996 (Cth) (the WR Act).
[2] The first appeal is against the ex tempore decision of Commissioner Smith of 18 July 2003, published on 22 July 2003,1 to vary the Visionstream Certified Agreement 2001 (the Agreement) in the terms set out in the Commissioner's order dated 22 July 2003.2 The second appeal is against the decision of Commissioner Smith of 25 February 2004, published on 5 March 2004,3 in which the Commissioner, among other things, refused to hear and determine the application of CoINVEST Limited for leave to intervene in the application to vary the Agreement.
[3] At the conclusion of the proceedings on 19 May 2004 we announced our decision in respect of the first appeal. We said that we were satisfied that the appellant was a "person aggrieved" within the meaning of s.45(3)(d) and granted the appellant's application to extend the time for lodging the appeal. We went on to grant leave to appeal and uphold the appeal in respect of the variation of clause 15(iii) of the Agreement. Visionstream's s.170MD(6) application was remitted to Commissioner Smith for further hearing. We also indicated that we would publish our reasons for decision in due course. We now do so.
[4] We propose to briefly set out the background to the decisions subject to appeal before turning to the arguments advanced on appeal.
[5] The Agreement was certified under Division 2 of Part VIB of the WR Act by Commissioner Blair on 3 September 2001 with a nominal expiry date of 2 January 2004.
[6] The parties to the Agreement are Visionstream Pty Ltd (Visionstream) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU).
[7] On 10 July 2003 Visionstream applied to the Commission for an order to vary the Agreement pursuant to s.170MD(6) of the WR Act to remove ambiguity and uncertainty. The variation sought was in the following terms:
"1. By deleting the second sentence in the first paragraph of clause 5 and inserting in lieu thereof the following:
"However, when employees conduct telecommunications work internal to buildings on construction sites at which there is a current Site Agreement that is recognised by the employer(s) on that site, clause 13(iv) below will apply."
2. By deleting the second sentence in the first paragraph of clause 13(iv) and inserting in lieu thereof the following:
"Where it is agreed that the conditions contained in the relevant Site Agreement are superior, on balance, to the conditions contained in this Agreement, Visionstream will provide its employees with an allowance equivalent to the agreed difference between the relevant wages and allowances provided for in this Agreement and those provided by the relevant Site Agreement."
3. By deleting clause 15(iii) and inserting in lieu thereof the following:
"(iii) All employees covered by this Agreement will be entitled to long service leave of 13 weeks following completion of 10 years of continuous service and a further pro rata amount for each completed month from when their last entitlement to long service leave arose. Part-time employees are entitled to long service leave on a pro rata basis. Long service leave is to be taken as agreed between the Company and the employees having regard to the needs of the business. This clause operates to the exclusion of any State law in relation to long service leave or which provides any benefits in the nature of, or in respect to, long service leave." "
[8] We note here that at the time the application to vary was made clause 15(iii) was in the following terms:
"Long Service Leave
Visionstream will make provision for 13 weeks long service leave following completion of 10 years of continuous service for all employees."
[9] The application was first heard by Commissioner Smith on 18 July 2003. At the conclusion of the hearing the Commissioner made an ex tempore decision4 granting the application. The Commissioner's decision is brief and it is convenient to set it out in full:
"[1] The following decision, now edited, was issued during proceedings conducted on 18 July 2003.
[2] I am in a position to announce a decision in this matter. This is an application to vary the Visionstream Certified Agreement 2001 to remove ambiguity and uncertainty. The agreement has a nominal expiry date of 2 January 2004.
[3] It is the position of Visionstream Pty Ltd ("Visionstream") that the agreement, in relation to clauses 5, 13(iv) and 15(iii), is uncertain in its application. In relation to clause 15(iii), the matter has some urgency as a consequence of serious legal proceedings being foreshadowed by CoINVEST Limited.
