PN1

VICE PRESIDENT HATCHER: I will take the appearances. Mr McCabe, you appear for the appellants.

PN2

MR McCABE: That's right, Vice President.

PN3

VICE PRESIDENT HATCHER: Thank you.

PN4

And Mr Denton, you appear for the respondent.

PN5

MR DENTON: I do, Vice President, yes.

PN6

VICE PRESIDENT HATCHER: The parties are granted permission for legal representation. I can indicate that we have at least read the decision under appeal and the parties' outlines of submissions.

PN7

Mr McCabe?

PN8

MR McCABE: Thank you, Vice President. If I can commence by really taking you through the factual background of this matter then very briefly setting out the applicable law before dealing with our main arguments today. In terms of the factual background of this matter for more than 20 years there has been a single Enterprise Agreement for the whole of the respondent's workforce and for the workforce of its predecessor, Etsy Utilities.

PN9

The respondent, Utilities Management Proprietary Limited is the employer of all the relevant employees. It employs people to do work for two entities. One of those is South Australian Power Networks known as SAPN or SAPN. The respondent is in fact a subsidiary of SAPN and SAPN is the regulator provider of electricity distribution services in South Australia and has, I understand, a 99‑year lease (indistinct) relevant electricity distribution infrastructure.

PN10

The other entity for which the respondent's employees do work (indistinct) Energy Infrastructure Proprietary Limited. Enerven is also a subsidiary of SAPN. Enerven was created in order to compete for contracts in the open market to provide electrical services to major owners of electrical infrastructure such as mine sites and so on. However, an important matter which I'll return to shortly is that one of Enerven's clients is indeed SAPN itself.

PN11

The most recent Enterprise Agreement for Utilities Management Proprietary Limited is the Utilities Management Enterprise Agreement 2018. It had a nominal expiry date of 31 December 2020 and so in June 2020 the respondent and the relevant Unions began bargaining for a replacement agreement which initially everyone agreed would cover the whole enterprise.

PN12

Bargaining proceeded over a period of some 15 months. On three occasions over that 15 months the respondent put their preferred agreement to a ballot over the objections of the Union bargaining representatives and on each occasion the Unions had a no vote and there was a significant no vote of around 60 per cent. From April 2021, so nearly 12 months after bargaining commenced, employees have taken periodic protected industrial action in support of the claims they're advancing in bargaining.

PN13

Five months later, in September 2021 the respondent for the first time ever in the history of the relationship, proposed that there should be two (indistinct) rather than one. They proposed that one agreement should cover all of the respondent's employees who work for SAPN and there should be a second agreement for all of the respondent's employees who perform work for Enerven.

PN14

VICE PRESIDENT HATCHER: So when was Enerven established?

PN15

MR McCABE: Sorry?

PN16

VICE PRESIDENT HATCHER: Mr McCabe, when was ‑ ‑ ‑

PN17

MR McCABE: Sorry, Vice President, I didn't catch that?

PN18

VICE PRESIDENT HATCHER: When was Enerven established?

PN19

MR McCABE: I have to check that but I understand it was established in, I think, around the mid‑2000s and I understand there was a predecessor to Enerven, so the notion that there would be a side of the business that completes the competitive work, not new, but I understand how that has occurred has evolved over the years. I'd have to check exactly when Enerven was established but I know it had a predecessor which was known as CaMS, C‑a‑M‑S, I'm not exactly sure what that stands for but that was the predecessor entity.

PN20

VICE PRESIDENT HATCHER: All right. Thank you.

PN21

MR McCABE: So it was shortly after that proposal was made that the applicant Unions went through the necessary requirements in order to apply for a scope order, that is, notifying the respondent of their concerns about this new scope and then when those concerns were not able to be satisfied, making the scope order application which is on appeal before the Full Bench today.

PN22

Turning to the relevant law, the relevant law is of course section 238 of the Fair Work Act which empowers the Commission to make scope orders. It is worth briefly noting upfront that all of the numerous requirements of section 238 including all of the procedural preconditions were found to be satisfied (indistinct) the Deputy President save for two and those are two of the matters specified under subsection (4), namely 238(3) and 238(4)(d).

PN23

Those two criteria relate to firstly whether the scope order would promote fairness and efficiency in bargaining and secondly, whether the scope order would be reasonable in all the circumstances. So it is really only those two criteria that are in dispute and are the subject of the appeal.

PN24

VICE PRESIDENT HATCHER: Before you start addressing those, Mr McCabe, can I just ask you about the notice of employee representational rights which I'll just call the notices, so in effect, the Enerven employees received the first notice issued on 5 June 2020, correct?

PN25

MR McCABE: Correct.

PN26

VICE PRESIDENT HATCHER: And then they received for an agreement with a narrower scope, a second notice in September 2021, correct?

PN27

MR McCABE: Correct, yes.

PN28

VICE PRESIDENT HATCHER: So what do you say is the effect of the second notice with respect to the first notice for those employees, that is, does the second notice in some sense revoke the first notice or they do - they continue to run simultaneously or what?

PN29

MR McCABE: We say that it's wrong to think of the notice as having a legal effect as in the sense of commencing the bargaining. The bargaining had already commenced, the bargaining still commences - still is progressing, there is only one - there is only the bargaining for a proposed agreement.

PN30

Nobody knows exactly what that proposed agreement will be at the present time so in my submission, the notice is really just a procedural requirement to be satisfied in order to ensure everyone is properly informed of the bargaining who might be affected by it but it's wrong to speak of bargaining occurring pursuant to a NERR because really there doesn't need to be a NERR issue before bargaining can proceed on a smaller than the scope originally envisaged when the NERR was sent out.

PN31

That can simply be raised in bargaining. So we say that the issuance of the NERRs in themselves don't have any relevant legal effect.

PN32

VICE PRESIDENT HATCHER: Well, they establish a notification time with respect to bargaining under section 173(2) or perhaps they can signify that the employee has agreed to bargain or initiate in bargaining. That is - the point I'm coming to is that it seems to me that the position is that the employer having initiated bargaining by way of issuing notices in 2020 has initiated or agreed to bargain for the wider scope already.

PN33

MR McCABE: We certainly agree that by issuing the first - not only by issuing the first NERR, certainly by issuing the first NERR the respondent indicated that to the broader scope and we say that is a factor relevant to a number of criteria that the Full Bench - that the Commission has to consider including the fairness and efficiency of bargaining and the overall reasonableness, the respondent issued that NERR initially, as you say, Vice President, and that that indicated at that point they'd agreed and of course there was a lot of other conduct over the 15 months that followed which also indicated that the respondent agreed to the broader scope.

PN34

VICE PRESIDENT HATCHER: And then it would seem to follow - again, speaking only for myself, it would seem to follow, I think that having done that, with respect to the wider scope, a good faith bargaining obligations would continue to attach to that bargaining on an ongoing basis. Do you accept that?

PN35

MR McCABE: Yes, Vice President.

PN36

VICE PRESIDENT HATCHER: All right. So with that fairly unusual - slightly unusual background, I'm just struggling to understand what is the practical effect of a scope order in any event, that is the type of scope order that your client sought at first instance, what would it do that isn't already in effect?

PN37

MR McCABE: Well, the practical effect of a scope order, in my submission, there are really two practical consequences of making a scope order. The first is that following the making of a scope order (indistinct) it will be a breach of good faith bargaining obligations to continue to insist upon a scope contrary to the scope order and that's addressed ‑ ‑ ‑

PN38

VICE PRESIDENT HATCHER: What's the basis for that? Just can you just show me why that is?

PN39

MR McCABE: Certainly. That's addressed briefly in the written submissions, I'll just find the references.

PN40

VICE PRESIDENT HATCHER: Yes, I'm just looking for the statutory basis foundation for that.

PN41

MR McCABE: Yes. The statutory basis for saying that is section 230(2)(c).

PN42

VICE PRESIDENT HATCHER: Right. Sorry, which section was it?

PN43

MR McCABE: Section 230(2)(c).

PN44

VICE PRESIDENT HATCHER: Sorry. (Indistinct) the foundation that - for it seeking a bargaining order but you already had (a).

PN45

MR McCABE: Sorry, (2)(a).

PN46

VICE PRESIDENT HATCHER: So is (c) the gateway for - following for a bargaining order but (a) already applies so that's not the point, is it?

PN47

MR McCABE: Yes. Well, yes, your Honour but I think that (2)(c) needs to be read with the explanatory memorandum as well, in particular paragraph 788. I apologise that I don't think there is a copy of that before the Bench in the index of authorities. I can just take - if I could just read out what that says. Apologies. Sorry, it's paragraph 988. At paragraph 988 the explanatory memorandum says:

PN48

There is no civil remedy provision for contravention of a scope order, instead the consequence of contravening a scope order is that the bargaining risks having a bargaining order issued against it and contravening a bargaining order is a civil remedy provision.

PN49

That makes clear, in my submission, that what the statutory intention - the legislative intention in relation to a scope order is that once a scope order is made, bargaining that occurs contrary to that scope will at least prima facie be a contravention of good faith bargaining obligations and expose a party to liability for a bargaining order.

PN50

I think it's also worth mentioning that there is a consequence of a breach of a scope order and that consequence is that again, prima facie, a (indistinct) - sorry, a proposed Enterprise Agreement that is submitted for approval to the Commission will not be approved if it has a scope contrary to a scope order that has been previously made and that's also made clear at that same paragraph of the explanatory memorandum, paragraph 988.

PN51

VICE PRESIDENT HATCHER: I assume that's a reference to 187(2), is it?

PN52

MR McCABE: That's right, yes.

PN53

VICE PRESIDENT HATCHER: But that's not what 187(2) says, is it?

