PN1

THE COMMISSIONER: Good morning parties, it's Commissioner Matheson. I'll start with the appearances. Mr Slevin.

PN2

MR A SLEVIN: If the Commission pleases, Slevin, initial A. I appear with Ms O'Halloran from the PSA and Ms Chalmers from the PSA. I seek – I should say, I seek permission to appear. I haven't appeared in the matter previously, and I don't think permission has been given for my side of the ledger to be represented legally. So, I make the application for permission to appear on the basis that the issues raised are complex and representation by counsel will assist in the efficient resolution of the matter to be heard this matter. If the Commission pleases.

PN3

THE COMMISSIONER: Thank you Mr Slevin. I'll revisit the issue of representation shortly. Mr Haddrick, appearances for the respondent please. You're on mute, Mr Haddrick.

PN4

MR R HADDRICK: Yes, thank you, Commissioner, may it please the Commission. H-A-D-D-R-I-C-K initials R W, counsel. Just outside screenshot is Mr McLean, initials J, also of counsel. We appear for the respondent, LiveBetter Services Ltd and we are instructed by Advices Lawyers.

PN5

THE COMMISSIONER: Thank you. So, with you, I understand, we've got Mr McLean, Ms Town, Ms McLaughlan.

PN6

MR HADDRICK: I suppose, because my memory escapes me, if I haven't previously - - -

PN7

THE COMMISSIONER: Mr Haddrick, you're just breaking up. I understand, so, you confirm the appearance – sorry, I'm just got to stop you Mr Haddrick, cause you're dropping in and out a little bit with your Wi-Fi connection. I'm not sure of the other parties are having that same issue, yes, I can see they're nodding. I'm just wondering. I will pull you up, so if I can't understand what you're saying, or following what you're saying I will pull you up if I need to revisit your connectivity issues, if it persists, but just to repeat, I understand the appearances. So, you're appearing for the respondent, Mr Haddrick and with you is Ms McLean, junior counsel, is that correct?

PN8

MR HADDRICK: Mr McLean, yes, that's correct.

PN9

THE COMMISSIONER: Mr McLean, and instructing you is Advices Lawyers.

PN10

MR HADDRICK: I should also – I think you may have (indistinct) that's correct, and Ms Nicki Town is the instructing solicitor who should also be on another line. Then my client, represented by Ms Narissa (indistinct), is also another (indistinct).

PN11

THE COMMISSIONER: Right, I can hear you, I can get through the appearances. Mr Haddrick it's going to be a little bit problematic I think when we get to the evidence, because what I was going to propose to do is first of all, I'll deal with the issue of representation briefly. I think we should be able to get through that, and I've already granted permission for the respondent to be represented, having heard and read the submissions and being satisfied that the matter is invested with complexity and that granting permission to be represented would enable me to deal with the matter more efficiently.

PN12

Now, parties, taking into account the complexity of the matter, it may enable the matter to be dealt with more efficiently if both parties are represented by a lawyer. Mr Slevin makes that submission. Mr Haddrick, does the respondent have – well Mr Slevin, I can probably confirm that. Does that accord with your submission?

PN13

MR SLEVIN: It does, Commissioner, thank you.

PN14

THE COMMISSIONER: Mr Haddrick, does the respondent have a different view to that?

PN15

MR HADDRICK: No, it equally applies to us. I'm not sure whether we covered the same question of permission to be represented back at a further direction. My recollection was that we did, but I don't hold that recollection particularly strongly.

PN16

THE COMMISSIONER: Yes.

PN17

MR HADDRICK: So, for the avoidance of doubt, I nonetheless make the same application for exactly the same reason as my learned friend identified.

PN18

THE COMMISSIONER: Yes, on that note, I will grant permission for both parties to be represented pursuant to section 596(2)(a) of the Fair Work Act. Now, I understand the parties have a copy, or are in the process, imminently, of getting a copy of the digital court book prepared by my chambers. So, it would be of assistance if you'd like to direct me to a document appearing in the court book if you could point me to the relevant page, that would also assist the other party. I'd also note that I have received the list of authorities provided by each party.

PN19

Now, we have one witness today and in terms of the order of proceedings, a provisional view is that it may be more efficient to hear from Ms Marat first and then we can move straight into submissions starting with the respondent, and then the applicant. I'm going to give each party an opportunity to say anything they wish to say further that arises from that before adjourning and reserving my decision. Does anyone have any concerns with that proposed course of action, or an alternative proposal, Mr Slevin? No?