[4] Mr Absolom, for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia ("CEPU"), is unable to agree to the application, as the union has not been able to fully consider the matter. Mr Absolom seeks an adjournment of the matter. In ordinary circumstances, it would be very important to hear the considered views of the other party to the agreement. An agreement, unlike an award, is the creation of the parties and the Commission's ability to determine the terms of the agreement is highly regulated by the provisions of the Workplace Relations Act 1996 ("the Act"). However, the foreshadowed proceeding by CoINVEST Limited places a sense of urgency on the matter where consideration now needs to be given to the application made by Visionstream.
[5] Having heard Mr Butler, on behalf of Visionstream, I am satisfied there is uncertainty in relation to the operation of clause 5 and clause 13(iv). Indeed, Mr Absolom says that the area of consultation that needs to be undertaken does not go to the operation of those clauses. In relation to clause 15(iii), I am satisfied that Mr Butler has established a prima facie case for this application to be granted.
[6] The question is whether or not I should vary the agreement in the absence of substantive merit submissions from the CEPU. Given the particular circumstances of this case in relation to CoINVEST, and the difficulty confronting the CEPU in consulting with its members, I have decided that the best course is to vary the agreement in the manner sought by Visionstream. I do so against a specific reservation. That reservation is that the CEPU can seek a relisting of this matter should it wish to put submissions.
[7] My decision in this matter has been taken against the background of the urgency apparent to me, and will not prejudice any further submissions the CEPU would wish to make or, indeed, any further submissions that might be sought to be made by Visionstream. The variation will occur from the date of the original certification and, again, leave is granted to the CEPU should they wish to have the matter relisted."
[10] An order varying the Agreement in the terms sought by Visionstream was issued on 22 July 2003.5
[11] Co-INVEST were not represented at that hearing.
[12] The CEPU subsequently advised Commissioner Smith, by letter dated 8 August 2003, that it wished "to exercise the leave granted by the Commission on 18 July 2003 and seek the matter be re-opened to allow the CEPU and any other interested party to make submissions."6
[13] Co-INVEST then wrote to Commissioner Smith on 4 September 2003 seeking leave to intervene in the hearing.
[14] CoINVEST is a company limited by guarantee which administers the Construction Industry Long Service Leave Scheme ("the CILSL Scheme") and which is the trustee of the Construction Industry Long Service Leave Fund ("the CILSL Fund"), administered pursuant to the Construction Industry Long Service Leave Act 1997 (Vic).
[15] A portable long service leave scheme for Victorian construction industry workers has existed in one form or another since 1977. These portable industry schemes have been established in order to enable workers in the transient construction industry to access long service leave benefits.
[16] CoINVEST administers the CILSL Scheme in Victoria. The CILSL Scheme is comprised of the:
[17] The CILSL Fund is established by the Trust Deed. The Trust Deed authorises the making of the Rules to regulate the administration of the Fund.
[18] The matter was relisted for hearing on 29 September 2003 on the application of the CEPU but adjourned until 14 October 2003. That hearing did not proceed and the matter was eventually heard on 25 February 2004.
[19] On 24 February 2004 the CEPU wrote to Commissioner Smith in the following terms:
"Please be advised that the CEPU does not wish to make any submissions in this matter that is listed for hearing tomorrow. We have no objection to third parties making submissions."
[20] On 24 February 2004 Mr Butler, representing Visionstream, wrote to Commissioner Smith in the following terms:
"I received a fax this morning of a copy of the ETU's letter to you advising you that the CEPU "does not wish to make any submissions ... tomorrow".
I spoke with Geoff Boronstein shortly after I received that fax and asked what those words meant. Geoff Boronstein advised me that the CEPU are withdrawing from the matter. Geoff further advised me that the CEPU:
While all this is news to Visionstream, Geoff Boronstein advised me today that the CEPU had advised the Commission three months ago that "they were out of it".
Given the CEPU's position, and that it is apparently one they have held for some time, we submit that the relisting currently scheduled for tomorrow and the next day be cancelled."