PN54

MR McCABE: I accept that 187(2) is somewhat ambiguous in what it says in that it - but if you go to the third explanatory - at the explanatory memorandum what it says about that there is that subclause 187 (indistinct) makes clear that:

PN55

prior to approving an Enterprise Agreement FWA, as the Commission then was, must be satisfied that the agreement would not be inconsistent with or (indistinct) in good faith bargaining for a proposed Enterprise Agreement in respect of which there is a scope order in operation.

PN56

So in my submission ‑ ‑ ‑

PN57

VICE PRESIDENT HATCHER: That repeats the provision but a scope order does not, as I - and you can tell me if you're wrong but speaking for myself, a scope order does not require an agreement to be made firstly at all or secondly, with the scope in the scope order, does it? I mean, let's say a scope order was made, it's still entirely possible that employer and unions negotiating in good faith ultimately agree upon an agreement with a different scope. They're not bound by that scope.

PN58

MR McCABE: That's right.

PN59

VICE PRESIDENT HATCHER: The only requirement is that, it seems to me, is that there has to be good faith bargaining in respect of an agreement with a scope specified in the scope order.

PN60

MR McCABE: I accept that, yes, and that's - sorry, Vice President, that's what I meant by saying, 'Prima facie', if the - in this case, the respondent were - if a scope order were made and the respondent were to simply proceed as if the scope order hadn't been made and to advocate for two separate agreements, then that would prima facie be a breach of good faith bargaining obligations and if they pushed an agreement to a ballot with that scope, that would fall foul of section 187(2) but if ‑ ‑ ‑

PN61

VICE PRESIDENT HATCHER: Well, can I just pull you up there again?

PN62

MR McCABE: Yes.

PN63

COMMISSIONER BISSETT: That would not fall foul of 187(2) provided the employer had bargained in good faith in respect of the scope but at the end of the day, they can't be forced to enter into an agreement upon a particular terms and if they bargain in good faith and go to meetings and respond to claims and - et cetera.

PN64

And at the end of the day they're not persuaded that an agreement with that scope would be in their interests then provided they've done all those things it still would seem to me, to be open for them to put to a ballot an agreement with a different scope and just as the union - just as the other way round, if the employee got the scope order, the unions could seek to persuade them through good faith bargaining to have a different scope.

PN65

MR McCABE: Yes. Yes, I accept that but my point is that it would not permit the respondent to continue to conduct bargaining in the way that it's currently conducting bargaining which is to have separate meetings for a proposed Enerven Agreement and a proposed SAPN Agreement.

PN66

That would be on the face of it, a breach of good faith bargaining obligations because it wouldn't involve (indistinct) being convinced of a different scope clause, it would instead involve simply insisting upon a scope contrary to the scope specified in the scope order. And so if that was the way the respondent conducted itself if it then went to an agreement, they'd formed an agreement having conducted itself in that way then that would fall foul of section 187(2).

PN67

Of course it would always be open to the parties to reach a different agreement if for some reasons the circumstances change and everyone is agreed on a new scope.

PN68

VICE PRESIDENT HATCHER: All right. Thank you.

PN69

MR McCABE: In terms of what the appellant says in relation to today's appeal, there are two primary arguments that the respondent - the appellants make in relation to why the Deputy President was in error. The first of those points is that the Deputy President proceeded on a wrong principle, namely, on the principle that where there are two fairly chosen scopes, it's not the proper role of the Commission to intervene by making a scope order.

PN70

And we say that that wrong principle infected the whole of the reasoning relevant to this appeal, that is the reasoning in relation to section 238(4)(b) and 238(4)(d). The second primary point the appellants make in this appeal is that in any event the respondent's proposed scope is not fairly chosen because it has a number of fundamental flaws which I'll come to in a moment.

PN71

So those are our two primary points in this appeal and I'll deal with the first now which is that the Deputy President acted on a wrong principle in relation to his consideration of section 238(4)(b) and (4)(d). the starting point for that submission is really paragraph (4) of the United Firefighters Union Full Bench decision which is in the index of authorities provided yesterday.

PN72

VICE PRESIDENT HATCHER: Sorry.

PN73

MR McCABE: It's the Full Bench.

PN74

VICE PRESIDENT HATCHER: Sorry, Mr McCabe, I'm just understanding the point. So you're contending that the Deputy President erred by finding that the scope sought by the employer was reasonable, is that what you just said?

PN75

MR McCABE: By finding that the respondent's preferred scope was fair. That's right. Yes.

PN76

VICE PRESIDENT HATCHER: So what appeal ground does that fall under?

PN77

MR McCABE: So we say that the appeal ground that that relates to is firstly appeal ground 1 that the Deputy President failed to take into account the uncertainty as to scope occasioned by the identical or similar nature of the work performed by the workers under the competing scopes.

PN78

VICE PRESIDENT HATCHER: So you say if he's properly taken those things into account he would have found that the employer's scope was not fairly chosen, is that the point?

PN79

MR McCABE: That's right. Yes.

PN80

VICE PRESIDENT HATCHER: All right. I understand. Go on.

PN81

MR McCABE: Turning to paragraph 54, if I may, of the United Firefighters Union decision, that paragraph says - it deals with the submission made in that case to the following effect:

PN82

That a scope order should not be made against the opposition of a bargaining representative unless one of the bargaining representatives is pursuing a scope for negotiations which is unfair.

PN83

And the Full Bench says at that submission:

PN84

This submission must be rejected. It involves adding an additional requirement to those specified in sections 238(4) (indistinct). If two parties to an application for a scope order advance alternative positions neither of which is objectively unfair but the Tribunal is satisfied of the relevant matters and disposed to make an order, it would be (indistinct).

PN85

In my submission, that paragraph of the Full Bench decision makes that it is an error to proceed on the reasoning that there are two fair positions as to scope and therefore it would be wrong for the Commission to intervene and to decide a scope order on that basis but in my submission, that's precisely what Deputy President did in relation to his assessment of both section 238(4)(b) and 238(4)(d) and I wish to take the Bench to that reasoning if I may demonstrate that point.

PN86

If the Full Bench has the decision of the Deputy President before it, the relevant reasoning as to section 238(4)(d) commences under the heading (indistinct) which is at paragraph 151, page 33 of the judgment. The crucial reasoning as to reasonableness is at paragraph 154 and following where the Deputy President identifies four factors which he says decisively weigh against the scope order being reasonable.

PN87

The first of those factors is at paragraph 155:

PN88

An agreement made with persons working in the Enerven business only would also be in agreement with a scope that is fairly chosen.

PN89

And then the second factor is at paragraph 156 where he says:

PN90

The effect of a scope order would be that any replacement agreement made by Utilities Management is required to cover its workforce as a whole. This would materially compromise extant bargaining.

PN91

And then the last sentence:

PN92

It also compromises the utility of the employer advancing the proposition that separate agreements should be made for its Enerven and SAPN business.

PN93

At paragraph 157 he identifies the third factor against reasonableness which is really - the crux of it, I say is really over the page on page 34 about five lines down where he says:

PN94

There is a material risk that a scope order is interpreted as the Commission sanctioning or giving preference to the scope proposed by the union representatives to the exclusion of other fairly chosen scopes, and that the Commission's order will itself become a subject of controversy and misunderstanding.

PN95

MR McCABE: And then at paragraph 159 is the final, fourth factor and that is, the crux of that I say is really in the (indistinct) where the Deputy President says:

PN96

In circumstances where the Commission has concluded that a fairly chosen scope exists with respect to both propositions -

PN97

- that is the appellants' preferred scope and the respondents' preferred scope -

PN98

- the limited bargaining that has occurred to date over these contested propositions should not be distorted by a Commission order.

PN99

In my submission, all four of those factors really have as their underlying premise exactly the error identified in United Firefighters Union and that is that where there are two fair positions about the scope it is not the Commission's proper role to intervene and make an order but rather it should just be left to the parties. That is precisely the reasoning process which United Firefighters Union identified as erroneous but it is really the only consideration which has taken into consideration by the Deputy President in order that the scope order would not be reasonable in all the circumstances.

PN100

Turning to the consideration of the other relevant criteria in section 238(4)(b).

PN101

VICE PRESIDENT HATCHER: Sorry, before you move from (d), what do you say about the first sentence of paragraph 163?

PN102

MR McCABE: Yes. Yes, so paragraph 163 if a further conclusion which, we say really underscores the erroneous approach that's been taken here, Deputy President. Paragraph 163 commences:

PN103

Put another way, the Commission's proper role under section 238 is to guard between - not to pick a winner between two fairly chosen scopes.

PN104

So that is really an explicit and express statement of what I say is the underlying principle that clearly informs all of the Deputy President's reasoning here and then tellingly, in my submission, that is followed by a quotation from a Full Bench decision of CFMEU v ResCo and obviously enough, the Deputy President's thinking clearly arises from the last two sentences in particular of the (indistinct). He quotes from ResCo which says:

PN105

The tribunal's task is not to determine the scope clause. Its task is to guard against unfairness by being satisfied that the group can be described, in all the circumstances, as fairly chosen.

PN106

And so that mirrors the language the Deputy President used himself to describe the Commission's proper role under section 238. My submission about that is as I've put in my written submissions, that ResCo was actually dealing there not with section 238 at all but section 186 where of course the agreement approval power and in particular, it was dealing with section 186(3) which requires that the Fair Work Commission be satisfied that a scope is fairly chosen before approving an Enterprise Agreement containing that scope.

PN107

Now, of course the task that confronts the Commission under 238 is entirely distinct from that task. It doesn't just require consideration of whether the scope is fairly chosen, it requires a whole host of matters including the fairness and efficiency of bargaining, the reasonableness of the order and so forth and what that is all clearly aimed at, in my submission, is (indistinct) as to scope is quelling the controversy as to scope.