[21] During the course of the proceedings on 25 February 2004 Visionstream contended that the Commissioner was functus officio in respect of the application to vary the Agreement as those proceedings had concluded once it became apparent that the CEPU did not wish to put any further submissions. CoINVEST argued to the contrary and submitted that the application to vary had not been dealt with to finality and that the Commission should determine its application for intervention.
[22] At the conclusion of the proceedings on that day the Commissioner issued an ex tempore decision7, in the following terms:
"[1] The following decision, now edited, was issued during proceedings conducted on 25 February 2004.
[2] In my decision of 18 July 2003, which was published on 22 July 2003 [PR935091], I decided to vary the above Agreement to remove uncertainty. I considered that my decision was clear in relation to clauses 5, 13(iv) and 15(iii). However, Mr Bell has cast doubt on the basis upon which clause 15(iii) was varied. I was acting under an application made pursuant to section 170MD(6) of the Workplace Relations Act 1996 and my decision should be seen to be confined to that section. I go further and state that I took a conscious decision to vary on the basis of uncertainty and not ambiguity.
[3] In that decision I reserved the rights of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia ("CEPU") to seek a re-listing. That right was expressed in these terms:
I have decided that the best course is to vary the agreement in the matter sought by Visionstream. I do so against a specific reservation. That reservation is that the CEPU can seek a re-listing of this matter should it wish to put submissions. [Paragraph 6]
[4] By letter dated 8 August 2003 CEPU sought a re-listing to allow "the CEPU and other interested parties to make submissions". By letter dated 4 September 2003, Corrs Chambers Westgarth, Lawyers, acting for Co-Invest Limited, sought leave to appear in the proceedings. The next important communication is a letter from CEPU advising that it did not wish to put submissions in the matter but it did not object to a third party making submissions. That letter was forwarded to the Commission and marked in these proceedings as Exhibit B6.
[5] Today, and without travelling in detail to the submissions, Visionstream submit that the Commission is functus officio as a consequence of the terms of the specific reservation contained on 18 July 2003 Decision. That is, given that CEPU no longer wish to be heard, the matter is at an end.
[6] Co-Invest argue the contrary and in particular submit there is a live application for intervention which ought to be determined; further, that the matter was not dealt with to finality and remains alive.
[7] I have decided that the precondition upon which the matter would be further heard no longer exists; namely, CEPU no longer wish to be heard.
[8] It follows that I no longer need to further hear and determine the application for intervention. I am satisfied that the application in matter AG2003/6028 is no longer alive, as it rested for its survival on the right of CEPU to be heard on its agreement with Visionstream."
[23] We now turn to the submissions advanced on appeal.
The Appeals
[24] We propose to deal first with the appeal in respect of the Commissioner's decision and order of July 2003.
[25] Two threshold issues arise for determination in respect of this appeal. The first concerns the appellant's standing to constitute the appeal.
[26] The appeal is brought pursuant to s.45(1)(g) and the appellant contends that it is "a person aggrieved by the decision or act concerned" within the meaning of s.45(3)(d) of the WR Act. The essence of the appellant's contention is that CoINVEST is statutorily responsible for the administration of the CILSL scheme, the operation of which is directly affected by the variation to the Agreement because the variation removes CoINVEST's right to collect relevant information and contributions in respect of employees of Visionstream.
[27] The respondent contended that the appellant was not a person aggrieved. In this context the respondent submitted, at paragraph 7.2 of its written submissions8 that:
"Co-Invest's interest is far less direct than the following persons (all of whom have been found to have had an indirect interest only):
(a) the SECV's "flow-on" interest as a party to the underlying industrial dispute in the award variation proceeding relating to the South Australian Electricity trust in Issacs (indirect at 620-1 and 629);
(b) an organization which did not have coverage of a class of employees in relation to whom another union sought an award in Ludeke (indirect at 525-6 and 529);
(c) young employees employed under an award which dealt with their employment in MEAA (indirect at 92-3)."