PN108

In my submission, there's no other convincing rationale for the existence of section 238 other than it requires the Commission to intervene where it is satisfied of all the preconditions specified in section 238 and in that regard it's worth nothing subsection (1) and subsection (3) which are the procedural preconditions required to be satisfied in section 238 and they establish a process for the applicant setting out its concerns about the scope to the other bargaining parties giving time for a response, considering that response and so forth.

PN109

So what is envisaged there is not - is quite clearly, in my submission, that there may well be several proposals as to scope, there's no requirement in the legislation, the scope order is only appropriate where only the applicants' proposal as to scope is fair for all parties for the Fair Work Commission to have inserted - sorry, the legislature to have inserted that requirement if that were a requirement.

PN110

And that is exactly what the Bench said in United Firefighters Union when they said that the approach of saying that where there are two fairly chosen scopes, the Commission should not intervene is adding a requirement into the statute that's not there. Those were their words and the correctness of that is made manifest by the way the reasoning proceeds in this case, in my respectful submission.

PN111

I turn then to section 238(4)(b) which concerns the promotion of fair and efficient bargaining. Sorry, that's at paragraph 101 and following under the heading:

PN112

Promoting fair and efficient bargaining.

PN113

At paragraph 104 the Deputy President sets out the one matter which he accepts weighs in favour of the scope order promoting fair and efficient bargaining and that is that the scope order would have utility in that it provides (indistinct) that a replacement agreement covering the workforce as a whole would be a fairly chosen scope. However, he then immediately (indistinct) that advantage in paragraph 105 saying it would only be limited and abstract and he goes on at paragraph 106 to say to further deprecate that advantage by noting that firstly, given past generations of agreements already covered the whole workforce an order in the terms sought is not a novel proposition and secondly, it does not follow that because a replacement agreement covering the workforce as a whole was fairly chosen if some other scope is not also fairly chosen.

PN114

What I respectfully submit arises from that is that the Deputy President considers that the scope order is simply really a form of advice about whether or not the sought scope is fairly chosen and that that's really all it's about.

PN115

That further underscores the Deputy President's, in my respectful view, erroneous understanding of section 238 and that it only is concerned with determining whether the scope was fairly chosen and not picking a winner between two fairly chosen scopes and clearer still when we consider paragraph 108 and paragraph 109, in these paragraphs the Deputy President sets out some (indistinct) benefits that he sees from the scope order as to fair and efficient bargaining and he ultimately finds these considerations to be decisive and to outweigh the minor benefit of the guidance about the fairly chosen scope that he identifies at paragraph 104. So at paragraph 108 and 109 he says:

PN116

It -

PN117

- 'It' being the scope order:

PN118

It would not promote fair and efficient bargaining given the reality that exists: a lawful process for bargaining for a separate agreement with its Enerven business has been commenced by Utilities Management and a critical issue to the making of an agreement being coverage, is now disputed.

PN119

Given that scope is a legitimate subject matter for bargaining, for reasons common with the conclusion (below) it is - that it is not reasonable in the circumstances to make the order sought I am not satisfied that such an order would promote the fair and efficient conduct of bargaining. It would materially compromise bargaining by tilting the scales over whether scope should include the whole workforce or the separate businesses conducted by the employer.

PN120

So (indistinct).

PN121

VICE PRESIDENT HATCHER: Well, on (indistinct). Mr McCabe, so on your submission that is the purpose of a scope order, that is, as it were, to tilt the scales one by the other to put the issue to bed, is that your submission?

PN122

MR McCABE: That's exactly my submission, yes, Vice President.

PN123

VICE PRESIDENT HATCHER: And so again, what's the clearest case authority for that proposition, if any.

PN124

MR McCABE: I accept that there is limited consideration of the purpose of a scope order but in the terms that I'm submitting but what we do have is United Firefighters Union. It's a clear decision that it will be an error to fail to make a decision about the scope order merely because there are two fair scopes and in my submission, that's because that is the (indistinct) to the Commission by section 238 is to make a decision about scope if all the criteria are met.

PN125

And another matter I would raise in that regard is that there are, by my count, four Full Bench decisions dealing with section 238 and in three of them the Full Bench has either made a scope order in circumstances where there are two fairly chosen scopes or it has affirmed a single member decision to make a scope order where there are two fairly chosen scopes.

PN126

So the suggestion by the Deputy President that that is in fact not the proper role of the Commission under section 238 seems to suggest that, at best, that was a point that should have been taken in all three of those appeals but wasn't but what I say it demonstrates is really the (indistinct) of the Deputy President's approach and that that is not the correct way to think about section 238.

PN127

VICE PRESIDENT HATCHER: Mr McCabe, one unusual factual feature about this case is that of course, there already has been extensive bargaining about the scope which the unions want and it didn't go very well, that is, even before scope became an issue, it wasn't as if things were travelling well so why do you say in a practical sense a scope order would promote more efficient bargaining given that history?

PN128

MR McCABE: Sorry, why it would (indistinct) as an efficiency, was that - that was the (indistinct) ‑ ‑ ‑

PN129

VICE PRESIDENT HATCHER: Yes, that is - with respect to paragraph (b), I mean, this is not the usual situation you face when you have an application for a scope order but in this case the parties bargained for a long period of time with respect to the wider scope that the unions want and they did so long before scope became an issue in 2021 so with that rather unusual history, why would a scope order, why do you say a scope order would promote efficient bargaining?

PN130

MR McCABE: Well, firstly, I note that there's no - the respondent hasn't suggested that this will resolve those tensions. There's no reason to think that those problems that were already occurring will be resolved by a new scope so my first submission about that would be that those problems that your Vice President refers to, the fact that negotiations have been protracted and difficult, there's really no reason to think that that - I mean, that's really going to continue as far as we know, whatever happens, whatever the scope.

PN131

But secondly, in terms of why the scope order will promote fairness and efficiency there are really two main things we say about that and they are as follows. There are significant efficiencies in having one agreement rather than two. That's intuitively got to be the (indistinct) and there's Full Bench authority about how that's a factor in situations like this that the starting point is, well, in fairness and efficiency will be promoted in bargaining by having less agreements rather than more because of course, there is a duplication of processes, duplication of consultation and so forth.

PN132

So that's an important matter. We also say, and I'll come to this in more detail in a moment. We also say that there is some further efficiencies of having one agreement rather than two, rather than the obvious maths of having less meetings and less processes and that is because we say at very best for the respondent there are going to be some enormous difficulties in determining how the two agreements will apply in particular circumstances given the intermingling of the SAPN work, having two agreements in respect of them is going to throw up all sorts of problems in terms of how to classify people to do a mix of both and in terms of which agreement will apply at which times if you're working for both on different days or even in the same (indistinct) doing one job for SAPN and one job for Enerven.

PN133

How will that work in terms of agreement provisionals which might relate to daily allowances or maximum shift events or things like that. There's going to be a whole host of intractable problems which we (indistinct) are not capable of resolution (indistinct) and at the very least they're going to introduce a new - a whole (indistinct).

PN134

VICE PRESIDENT HATCHER: (Indistinct), Mr McCabe, I'm just going to have to send a text message, but go on.

PN135

MR McCABE: Yes. They're going to introduce a whole host of new problems into the bargaining which has (indistinct) have to be negotiated over. It's fair to say those negotiations are likely to be difficult and protracted as most have been already but if there (indistinct) not only do we streamline the number of meetings and so forth that need to occur, we also just completely obviate all of those difficult problems which I'll come to in more detail in a moment if I may, when I address the fairness of the scope.

PN136

All of those problems just disappear the moment this is limited to one agreement for the whole workforce. So that's really the first point about fairness and efficiency and how it's promoted by having this one agreement for the whole workforce rather than two. The second point is about the 15 months of bargaining and the fact that as you note, Vice President, that that has been protracted and difficult and neither side has made as much progress as they had hoped but nonetheless, progress has still been made, consultation has occurred, issues have been thought out amongst the employees.

PN137

Claims have been crystallised by our employees. Claims have been refined, they've been tested at meetings. They found out what the other side thought of them. Some claims have been agreed, some claims have been dropped and so forth so although I don't press that point too hard and I accept that there has been less agreement than would have been hoped, it shouldn't be underestimated the amount of work that has already occurred over that 15 months and a great deal of that will be lost if negotiation now occurs on the basis of two separate agreements as the respondent is now carrying out the bargaining in the absence of a scope order.

PN138

So those are two matters in particular that we say go to fairness and efficiency. There is really a third matter as well which I'll go to now given we're discussing it, if I may, and that is that the proposed scope of the agreements is of course whether you perform work for SAPN or Enerven, a different agreement will cover you. The uncontested evidence is that the employer can change whether you perform work for SAPN or whether you work - perform work for Enerven at its discretion or consent and without any change to the nature of the work you do.

PN139

So that means, in my submission, that there is an inherent unfairness in forcing employees to negotiate for a SAPN or Enerven agreement based on what work they do today when there is absolutely no guarantee that that may well change once the agreement has been agreed and proved such that the agreement the employee was forced to bargain in good faith for, is not the agreement that covers them and now the agreement that covers their work is some other agreement that they had no say in negotiating.

PN140

DEPUTY PRESIDENT COLMAN: So that will depend on the terms of the agreement that's ultimately negotiated, won't it? I mean, there may or may not be a provision that regulates the transfer or deployment of workers on one agreement or another but that's a matter of detail to be determined in bargaining, isn't it?

PN141

MR McCABE: Well, the evidence so far has been that the respondent will retain any sort of provision which limits transfers or gives employees a say in transfer. That's the respondent's position at present is that (indistinct) ‑ ‑ ‑

PN142

VICE PRESIDENT HATCHER: Well, I thought the point you were making is that the need to try and resolve those issues in bargaining if you have two agreements creates difficulties and issues needing to be resolved which wouldn't need even to be discussed if you had a single agreement. I thought - is that the point you were trying to make?

PN143

MR McCABE: Well, I think there are two distinct points there, Vice President. That's the first that there are all these problems thrown up by the intermingling of those - of people who work for SAPN and Enerven which need to be resolved, which don't need to be resolved if there's one but there's a related point which is that it's also - so that's inefficient but it's also unfair to have employees turn up to meetings, bargain in good faith about an agreement which they don't have any certainty will end up applying to them because their employer has the power at the moment unless there's some agreement to the contrary, at the moment the employer has the power to direct an employee to do work for the other entity and there's nothing we can do about that.

PN144

So they have no certainty. They're required to turn up to the bargaining table and negotiate about an agreement they have no certainty will ever apply to them. So if I can then turn - I think that deals with the point about the wrong - I think I've dealt now with the point about the wrong principle that I say the Deputy President acted upon in giving (indistinct) his reasoning on 238(4)(b) and 238(4)(d) about the fact that there are two fairly chosen scopes and the Commission's proper role is not to intervene in such circumstances.

PN145

In my submission, what going through that reasoning makes clear is that that error of principle was not just an error that was made in passing, it wasn't just one consideration, it was the sole consideration in relation to both reasonableness and fairness and efficiency and in those circumstances, it must be an error of law which means that the Deputy President erred and the decision to dismiss the application should be set aside.

PN146

DEPUTY PRESIDENT COLMAN: But he didn't say that he couldn't issue a scope order if there were two fairly chosen scopes. I don't think - or would that - is that what you contend? I mean, that - I can perhaps understand it if that were the contention that the Deputy President thought that he didn't have a discretion when in fact he did, is that - what do you contend that he felt himself constrained and that it wasn't available to him to issue a scope order in circumstances where there were two fairly chosen scopes.

PN147

MR McCABE: Yes, we do put it that high, Deputy President. I say that arises from a fair reading of the entirety of the reasoning of 238(4)(b), (d) that the Deputy President regraded it not just as a factor but as a requirement but then I think it arises quite expressly at paragraph 163 when the Deputy President says:

PN148

The Commission's proper role under section 238 is to guard against general unfairness, not to pick a winner between two fairly chosen scopes.

PN149

So, in my submission, the only fair reading of what the Deputy President is saying there is that if he were to pick a winner between two fairly chosen scopes, he would be stepping outside the Commission's proper role, that is, committed an error or ‑ ‑ ‑

PN150

DEPUTY PRESIDENT COLMAN: Well, at that point at 163 he's dealing there - that's at the end of his consideration of section 238(4)(d), the reasonableness consideration and to that point he's gone through some - he's considered the other sub‑provisions of section 238(4) and in particular, he has concluded that section 238(4)(b) is not made out.

PN151

So, look, at least on one view of it, he is reaching the end of his consideration of section 238(4) and what he's saying at 163 is all that he's left with is two fair scopes and he chooses not to - you know, he doesn't think it's appropriate to pick a winner when that's all there is, in effect. I mean, that's another possible reading of his decision.

PN152

MR McCABE: Well, yes, Deputy President, I respectfully don't accept that that is an open reading when one (indistinct) the detail as we have just gone to the reasoning in section 238(4)(b) and 238(4)(d) and the Deputy President hasn't considered other matters, it is simply in that reasoning just again and again return to this idea that if there are two fairly chosen scopes, it's not correct for him to intervene.

PN153

So it's not as if this is the first time he's raised this at paragraph 163 and he's saying, 'Well, there's really nothing telling in favour of the appellant's preferred scope and therefore all we're left with as you, Deputy President, says, 'All we're left with is two fairly chosen scopes and I shouldn't pick a winner', really the whole way through he's been warning himself, as he reasons through fairness and efficiency, as he reasons through reasonableness and saying, 'Well, there are maybe some advantages but I need to keep forefront in my mind that there are two fairly chosen scopes and in those circumstances making a scope order would be inappropriate.'

PN154

Again and again, that is the thrust of this reasoning as to 238(4)(b) and (4)(d).

PN155

DEPUTY PRESIDENT COLMAN: Thank you.

PN156

MR McCABE: If I can turn then to the second point that - the second primary argument of the appellants which is about the fact that in any event, even if the respondent - sorry, even if the Deputy President was correct to reason in the way he did about the fact that there are two fairly chosen scopes and that it's not appropriate to intervene because of that, in any event, we say there weren't two fairly chosen scopes because the respondent's preferred scope was not fairly chosen.

PN157

We say that for two reason. First of all, in order to be fairly chosen the scope must indeed be chosen. There must be an objective and rational (indistinct) for determining who was in and who was out according to the chosen discrimen and here the chosen discrimen is whether you perform work for SAPN or whether you perform work for Enerven and there are a large proportion of employees for whom this discrimen just doesn't work because they do work for both and I'll come to the evidence about that momentarily.

PN158

The second reason we say the scope is not fairly chosen is the point I've already mentioned in answering the Vice President's question about fairness and efficiency and that is that even for those employees for whom it is fairly clear because they do mainly do - mainly or solely, do work for either SAPN or Enerven, there is nothing stopping the employer in relation to those employees, simply assigning those employees different work such that they - well, the other one, either SAPN or Enerven and that's not just a theoretical possibly.

PN159

That is something that actually occurs prior (indistinct) agreements and I'll go to the points about that in a moment as well. So dealing first with the evidence (indistinct) who don't seem to work either for Enerven or SAPN, there are a number of statements in evidence about that. The first I'll mention is Gianfranco Verdini who holds the job of senior primary designer who works in the substation design area of the fuelled services.

PN160

His statement is at appeal book page 1320 and he says that he's a longstanding employee of the respondent but over the last two years his work as a designer for substations has started to become more and more Enerven work rather than SAPN work to the point now where it's about, he estimates, a 90/10 split between Enerven and SAPN work. He, for when he goes out - I understand he's mainly a white collar worker but when he has to go out on site he has - he's supplied with both Enerven (indistinct) work wear and he has to make sure he puts the right one on when he goes to a particular Enerven or SAPN job.

PN161

He is confused as to how the proposed discrimen of performing work for SAPN or performing work for Enerven could possibly apply to his employment given he has numerous projects on the go, 90 per cent of them are Enerven, 10 per cent are SAPN and he works on them (indistinct). It's not clear at all how he could be classified as one or the other ion any objective fashion at least.

PN162

Similarly, Liam Milamo gave a witness statement. He is a graduate engineer whose statement is at page 1353 and his engineering work he estimates his work split about 50/50 between SAPN work and Enerven work. Like Mr Verdini, there's no distinction, he's just got projects on the go and he works on them as required. Again, he is confused about how - he gives evidence about how he is confused about how this Enterprise Agreement - his proposed scope would apply to him because he can't determine whether he'd be considered a Enerven worker or a SAPN worker.

PN163

Rick Amadio is another employee, he's a protection engineer. His statement is at appeal book page 1306 and he's in a very similar position. He says over the last five years of his employment he has increasingly been involved in Enerven projects not SAPN projects but he works on both simultaneously and he's also confused as to how it could be determined which agreement would apply to him.

PN164

Michelle Vlahos is a fuel technician. Her statement is at page 243 of the appeal book. She - I understand that she is in the field and she's been told at toolbox meetings to make sure (indistinct) hats and clothing when she's doing an Enerven job or a SAPN job. She recounts that she's been told off for going between a SAPN and an Enerven job on the same day and forgetting to change clothes because she was in a rush.

PN165

She has an email - a work - she has two work email addresses, one for Enerven, one for SAPN. She has a work vehicle with a SAPN logo on it but an Enerven logo magnet in the back that she has to remember to put on the van when she's moving between SAPN and Enerven jobs during the course of a single day. It's entirely unclear how the proposed discrimen could apply to Ms Vlahos and whether if there might have to be different agreements applying to her over the course of a single day.

PN166

Now, this evidence is not contentious, it was accepted in cross‑examination by Mr Douglas Schmidt, a witness for the respondent who is the general manager of Network Management at the respondent. But the reality is he will go to SAPN and Enerven jobs on the same day and importantly, at appeal book page 2347, in cross‑examination he estimated something like 50 to 80 employees might be in this camp, that is, engaged in the swapping from Enerven and SAPN jobs on a regular basis. So this is not an isolated problem affecting (indistinct) this is a significant problem.

PN167

Turning now to the evidence concerning the capacity of the respondent to transfer employees from performing SAPN work to Enerven work, it's important first to emphasise that it's not contested that SAPN is a client of Enerven. SAPN can contract work out to Enerven and there was a significant body of evidence that the work that it contracts out is exactly the same kind of work that SAPN would otherwise perform and that evidence was perhaps most starkly revealed by Mr Schmidt in cross‑examination where at page 2340 of the appeal book where he volunteered that:

PN168

Enerven are employed by SAPN effectively as labour hire to do the same work as SAPN workers do.

PN169

So basically what can happen is that work can be being performed by SAPN, nominally by SAPN one day and nominally by Enerven the next because of the change of contractual arrangements between SAPN and Enerven, keeping in mind that Enerven is, of course, a subsidiary of SAPN, and when that occurs, they are employed by the same entity and may be directed to work for Enerven or SAPN. So, even though, nominally, at a contractual level, the work is now being performed by Enerven, the only change on the ground is that the workers are wearing different uniforms, they are wearing Enerven uniforms, but it's the same people doing the same work.