[28] The meaning of "a person aggrieved" within the context of s.45(3)(d) was considered by the Industrial Relations Court of Australia in Tweed Valley Fruit Processors Pty Ltd v Ross and others.9 In that case their Honours Wilcox CJ and Marshall JJ held:
"There is no doubt that, in determining whether a person is a "person aggrieved" for the purposes of exercising a statutory right of appeal, it is necessary to consider the relevant statutory context. Gibbs CJ said as much in Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 184-185. His Honour there referred to cases in which it had been held "that a person is `aggrieved' by an act which operates in restraint of what would otherwise have been his legal rights." But he also mentioned Attorney General (Gambia) v N'Jie [1961] AC 617 at 634 in which the Judicial Committee of the Privy Council said that the words "person aggrieved" should not be subjected to a restricted interpretation; "they ... include a person who has a genuine grievance because an order has been made which prejudicially affects his interest".
In Tooheys Limited v Minister for Business and Consumer Affairs (1981) 54 FLR 421, Ellicott J at 437 interpreted the description "a person who is aggrieved" in s.5 of the Administrative Decisions (Judicial Review) Act as extending, at least, to "a person who can show a grievance which will be suffered as a result of the decision complained of beyond that which he or she has as an ordinary member of the public". He went on to say at 437-438 that, in many cases, that grievance will be shown because the decision affects his or her existing or future rights but in other cases it may be less direct; it "may affect him or her in the conduct of a business or ... affect his or her rights against third parties."
Gummow J followed Tooheys in Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (1986) 13 FCR 124 in holding that the applicant, a registered industrial organisation with members serving in ships of the relevant class, had standing to seek reasons for a manning notice given by the respondent. At 133 his Honour pointed out, first, that the applicant had among its interests or objects the obtaining and maintenance of reasonable conditions of employment of its members, second, that it had been invited to participate in the relevant Manning Committee and had made submissions in regard to the manning notice and, thirdly, that the issue was one of safety and was "fertile ground for an industrial dispute".
The decision of Commissioner Redmond did not affect AFME/PKIU's legal interests. But the union had an interest in the decision beyond that of an ordinary member of the public. Its position was much like that of AIMPE in the case heard by Gummow J: it was concerned with the maintenance of members' conditions of employment, it had participated in the decision complained of by making submissions (pursuant to a statutory right: see s.170NB(2) of the Industrial Relations Act) and the decision was one containing potential for industrial disputation.
Having regard to these decisions, and the other authorities discussed by the judges who made them, it seems to us that the formula "person aggrieved" covers the position of AFME/PKIU in this case; unless there is something about this particular statute that indicates otherwise. The only thing mentioned by counsel is the restriction in s.45(3)(baa). But we do not see the existence of that restriction as an indication that Parliament wished the courts to interpret s.45(3)(d) more narrowly than they might otherwise have done. Section 45(3)(baa) deals with the right to pursue a merits appeal against a refusal decision. Section 45(3)(d) relates to the entitlement to raise a question as to whether a Commission member has acted within jurisdiction. These are different questions. There is room for the view that a wider category of people has a legitimate interest in ensuring that the Commission acts within its jurisdiction than those who are directly affected by a particular decision, and so allowed to agitate its merits."10
[29] The variation to clause 15(iii) of the Agreement has had the effect of removing CoINVEST's right to collect relevant information and contributions in respect of employees of Visionstream. In that sense the variation of the Agreement has operated to restrain what would otherwise have been CoINVEST's legal rights. Further, given the statutory basis of the CILSL scheme and the role of CoINVEST in the administration of that scheme we are satisfied that CoINVEST has suffered a grievance, as a result of the decision complained of, beyond that of an ordinary member of the public.
[30] We are satisfied that CoINVEST is a person aggrieved by the decision and order subject to appeal and as such has the requisite standing to institute the appeal.
[31] The second threshold issue concerns the time within which an appeal must be lodged.