PN170

Mr Schmidt, in cross-examination at page 2347, accepted that it was not uncommon for workers, mainly for SAPN, to be moved across to perform work for Enerven, as required by the contracts that Enerven received, and Ben Jewell, who was a witness for the applicant - he is an industrial officer for the CEPU - his statement, at appeal book page 1141, indicates that, to his knowledge, with his work with the respondent employees, he has seen employees who previously performed work under the SAPN banner in mentoring services, in NATA, which I understand is the National Association of Testing Authorities, so people who do testing on the electricity statuses, and HV, higher voltage, testing, that are people nominally working for SAPN are then - that work is moved to Enerven, subject to a contract - has been moved to Enerven subject to a contract - and then those same employees are also moved to Enerven, which doesn't really mean anything other than that they wear different uniforms or have different email addresses, but they are still employed by the same people, all their employment conditions are the same and all of their work is exactly the same, except that it's now designated Enerven work rather than SAPN work.

PN171

At least in relation to metering services, that is the installation of new meters, that was uncontentious and accepted by Mr Schmidt in cross-examination at pages (audio malfunction) 2346 of the appeal book that that indeed did happen, that the installation of new meters was moved over - moved in a theoretical sense - to Enerven and all the people who did that work became Enerven employees. So, this is not a theoretical possibility that exists, it is a practical reality.

PN172

Finally on this issue - - -

PN173

DEPUTY PRESIDENT COLMAN: I'm sorry, Mr McCabe, to interrupt, but I just want to check my understanding. These matters that you are addressing now, they go to what error that you say the Deputy President made?

PN174

MR McCABE: What we say is that these matters indicate that the respondent's preferred scope could not be fairly chosen because a fairly chosen scope must have a rational rather than an arbitrary or a subjective basis and a basis whereby employees can be performing their work for the same entity, the same employer that is, in the same place, but the cover of their agreement has altered, is not, in my submission, an objective (audio malfunction) subjective basis for determining scope.

PN175

DEPUTY PRESIDENT COLMAN: You say the conclusion that it was fairly chosen was unavailable, that, effectively, it was legally unreasonable for him to conclude that it was fairly chosen? Is that your contention?

PN176

MR McCABE: That's right. In light of all the evidence that I am going through now, and, of course, there is further evidence in the footnotes to my written submissions to really the same sort of effect, in light of all of that evidence, it was unreasonable for the conclusion to be reached that the scope was fairly chosen.

PN177

DEPUTY PRESIDENT COLMAN: Because that's a very high hurdle. I mean, it's obviously not the same thing as you are now contending before us. We might potentially agree with you as to how we might exercise our own discretion, but that doesn't speak to any error, and so to make out unreasonableness, that's quite a high hurdle, you would accept?

PN178

MR McCABE: Yes, I accept that, but I also suggest that this aspect of the reasoning, at least, was also contrary to principle, in particular the Full Bench authority of CFMEU v Queensland Bulk Handling, which is in the index of authorities. That decision concerned agreements with opt out clauses, which were subsequently prohibited by an amendment to the Fair Work Act.

PN179

But, prior to that, in the decision of Queensland Bulk Handling, a five-member Full Bench expressed the view that agreements with the scope involving an opt out clause were not, in any event, fairly chosen because an agreement which permitted opting out was inimical to the collective bargaining objectives and less than the standard of the Fair Work Act because they found that the Fair Work Act requires a minimum degree of bargaining certainty - and this is from paragraphs 64 to 65 of that decision in particular - and it would be improper to require an employer to bargain in good faith with an employee, reach what they understood to be an agreement, then the employee could, theoretically, the moment an agreement had been made, opt out of that agreement and then start negotiations for a new agreement or take industrial action and so forth.

PN180

It found that that would fatally undermine the bargaining certainty that is necessary and implied from this sort of scheme provided for collective bargaining under the Fair Work Act, and we say in that regard the situation here is analogous to an opt out clause because essentially the ability of the respondent to direct an employee to do work for the other entity and thereby change their coverage amounts essentially to an employer opt out clause where it can choose at its absolute discretion to opt out a certain employee from one enterprise agreement and make them be covered by another enterprise agreement, and there is really nothing they can do it.

PN181

So, the employee faces a very similar situation to what the employer does where there is an opt out clause where it can have no certainty that the agreement they are required to bargain in good faith will ultimately apply to them. To that extent at least (audio malfunction).

PN182

VICE PRESIDENT HATCHER: Mr McCabe, something just cut out there. You said, 'To the extent at least' and I think we missed the rest of that, so can you just - - -

PN183

MR McCABE: I'm sorry. I said to the extent at least that my argument about the fairly chosen scope is an argument about the capacity of the respondent to move employees between the agreements by directing them to perform different duties, at least to that effect, this is an argument that the Deputy President acted upon a wrong (indistinct) because the proposed scope was one that was inimical to the (audio malfunction) regime provided by the Fair Work Act.

PN184

DEPUTY PRESIDENT COLMAN: Why would that be an opt out arrangement? At least in terms of the species of unlawful term that is colloquially referred to as an opt out, that's a term that provides a method by which an employee or an employer may elect, unilaterally or otherwise, not to be covered by the agreement, so an employer opts out or an employee opts out, but one party doesn't opt the other party out, I don't think, so how is this an opt out?

PN185

This is just an employer potentially ultimately having two agreements covering different parts of its workforce and from time to time employees in one part might work in the other part. That happens all the time, doesn't it?

PN186

MR McCABE: Well, no. In my respectful submission, no, because the difference here is that ordinarily to move someone between agreements would require a change to their duties and therefore no doubt a change to their contract in some regard, ordinarily at least. Here there can be no change to the nature of the work, no change to their place of work, no change to anything other than cosmetic changes such as uniform changes or email address changes and, nonetheless, they find themselves covered by a different agreement and they get no say in it.

PN187

I accept what you say, with respect, Deputy President, about the fact that this is not on all fours with an opt out clause, and I don't suggest it is. I suggest there is an analogy that can be drawn and the analogy only goes so far as to say that it shares the quality identified by the Full Bench in Queensland Bulk Handling and that quality is that it undermines bargaining certainty because one party can be bargaining in good faith for what they understand will be the agreement that will cover them and the person they are bargaining with only to find out that once the agreement is made, it is in fact not, because, in the case of an opt out clause, if someone elects to opt out, and in this case the employer has elected to alter their duties such that the agreement no longer applies. Sorry, I shouldn't say 'alter their duties', alter the arrangements underlying their employment such that their duties are now covered by a different agreement.

PN188

The last piece of evidence really relates to that point and that is the cross-examination of Jake Goodwin, who was the workplace relations manager for the respondent. His evidence, the relevant evidence, is at appeal book page 2328 and the relevant cross-examination starts under the heading PN 664 where counsel asked, 'So, if I'm a TSW', which is a trade skill worker, 'and I work on the regulated asset, poles and wires', by which he means the SAPN leased infrastructure, 'would I have got a NERR', by which he means the subsequent Enerven NERR.

PN189

Mr Goodwin's reply is:

PN190

It depends on if you were doing it, if you were working on behalf of Enerven or for Enerven for that work as SAPN is a client of Enerven.

PN191

Then counsel asks:

PN192

So this is a scenario, and maybe you tell me if this isn't enough information, I'm a UMP Enerven employee -

PN193

UMP being utilities management respondent -

PN194

I'm a TSW, my job is to work on regulated assets. Is that enough information to tell me whether or not I should have got a NERR or do you need more?

PN195

Mr Goodwin's response is:

PN196

You need more. It would be what is the nature of the work you're doing, is it part of the competitive process, so the difference between Enerven and SAPN from our perspective is that SAPN is the regulated monopoly, Enerven provides unregulated services to a competitive market for clients.

PN197

That questioning continues over the page. What I say falls from that questioning is that it seems to be what Mr Goodwin is saying is that in order to determine whether someone is covered by the proposed Enerven agreement or the proposed SAPN agreement, you would need to know more than simply what type of worker the worker is, who they are employed by, what sort of work they are doing and which assets they are working on. What you would need to know is essentially what are the underlying contractual arrangements between SAPN and its subsidiary Enerven as to that work, namely, has SAPN contracted that work out to Enerven or not? That is really the crucial matter that you need to know in order to determine coverage.

PN198

My submission about that is that that's not an objective basis for determining scope, it's not a basis that (audio malfunction) the relevant distinctiveness and it's not a scope that provides any certainty to the employees, and it is for that reason inimical to the objectives of collective bargaining under the Fair Work Act.

PN199

If the Full Bench is with me in relation to the fact that (audio malfunction) fairly chosen, then I say there are three consequences of that. Firstly, it undermines the Deputy President's reasoning predicated on the fact that there were two fair scopes and therefore it's wrong to intervene because, if there were not two fair scopes, then, of course, all of that reasoning is manifestly unreasonable.

PN200

The second consequence that falls from this error is that it is itself a powerful consideration in relation to fairness and efficiency for the reasons I have mentioned. It is fundamentally unfair to make employees bargain in relation to an agreement which may cease to apply to them should the respondent choose to change its contractual arrangements such that the work becomes Enerven work.

PN201

Thirdly, it's a powerful consideration in relation to reasonableness as well because it is surely eminently reasonable to make a scope order in circumstances where there is no alternative fairly chosen scope and if the respondent's scope is not fairly chosen, then, of course, the unions' proposed scope is the only fairly chosen scope that exists.

PN202

Those are the two primary arguments of the appellant on this appeal: firstly, the wrong principle about the two fairly chosen scopes and, secondly, the fact that, in any event, the respondent's scope is not fair. If the Full Bench is with me on either of those arguments then it necessarily follows that the whole of the reasoning in section 238(4)(b) and 238(4)(d) was erroneous because, as I've gone to, it was all based on this notion that, one, the respondent's scope was fairly chosen and, two, that meant it was inappropriate for the Commission to intervene.

PN203

My submission is then that the Full Bench should reconsider the matter, respectfully, on the evidence before it in the appeal book and find that section 238(4)(b) and (4)(d) (audio malfunction) and the discretion should be exercised to make a scope order.

PN204

I have already mentioned the two matters that we say in particular go to 238(4)(b), matters of efficiency, and that is the efficiency of having one agreement rather than two, and the fact that there's 15 months of bargaining in relation to the unions' proposed scope.

PN205

There are two matters that we say are very relevant to reasonableness and they are the views of employees about the preferred scope and the fact that there's been one agreement for 20 years or more in relation to the respondent's workforce.

PN206

So, there are four matters, two going to reasonableness and two going to fairness and efficiency, and we say that each of those four matters also constitutes a further error of law because the Deputy President failed to consider all four of those matters in relation to the relevant considerations.

PN207

If I can turn to the first of those in relation to reasonableness, and that is the views of employees, the views of employees, in my submission, are a central consideration in relation to section 238(4)(d), that is, the reasonableness of the criteria. If I can turn to the Full Bench Authority of the United Firefighters Union, at paragraph 53, that is made very clear. The Full Bench deal with a submission from the unions in that case that particular weight should be given to the (audio malfunction) because of, for example, legislative policy imperatives concerning freedom of association. The Full Bench says of that:

PN208

While we generally agree with that submission, it requires some qualification. The power to make a scope order is predicated on disagreement between bargaining representatives. The discretion to resolve that disagreement is to be exercised as provided for in section 238(4) and (4A). While those provisions do not assign priority to the views of employees, in applying the provisions it is necessary to have regard to the overall context. The legislative scheme supports collective bargaining principles and the Fair Work Act encourages freedom of association in collective bargaining. It may be implied from the legislative scheme that the collective choice of employees is significant. It must be said, however, that while weight should be given to the views of employees, it may be that a proper construction of the matters specified in a particular case may make it appropriate to make a scope order contrary to the views of employees.

PN209

What I say the Full Bench is saying there is that it is a matter of implication from the scheme of the Act as a whole itself that particular weight should be given to the views of employees. Now, that, of course, is not always a decisive consideration. It will not be the case that a scope order will always be made in accordance with the views of employees, there may be particular matters in an application that ultimately weigh against that, but, ordinarily, the views of employees will be given particular weight.

PN210

That is reinforced by a subsequent Full Bench decision of Australian Workers' Union v BP Refinery, which deals in detail with this issue at paragraph 29 through to paragraph 32 and in strong terms reinforces that the views of employees is a central consideration both in relation to reasonableness, 238(4)(d), and the overall discretion that the Commission retains in relation to issuing a scope order.

PN211

Importantly, at paragraph 30, the Full Bench explicitly says that the views of employees is a consideration of the Peko-Wallsend kind, that is, (audio malfunction) consideration which it would be an error not to consider. More importantly, at paragraph 44 of that decision, the Full Bench conclude about this as follows. They say:

PN212

In accordance with the approach laid down in United Firefighters, prima facie, if the group proposed by the union is reasonable it should have been preferred unless there was some good reason to prefer the two groups proposed by the company over the single group preferred overwhelmingly by the employees.

PN213

So, the Full Bench goes so far as to expressly say in that decision that, prima facie, it will be reasonable to make a scope order which is in accordance with the views of employees, unless, of course, there are other factors that ultimately weigh against that.

PN214

VICE PRESIDENT HATCHER: Mr McCabe, this matter was heard before the Deputy President in November or December last year.

PN215

MR McCABE: Yes.

PN216

VICE PRESIDENT HATCHER: Has there been further bargaining since then?

PN217

MR McCABE: I understanding that there are continuing to be meetings in relation to the two proposed Enerven and SAPN agreements and that the union continues to attend those in accordance with good faith bargaining obligations.

PN218

VICE PRESIDENT HATCHER: All right. Did I understand you to submit earlier that your union clients are of the position that the company is not bargaining in good faith with respect to the wider scope the subject of the initial notices issued in 2020?

PN219

MR McCABE: We say that the fact that there was the initial NERR that was issued and the respondent issued that without comment and then negotiated on that basis for 15 months is an important point that ought to have been considered, yes.

PN220

VICE PRESIDENT HATCHER: No, no, I'm really raising with you a different proposition, that is, do you say that since the company has in 2021 introduced the Enerven notices, since that time, has the company been bargaining in good faith for a single agreement as with the scope of the original notices or is it now refusing to discuss that or negotiate it?

PN221

MR McCABE: There are no discussions occurring as to a single agreement is my understanding of the evidence. There is only discussion about two agreements.

PN222

VICE PRESIDENT HATCHER: Right. Yes, sorry, go on.

PN223

MR McCABE: In this matter, the employees were given no consideration at all in relation to reasonableness. There was a brief mention of the fact that the employees favoured the scope the subject of the scope order, but that was only in the context of considering whether the applicant's scope was fairly chosen. There was absolutely no consideration of it in relation to reasonableness and, in my submission, that constitutes a further error of law that the Deputy President committed because the terms of both the UFU Full Bench decision and the AWU Full Bench decision, which I have taken the Full Bench to, could not be clearer in saying that this is a mandatory consideration and it's not just a mandatory consideration but a consideration that, prima facie, is evidence of reasonableness, subject to other factors.

PN224

It ought to have been the starting point of the Deputy President's reasoning in relation to reasonableness, but, in fact, what we find is that there is no consideration at all of this consideration under that heading and instead there is, as we have seen, simply a lengthy (audio malfunction) of the fact that because there were two fairly chosen scopes, it is not proper for a scope order to be made.

PN225

VICE PRESIDENT HATCHER: Mr McCabe, in the event that we got to the stage of redetermining the application ourselves, would we need to give parties an opportunity to give updated evidence about the bargaining?

PN226

MR McCABE: I'm sorry, you cut out there. My apologies, Vice President.

PN227

VICE PRESIDENT HATCHER: In the event that we got to the stage of redetermining, that is, speaking hypothetically, we found error and redetermined the application for ourselves, would we need to give the parties an opportunity to produce updated evidence about the progress in bargaining since the evidence received by the Deputy President?

PN228

MR McCABE: In my submission, that would not be necessary. It would be open to the Full Bench to be satisfied of section 234(4)(b) and (4)(d) without there being further evidence of the progress of bargaining, but I certainly wouldn't oppose that course if it was felt to be necessary by the Full Bench.

PN229

VICE PRESIDENT HATCHER: Did the evidence before the Deputy President make clear the proposition you articulated in response to a question I asked, namely that the company is effectively refusing to meet and bargain for an agreement with the wider scope?

PN230

MR McCABE: I understand that it did. I might need a moment to provide you with references in relation to that, but my understanding is there was detailed evidence about that in the industrial officer's statements about exactly how the bargaining unfolded.

PN231

VICE PRESIDENT HATCHER: Well, because of the time, we will have to move to Mr Denton fairly shortly, but can you send us a note about that in due course?

PN232

MR McCABE: Certainly.

PN233

VICE PRESIDENT HATCHER: And, if necessary, I will give the respondent an opportunity to respond to your note.

PN234

MR McCABE: Certainly.

PN235

VICE PRESIDENT HATCHER: Do you have any further submissions, Mr McCabe?

PN236

MR McCABE: Just really, I think, one short further point. I think that (audio malfunction) what I say is another important issue really about the views of employees not being taken into account. The final point is just a minor one that also goes to reasonableness and that is that in another of the Full Bench decisions that has dealt with scope orders, Tasmanian Water, which is in the index of authorities, it was considered to be an important consideration that the scope order being sought simply sought to maintain the status quo. That is also the case here; it is simply sought to maintain the status quo that had existed for 20 years, and that should have been accorded significant weight in relation to the reasonableness as well.

PN237

I think that does conclude my submissions, save to mention that I had planned to address the Full Bench in relation to fairness and efficiency, but I think I have already really done that in response to your questions, Vice President, save I simply mention that the notion that there are efficiencies to be gained from one agreement rather than two, prima facie, for which there is also Full Bench authority, and that Full Bench is the Australian Workers' Union case from 2014 at paragraphs 26 and 28.

PN238

Other than that, I think that deals with my submissions, thank you.

PN239

VICE PRESIDENT HATCHER: All right, thank you, Mr McCabe. Mr Denton?

PN240

MR DENTON: Thank you, Vice President. I will start by just adopting the written submissions that were filed on 22 February. They fairly comprehensively deal with the issues of law as the respondent sees them, so I won't regurgitate any of their contents and what I might do this afternoon is simply reply to a few of the matters that have been raised between my learned friend and the Bench.

PN241

If I can commence with this questions that was raised by the Vice President in the outset about utility in this appeal. I will start by referring to what is really, in my reading, the operative reasoning of the Deputy President below, which is at paragraphs 162 and 164, which commence on page 2170. Neither of these paragraphs have been subject to challenge by the appellants, but after citing the Full Bench observations in BRB Modular, Anderson DP said:

PN242

Considered overall, it is not reasonable to make the order sought given the impact on the extended bargaining. The reasonable course is to permit the merits of the respective scope propositions advanced in these proceedings to be the subject of further bargaining by the representatives. This decision can inform that process and he says, to paraphrase BRB Modular, I am satisfied that bargaining can continue and it remains open to the parties to continue to consider the scope of the agreement in that overall context.