[32] Rule 11(2)(a) of the Commission's rules provides that an appeal must be instituted "before the end of 21 days after the date of the award, order, decision or opinion appealed against." Rule 11(2)(c) confers power on a Full Bench to extend the time within which an appeal is to be lodged.
[33] The appeal in respect of the decision and order of July 2003 was lodged on 17 March 2004, some seven months out of time.
[34] The appellant advanced four points in support of its application to extend the time period for the lodgment of the appeal:
"1 CoINVEST acted reasonably in exhausting its rights in the proceeding before Commissioner Smith but this had the effect of taking CoINVEST out of time in respect of the appeal;
2 CoINVEST did not discover until 25 February 2004 that Commissioner Smith would regard him as functus officio in the substantive application for variation with the consequence that its correlative application for leave to intervene would not be heard and determined;
3 The appeal is based upon important and substantial grounds that deserve the consideration of the Full Bench;
4 The Commission, and in particular the Full Bench, is the appropriate forum for the issues raised by the appeal to be dealt with and CoINVEST is not otherwise able to bring these issues to the Commission."
[35] Mr Wood, counsel for Visionstream, submitted that in the event the Commission concluded that there was merit in the appeal, the respondent would not strenuously oppose the application to extend the time for lodgment.11
[36] The decided cases12 provide that following matters are relevant to the exercise of the Commission's discretion to extend time:
[37] We accept that there is a satisfactory reason for the delay. The appellant acted reasonably in exhausting its rights at first instance before instituting the appeal. We have also had regard to the nature of the grounds of appeal and the fact that one of those grounds would be upheld if time was extended. The respondent did not contend that it would suffer prejudice if time were extended because of developments after the time for lodgment had expired.
[38] In all the circumstances we think this is an appropriate case to extend time and we grant the application to extend the time for lodging the appeal.
[39] We now turn to the grounds advanced in support of the appeal.
[40] The appeal is against the Commissioner's decision, and subsequent order, to vary clause 15(iii) of the Agreement pursuant to s.170MD(6).
[41] Section 170MD(6) relevantly provides:
"The Commission may, on application by any person bound by a certified agreement, by order vary a certified agreement:
(a) for the purpose of removing the ambiguity or uncertainty"
[42] Before the Commission exercises its discretion to vary an agreement pursuant to s.170MD(6)(a) it must first identify an ambiguity or uncertainty.13 It may then exercise the discretion to remove that ambiguity or uncertainty by varying the agreement.
[43] The first part of the process - identifying an ambiguity or uncertainty - involves an objective assessment of the words used in the provision under examination.14 Once an ambiguity or uncertainty has been identified it is a matter of discretion as to whether or not the agreement should be varied to remove the ambiguity or uncertainty. In exercising such a discretion the Commission is to have regard to the mutual intention of the parties at the time the agreement was made.15
[44] The first step in dealing with a s.170MD(6)(a) application - the identification of an ambiguity or uncertainty - requires the determination of a "jurisdictional fact". In Corporation of the City of Enfield v Developmental Assessment Commission the joint judgment of Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ described the term "jurisdictional fact" in these terms:
"The term `jurisdictional fact' (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion."16
[45] Similarly in Re CFMEU - Termination of Bargaining Periods, Lee and Madgwick JJ said:
". . . the question presents as one of whether the Commission may have erred as to a `jurisdictional fact', that is, the existence or non-existence of a state of affairs which was a statutory precondition to the Commission acting. . ."17
[46] In the context of s.170MD(6)(a) the Commission must first identify the existence of an ambiguity or uncertainty before exercising its discretion to vary the agreement. We agree with the Full Bench in Re CFMEU Appeal which described the existence of an ambiguity or uncertainty as "a necessary statutory prerequisite to any variation being made."18
[47] In dealing with an appeal from the determination of a jurisdictional fact a Full Bench of the Commission is concerned with whether the member at first instance reached the right conclusion. It is not concerned simply with whether the decision of the single member was reasonably open to him or her.19 As Gummow J pointed out in Minister for Immigration and Multicultural Affairs v Eshetu,20 a court or tribunal cannot give itself jurisdiction by erroneously deciding that a jurisdictional fact exists.