PN243

At 164 he refers to the fact that he has

PN244

found no unfairness and, as bargaining for the contested scope propositions has commenced consequent to the second NERR, an order would compromise rather than promote fair and efficient bargaining over the respective merits.

PN245

VICE PRESIDENT HATCHER: The unions say that your client is, in fact, not bargaining in good faith or bargaining at all for an agreement with the wider scope. What do you say about that?

PN246

MR DENTON: To the extent that there's some allegation that my clients have been breaching the good faith obligations since this decision came down, I must say that's the first I've heard of that.

PN247

VICE PRESIDENT HATCHER: Not just since the decision, but, as I understand what was being put, and maybe we should await Mr McCabe's note, but I understand what was being put is that since the 2021 notices were issued, the company has, in effect, broken the bargaining with two groups and is bargaining for two agreements, it is not bargaining or discussing or negotiating or considering a single agreement, as was the case with the original scope. What do you say about that?

PN248

MR DENTON: It needs to be understood that the dispute below included two applications. One was a scope order, one was a good faith bargaining order application, and the sole allegation that was made in that context was that the issuing of the NERR, the new Enerven NERR, constituted capricious and unfair conduct (indistinct). There was no allegation that they were refusing to meet or refusing to consider things. That was never - - -

PN249

VICE PRESIDENT HATCHER: I understand that and there's been no appeal from that aspect of the decision, obviously, but the paragraphs of the decision you have just taken us to seem to proceed upon the presumption that scope is still an open issue, the parties are still negotiating in good faith about it and eventually they will come to an outcome and the Commission should not intervene. So, there seems to be a premise of that approach that, in fact, bargaining is still going on about scope in good faith. I am just asking you whether, from your client's perspective, that is the case, that is, whether the company is bargaining in good faith about not just the substantive issues but the scope issue or whether, as Mr McCabe says, the company has just broken the thing into two parts and is going down two tracks.

PN250

MR DENTON: I understand that there's parallel bargaining on foot. I can't go any further into exactly or precisely where the claims are at as of now. I just don't know.

PN251

VICE PRESIDENT HATCHER: Does the evidence disclose that there is ongoing bargaining about scope?

PN252

MR DENTON: Yes, that's precisely what, as I have just taken the Bench to, Anderson DP found to be one of the significant discretionary matters, that this is a fresh matter that is being disputed as of September 2021 and ultimately he considered it wouldn't be reasonable to distort that bargaining process in circumstances where it was relatively new. As has already been discussed this afternoon, the history of bargaining under the appellants' preferred scope has not been successful, to put it one way, and Anderson DP said, 'Well, in circumstances where a fresh dynamic has been added to that disputatious, lengthy, unsuccessful bargaining', in his discretion, he considered it reasonable to effectively let that play out in the immediate term.

PN253

VICE PRESIDENT HATCHER: Does the company accept that, in effect, it still has good faith bargaining obligations in relation to the scope of the initial agreement as sought in 2020?

PN254

MR DENTON: I think there's no avoiding that. I think the Act imposes that. The Deputy President addressed this at paragraphs 206 and 208. This is at page 2177. When I say 'addressed this', I mean the issue of (indistinct) bargaining. He has made the finding at paragraph 208:

PN255

In the current matter, it is relevant that the legally enshrined bargaining rights of the larger collective -

PN256

that is the whole workforce under the initial NERR -

PN257

remain unaltered.

PN258

He was alive to this issue, Vice President, and, as he notes at paragraph 206:

PN259

They will retain the rights inside that extant bargaining under the whole of the workforce NERR to achieve whatever they may be able to achieve under that bargaining process.

PN260

This was really one of the points that was made below, that what the appellants, what the joint unions want to achieve, they can achieve under that first NERR, that's still available to them. What they were seeking to do through a scope order is to prohibit the company or Enerven from achieving what it wants to achieve under the second NERR by effectively making - well, not effectively - by making the Enerven NERR scope identical to the SAPN NERR.

PN261

VICE PRESIDENT HATCHER: Has there been any protected industrial action in relation to or which might be said to arise out of the issue of scope?

PN262

MR DENTON: I don't know the answer to that. I don't know. But what the Deputy President's reasoning is dealing with here is saying that what will be achieved by the making of a scope order is that the scope for both sets of parallel bargaining would be the same, but it does not result in one set of bargaining would then be required to cease, and clearly with that finding and that reasoning, it leads back to what he says at 162 and 164, which is that it would compromise rather than promote efficient bargaining to that extent, and the observation of the Full Bench in BRB Modular encapsulate precisely what the Deputy President thought was appropriate in this case.

PN263

It is with those findings in mind, and really they all appear to be unchallenged findings and unchallenged reasonings and fairly simple propositions that one must question the utility in the grounds of appeal here because, even taken at their highest, they don't really displace the Deputy President's ultimate conclusion, which was, well, bargaining to date has not progressed well, what we have is a fresh and lawful dynamic that's been introduced, that may yield results or it may not yield results, but, in his discretion, he considered that, in all the circumstances, it would not be reasonable to distort the bargaining process.

PN264

If I could deal then with what were framed as the two primary arguments by my learned friend today. The first, it was said that the Deputy President proceeded on a wrong principle, that is, where there are two fairly chosen scopes, the Deputy President considered himself prohibited from making the scope order, and that is said to infect the entire reasoning. That was described by my learned friend today as really the only reason that led the Deputy President to find that it would not be reasonable to make a scope order.

PN265

For the reasons or the passages I have just taken you to, that is wrong. There were other operative reasons on the Deputy President's mind as he stepped through in his decision, including those four significant discretionary matters which have been rolled up by the appellants in their written submissions as apparently one. They are four individual discretionary matters, but Deputy Colman's observation on this was entirely correct, which is that Anderson DP simply does not say that he found that if there were two fairly chosen scopes, he would be precluded from making an order. If that's what he said, the decision would obviously be a lot shorter.

PN266

One would assume that it would be par for the course that the competing scopes in any scope order application are fairly chosen, that is, the parties come on the basis that bargaining has commenced, presumably under a fairly chosen scope, and then the applicant to the scope order seeks to persuade the Commission that their scope is also fairly chosen. The reason why the focus of the Enerven NERR scope finds its way into the decision in the manner that it did is because that is precisely how the unions framed their application below, that is, it squarely sought to attack the fact that there's no distinction, this is arbitrary, other matters (indistinct) today and that's why it finds its way into the decision in the manner that it does.

PN267

VICE PRESIDENT HATCHER: I understand the point you have just made, but I thought one sort of slight variant of the appellants' argument was that the Deputy President erred in principle by not approaching the matter on the basis of the purpose of a scope order is to quell a controversy about scope, that is, even if there's two fairly chosen competing coverage propositions, nonetheless, as a matter of principle, you should approach them basically trying to, as it were, sort out the controversies, that is, you should be picking a winner and not, as the Deputy President said, you should be avoiding picking a winner. What do you say about that?

PN268

MR DENTON: Two things to say about that, Vice President. The first is that the orthodox principles stated at paragraph 163, that's been applied routinely by the Commission and I say that's the correct way it should be approached. The second is that it does first require the Commission to be satisfied of all the matters in subsection (4), (a) to (d), prior to the discretion being enlivened and, in this case, clearly the Deputy President did not get there, so his discretion was not enlivened in the end.

PN269

VICE PRESIDENT HATCHER: I thought Mr McCabe said the ResCo decision referred to in 163 wasn't about a scope order at all, it was a different context.

PN270

MR DENTON: This is a matter that I have addressed in my submission, Vice President, where the submission that's being put forward by the appellants is that the phrase 'fairly chosen' in section 238 means something different to the phrase 'fairly chosen' in section 186.

PN271

VICE PRESIDENT HATCHER: I don't think they are saying it means something different. I thought their proposition was that the Commission's function under 238 was different, that is, fairly chosen may have the same meaning, but even if the two competing propositions are both fairly chosen, the whole point of the scope order is to put the thing to bed by picking one of them, so that the issue is over and the parties can bargain on one proposition or the other. I thought that Kwinana decision came fairly close to saying that, albeit it was talking about it in the context of two competing scope applications.

PN272

MR DENTON: In some factual scenarios such as - I think it might have been the AWU case, I won't specify - but some of the Full Bench cases that are relied upon by the unions have come before the Commission because of an impasse that has been created by reason of scope. In those circumstances, yes, it may be appropriate to pick a winner if the two parties have come to the Commission saying, 'We can't move forward unless we know what the scope is.' That is an entirely different scenario to what was before Anderson DP, as he highlighted in his reasons, which is this is a fresh matter and that this is a matter that has not been the subject of the protracted, litigious, disputatious bargaining in the past and, in any event, I think it would be wrong to impose on the Commission a mandatory outcome under section 238 when the function of the Commission is inherently discretionary.

PN273

VICE PRESIDENT HATCHER: That might lead to the proposition that, you know, at a certain point of time, if no agreements have been reached and on the proposition that the factual matrix may change, there might be a further application for a scope order which would then proceed on the basis that after a fair chance at dealing with this, there has been an impasse.

PN274

MR DENTON: In the present circumstance, Vice President?

PN275

VICE PRESIDENT HATCHER: Yes.

PN276

MR DENTON: Yes, the unions would not be precluded from brining a further application down the track based on how the matter has progressed down the track.

PN277

VICE PRESIDENT HATCHER: And if they say your company is refusing to bargain about an agreement with the wider scope, then again that could be the subject of a bargaining order application.

PN278

MR DENTON: Exactly, Vice President, correct.

PN279

VICE PRESIDENT HATCHER: All right.

PN280

MR DENTON: In relation to the second primary argument, as it was phrased today, that the Enerven scope - I think it's been put that the Enerven scope was not fairly chosen. As cited in my written submissions, the determination of whether a scope is fairly chosen has been described many times by this tribunal as an inherently discretionary decision and, as we know, the appellants make no challenge to the Deputy President's discretion below.

PN281

There has been no challenge to any of the findings made by the Deputy President that the two businesses have operational, organisational and geographical distinction, nor is there any challenge to the finding that there was a rational basis as well in the commercial imperative for the selection of the scope. None of that has been challenged.

PN282

I don't understand today there to be any challenge to the discretion through my learned friend's submissions, certainly not to the House v The King standard. What we did hear today for the first time was perhaps a challenge to the decision being legally unreasonably. As was observed, that's a very high hurdle and nothing has really been pointed to close to that.

PN283

We also heard something that was not raised below, which is that this would effectively be an opt out clause somehow, relying upon the decision of QBH. In my submission, there is no analogy to an opt out clause here. What is being bargained for is two potential agreements within the one entity. The QBH case, which was a relatively decisive Full Bench in that case, was that employees were allowed to select not to be covered and then there would be a cohort of employees who were uncovered by any agreement and then could start taking industrial action and the like and that would lead to disharmony. Here the employees will be covered either by one agreement or the other, so it's an entirely different consideration.

PN284

As to the issue about whether there's confusion amongst employees who perform work for them both, I have dealt with that in my written submissions. It was considered by the Deputy President and dealt with in a manner that was open to him.

PN285

The final point I will make just in relation to the submissions that were made saying that this would promote fairness or efficiency and the issue of confusion, almost all of those submissions that were put forward by the appellants today would be in conflict with the principles that were quoted by the Deputy President at page 2158 of the decision. These are principles that were summarised as to how to approach a scope order application. None of these principles have been challenged, and we see at page 2158, principles 6 and 7, that:

PN286

Perceived difficulties arising from two agreements on-site is largely speculative, probably little more than an inconvenience rather than a real impediment.

PN287

And at point 7:

PN288

Evidence which is said to support the making of a scope order which is speculative, hypothetical or pre-supposes outcomes of bargaining is unhelpful to the task of determining whether a scope order is made.

PN289

In my respectful submission, all the matters that have been relied upon by the unions, both at first instance and on appeal, about fairness, efficiency, confusion and the like fall squarely within that category.

PN290

Unless there are any other matters, those are my submissions.

PN291

VICE PRESIDENT HATCHER: Thank you. Anything in reply, Mr McCabe?

PN292

MR McCABE: Just a few short points, if I may, Vice President. One important matter I wish to clarify is that my learned friend Mr Denton suggested that the Deputy President had considered as one of his reasons that the proposed scope proposed by the respondent might bring a fresh dynamic to bargaining and that might break the deadlock. We reject that that was a consideration that the Deputy President had. There is only one reference in the judgment to any reasoning of that kind and that is at paragraph 188 when the Deputy President is dealing with the good faith bargaining order and not dealing with the scope order at all.

PN293

So, for my learned friend to suggest that that was a factor that weighed against making the scope order has to be rejected, in my respectful submission, because there is just no basis for suggesting it and (audio malfunction) mentioning that all of the evidence from the respondent's witnesses was about the advantages of their preferred scope, was all about the increased efficiencies it would bring because they would be - because they wanted the Enerven workforce, given it competes in the open market, they want that workforce to be able to be agile, I think was a word that was used a lot by the respondent's witnesses, and flexible so that they can compete in the open market, while the SAPN side of the business obviously doesn't.

PN294

That was overwhelmingly the reason that was put forward by the respondent's witnesses as the reason why this had been introduced, which, of course, leaves the question open: why wasn't it introduced at the start of the bargaining given that need of agile and flexible existed at that time as well?

PN295

The only other matter mentioned is that there were competition law reasons to require different industrial arrangements for Enerven and SAPN. Of course, there are competition law requirements about the ring fencing that is required between Enerven and SAPN which requires them to wear different uniforms and not have access to documents and so forth, but it is not at all clear why competition law requirements required them to have different industrial agreements, and there was certainly no evidence that there had been some relevant change to competition law between June 2020 and September 2021, so I don't think it is appropriate to suggest that the Deputy President's reasoned on that basis because there's absolutely no mention of it in any of his relevant reasoning.

PN296

Another matter that I wanted to mention was just to confirm, Vice President, what you put with respect to Mr Denton, which was that it isn't our argument that fairly chosen means two different things in different places. It is simply our argument that, of course, section 186 and section 238 are aimed at completely different purposes and to use an authority on one to justify a conclusion on the other is clearly an entirely erroneous approach.

PN297

The next matter I wish to address was the suggestion that one matter that the Deputy President relied upon was that there wasn't a sufficient impasse in bargaining about scope for a scope order to be appropriate. In my submission, the way section 238 is set out tells against that being a consideration because sections (1) and (3) make clear that there is a process that needs to be gone through to ensure that the parties have talked to each other and there is no way to resolve their differences before they are allowed to make a scope order. The Deputy President accepted that the appellants had met all of those preconditions and done all that they could to ensure that that process had been gone through.

PN298

Of course, the way the respondent conducted itself in relation to these negotiations was not to suggest that maybe a different scope would be appropriate, it was - and there was significant evidence about this - it was to simply issue a NERR by email to Enerven employees without any notice to any of the bargaining representatives that that was going to happen and then immediately proceed to set up separate bargaining meetings for the two streams, Enerven and SAPN, that would (audio malfunction) for future bargaining on that basis, so with great respect, for the respondents to say that that is not a sufficient impasse - - -

PN299

VICE PRESIDENT HATCHER: Just to be clear about this, there is now no bargaining going on for the terms of a single agreement? Is that your position?

PN300

MR McCABE: Yes, that is my understanding. I have just had a moment to reflect on that and I will address that in the note you have requested, Vice President.

PN301

VICE PRESIDENT HATCHER: All right.

PN302

MR McCABE: But my reflection on the evidence is that essentially, I think, the position taken was that the extant bargaining was taken to then be really for the SAPN only agreement bargaining, bargaining was set up for the Enerven agreement, and so then both - so what my learned friend said about parallel streams of bargaining I think, with respect, is correct, that there were parallel streams but they weren't for a single agreement but for two agreements, which were the SAPN agreement and the Enerven agreement, but I think the great majority of attention since the issuance of the second NERR has been on the Enerven agreement and I understand a very large number of meetings, many hours, have occurred in relation to the Enerven agreement and very little has occurred in relation to the SAPN agreement, although I think there has been some meetings. I will set all that out in more detail with references to the evidence in the note.

PN303

With great respect, it is somewhat cute, in my respectful submission, to suggest that there isn't a sufficient impasse and that it is appropriate for the parties to be left to bargain about scope when so far the respondent's actions show no intention to bargaining about scope at all. In my submission, the answer to that is that once the union, as they have here, has gone through the necessary preconditions to establish there is no way - that they have had that discussion and there is no - that there is an impasse, that there is a disagreement about the scope, then once the Commission is satisfied that is all that occurred, then the Commission needs to consider the other factors in section 238(4) and assessing the sufficiency of the impasse is no part of that.

PN304

Also in that regard, I might mention that, of course, if the applicant had left it too long to make an application for a scope order, it may well be said that that reduces the fairness and efficiency of bargaining and making a scope order because bargaining has now progressed on the basis of there being separate scopes. So, really, it is, in my submission, appropriate (audio malfunction).

PN305

Another matter that was put by Mr Denton was that our argument seeks to impose upon the Commission a mandatory approach to scope orders where they must make it. I do want to clarify that that, of course, is not our argument. We are not suggesting that whenever there are two fairly chosen scopes, the Commission must make an order. Of course, all the criteria need to be satisfied and in any particular case it may not be appropriate, but the point is that reasons need to be identified for why it is not appropriate, and the reason must not just be there are two fairly chosen scopes and they should be left to negotiate about that. It needs to be something more than that.

PN306

The only matter I understand my learned friend to say that there was more than that in the Deputy President's reasons was the notion of the fresh dynamic breaking up the deadlock in bargaining and, as I have said, there is no basis for thinking that did form any party of the Deputy President's reasoning about the scope order (audio malfunction) the issues at first instance.

PN307

Finally, in relation to the question about why it is unreasonable for the scope to have been found to be fairly chosen when it wasn't, this point is made in my written submissions, but I didn't emphasise that in my submissions today, and I just want to mention that the evidence that I took the Full Bench to, in particular the evidence about all the workers who just have an intermingling of SAPN and Enerven work on a daily basis, none of that was given any consideration at all. There is a brief consideration of the fact that people have to swap clothes and so forth between jobs, but there is no consideration of the fact that some people don't even do that, they just sit at their desk as an office worker and work on SAPN and Enerven projects simultaneously.

PN308

That's a really important point that needed some sort of answer and it just is absent from any consideration in the Deputy President's reasoning whatsoever and, in my submission, that part of the reasoning in particular amounts to unreasonableness.

PN309

That's all I had in reply, unless there are any questions, thank you.

PN310

VICE PRESIDENT HATCHER: How long do you need to supply the envisaged note?

PN311

MR McCABE: I would have thought two to three working days would be sufficient.

PN312

VICE PRESIDENT HATCHER: All right, so midday on Wednesday and then, Mr Denton, can you provide any reply by the end of next week?

PN313

MR DENTON: Yes, Vice President.

PN314

VICE PRESIDENT HATCHER: All right, if there's nothing further, we thank counsel for their submissions. We will, subject to the receipt of the notes, reserve our decision and we now adjourn.

ADJOURNED INDEFINITELY [4.06 PM]