[48] The appellant contends that the Commissioner had no jurisdiction to vary the Agreement pursuant to s.170MD(6) upon the basis that a prima facie case of uncertainty had been established. It is argued that the Commission's power to vary an agreement pursuant to s.170MD(6) requires a positive finding that the agreement is uncertain or ambiguous. On that basis it is submitted that the Commissioner erred in adopting the approach that it was sufficient that he be satisfied on a prima facie basis that the Agreement was uncertain and that he had the requisite jurisdiction to vary the Agreement.
[49] The appellant's contention turns on the terms of the Commissioner's decision of 22 July 2003 and in particular that part of his decision where he deals with the question of whether or not the clauses sought to be varied are uncertain. The Commissioner said:
"[5] Having heard Mr Butler, on behalf of Visionstream, I am satisfied there is uncertainty in relation to the operation of clause 5 and clause 13(iv). Indeed, Mr Absolom says that the area of consultation that needs to be undertaken does not go to the operation of those clauses. In relation to clause 15(iii), I am satisfied that Mr Butler has established a prima facie case for this application to be granted."
[50] It is relevant to note that in this part of his decision the Commissioner draws a clear distinction between clause 5 and 13 on the one hand and clauses 15(iii) on the other. In respect of the former clauses he says that he is "satisfied" that they are uncertain. No challenge is made to that finding on appeal. In respect of clause 15(iii) he is satisfied that a prima facie case has been established for the application to be granted.
[51] Mr Wood submitted that the decision ought not be gone through "with a fine appellate toothcomb"21 and on a fair reading it is apparent that the Commissioner was satisfied that clause 15(iii) was uncertain.
[52] Mr Wood put it in these terms:
"If one looks through any decision and one goes through it with a fine appellate toothcomb, then one can find certain inelegance in some forms of phrasing a decision. But if one looks at what Commissioner Smith actually did, then one finds that he was satisfied to the requisite level on the evidence before him . . .
I think in truth that is what he was saying. He was saying that there is uncertainty in relation to 15(iii), but because of the urgency of the matter there would be a reservation to the union to come back and make additional submissions or lead further evidence in relation to that position. But he was satisfied to the extent that he needed to be in the circumstances of the case."22
[53] We agree, of course, with the proposition that the Commissioner's reasons must be read as a whole and should be approached fairly. They should not be considered in a manner which would regard every lapse of expression or phrasing as constituting an error warranting correction on appeal.23 As his Honour Kirby J said in Minister for Immigration and Ethnic Affairs v Wu Shan Liang:
"The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law."24
[54] But it seems to us that the use of the expression prima facie in the decision subject to appeal was not simply a lapse of expression or phrasing. Rather the Commissioner deliberately distinguished the position with respect to clauses 5 and 13, to that which pertained in relation to clause 15(iii). In respect of the latter the extent of his finding was that the applicant had established a prima facie case for relief.
[55] The meaning of the expression prima facie was considered by the High Court in North Ganalanja Aboriginal Corporation v The State of Queensland. In that matter their Honours Brennan CJ, Dawson, Toohey, Gaudron and Gummow JJ said:
"The phrase can have various shades of meaning in particular statutory contexts but the ordinary meaning of the phrase "prima facie" is:
`At first sight; on the face of it; as appears at first sight without investigation.' (Oxford English Dictionary, 2nd ed (1989), vol XII at 470- 471.)"25
[56] Sometimes the expression prima facie case has been equated to the existence of an arguable case, that is one which has some prospect of success.26
[57] In our view the Commission's power to vary an agreement pursuant to s.170MD(6) requires a positive finding that the agreement is uncertain or ambiguous. The Commissioner erred in deciding that it was sufficient that he be satisfied on a prima facie basis that the Agreement was uncertain and that he therefore had the requisite jurisdiction to vary the Agreement.
[58] The error identified is jurisdictional in character and we are satisfied that leave to appeal ought be granted and the appeal upheld. In the circumstances we need not consider the other arguments advanced in support of the appeal. However, we note that in circumstances where the Commissioner had not heard submissions from the other party to the Agreement, the CEPU (which had indicated that it had difficulties with the proposed amendment to clause 15(iii) and had sought an adjournment to prepare its response), it was not appropriate to vary the Agreement merely on the basis of bar table statements by Visionstream's representative regarding the mutual intention of the parties.27
[59] We have decided to quash that part of the order subject to appeal which varies clause 15(iii) of the Agreement. We remit Visionstream's s.170MD(6) application to Commissioner Smith for further hearing. The question of Co-INVEST's application for leave to intervene will be a matter for the Commissioner. In determining that question the Commissioner will no doubt have regard to our conclusion in respect of the appellant's standing to institute the appeal.
[60] During the course of the oral argument Mr Bell QC, counsel for the appellant, indicated that in the event the first appeal was successful then the second appeal was not pressed. Accordingly we need not determine the second appeal.
Appearances:
K. Bell, Queen's Counsel, with R. Doyle, of Counsel, and H. Roberts for CoINVEST Limited.
S. Wood, of Counsel, with M. Butler for Visionstream Pty Ltd.
Hearing details:
2004.
Melbourne:
May 19
Printed by authority of the Commonwealth Government Printer
<Price code E>
11 Transcript 19 May 2004 at paragraph 131.
12 Re Metro Meat Ltd Orange Interim Award 1987, Print J1669, 1 March 1990 per Munro J, MacBean SDP and Grimshaw C; Bremmer v Lababidi, Print S7292, 21 June 2000 per Polites SDP, Williams SDP and Lewin C; Fox v Kangan Batman TAFE, Print S0253, 25 October 1999 per Giudice J, McIntyre VP and Redmond C; Stevenson-Helmer v Epworth Hospital, Print T2277, 19 October 2000 per Ross VP, Acton SDP and Simmonds C; and Tracey Christie v London Transport Bus Tours Pty Ltd, PR912670, 19 December 2001 per Ross VP, Lacy SDP and Holmes C.
13 Re Victorian Public Transport Enterprise Agreement 1994, Print M2454, 7 June 1995 per Ross VP, Polites SDP and Grimshaw C at p.3; and Re CFMEU Appeal, Print R2431, 25 February 1999 per Harrison SDP, Drake DP and Larkin C at paragraph 8.
14 Re Victorian Public Transport Enterprise Agreement 1994, Print M2454, 7 June 1995 per Ross VP, Polites SDP and Grimshaw C at p.3.
15 Re Victorian Public Transport Enterprise Agreement 1994, Print M2454, 7 June 1995 per Ross VP, Polites SDP and Grimshaw C at pp.3-4.
17 (2002) 113 IR 241 at paragraph 53.
18 Print R2431, 25 February 1999 per Harrison SDP, Drake DP and Larkin C at paragraph 6.
19 Pawel v Australian Industrial Relations Commission (1999) 97 IR 392 per Branson and Marshall JJ at paragraph 16.
20 (1999) 162 ALR 577 at paragraph 127. Also see R v Judges of the Federal Court of Australia; Ex parte WA National Football League (Inc) (1979) 143 CLR 190 at 214.
21 Transcript at paragraph 152.
22 Transcript at paragraphs 152 and 154.
23 See Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (1999) 90 IR 432 at 457; ALH Group Pty Ltd t/as the Royal Exchange Hotel v Mulhall, (2002) 117 IR 357.
25 (1996) 185 CLR 595 at 615-616.
26 Hunter v Commissioner of Police [2003] WASC 10 at [18] and [19] per Pullin J.
27 R v Commonwealth Conciliation and Arbitration Commission; Ex parte The Melbourne and Metropolitan Tramways Board (1965) 113 CLR 228 at 243 per Barwick CJ and at 252 per Menzies J.