PN20

MR SLEVIN: No, Commissioner.

PN21

THE COMMISSIONER: Mr Haddrick?

PN22

MR HADDRICK: I think that's an eminently suitable way of proceeding, Commissioner.

PN23

THE COMMISSIONER: All right. Well, on that note, we'll hear from Ms Marat and we'll go from there.

PN24

Okay, Ms Marat, you're about to give evidence to the Commission and what my Associate is going to do is administer an oath or an affirmation. If you are taking an oath, you will need to have a copy of your religious text with you and affirmation is fine. What would you like to do Ms Marat?

PN25

MS MARAT: An affirmation is fine, thank you.

PN26

THE COMMISSIONER: Ms Associate.

PN27

THE ASSOCIATE: Thank you. Ms Marat state your full name and address.

PN28

MS MARAT: My name is Narissa M Marat. My address is (address supplied).

<NARISSA M MARAT, AFFIRMED [10.07 AM]

EXAMINATION-IN-CHIEF BY MR HADDRICK [10.07 AM]

PN29

MR HADDRICK: Shall I just proceed with the usual questions, Commissioner?

PN30

THE COMMISSIONER: Yes please, Mr Haddrick.

*** NARISSA M MARAT XN MR HADDRICK

PN31

MR HADDRICK: Ms Marat, you've prepared an affidavit in these proceedings, haven't you, or a statement in this proceeding?‑‑‑Yes, I have.

PN32

And that statement is dated 3 June, isn't it?‑‑‑Yes, it is.

PN33

3 June 2022, and the contents of that statement are true and correct to the best of your knowledge and belief?‑‑‑Yes, they are.

PN34

That's the evidence of this witness, Commissioner.

PN35

THE COMMISSIONER: Thank you. I'll mark that as R1. Mr Slevin.

EXHIBIT #R1 WITNESS STATEMENT OF NARISSA M MARAT DATED 03/06/2022

CROSS-EXAMINATION BY MR SLEVIN [10.08 AM]

PN36

MR SLEVIN: Thank you, Commissioner.

PN37

Now, Ms Marat, you refer to a number of people in your statement at paragraph 4. I wonder if you can help the Commission with the roles those people undertake. Let's start with Frances Fury. You describe that person as a Coordinator Disability Services. What does a Coordinator Disability Services do?‑‑‑So, as the name states, they coordinate disability services in a particular region, area or group of employees located in one similar location.

PN38

So, when you say they coordinate a group of employees, what does that involve?‑‑‑So, they're responsible for service provision, ensuring the quality of service provision in those areas as well as supervising staff in those areas.

PN39

In terms of supervising staff, is that organising rosters and the like?‑‑‑They have an element involved in the rosters, but we have a separate team that looks after rostering services.

PN40

Who is that team, is that the HR team that you're head of?‑‑‑No, that's the rostering team.

PN41

Where is the rostering team located?‑‑‑So, they're a disbursed group across our geographic footprint.

*** NARISSA M MARAT XXN MR SLEVIN

PN42

You then refer to Ms Fury's immediate manager being Leah Mulharn, as an Area Manager. What does an Area Manager do?‑‑‑So, the Area Manager is the next level manager to the coordinator and they're responsible for managing a larger area of disability services.

PN43

Again, that's an operational role, is it, the management there is related to the provision of the services as you described for the coordinator role?‑‑‑That's correct.

PN44

Then you refer to Nigel Grier, the Head of Supported Independent Living. What's Mr Grier's position entail?‑‑‑So, he's the operational head of our Supported Independent Living Services.

PN45

That's an operational role, is it, to ensure that the services are provided in accordance with the various arrangements that govern those services. Is that correct?‑‑‑That's correct.

PN46

Right. So, those three people are all operational people. My apology, that's a phone in my office. So, being operational people, do they have a role in determining the terms and conditions of employment of the people they supervise?‑‑‑The terms and conditions of employment of people employed at LiveBetter are governed by the awards, the relevant awards that they're employed under. The Supervisors are the Operational Supervisors, do have an element of input, only at recruitment and in relation to the positions that they hold within the organisations. So, as they're the operational experts, they absolutely have an element of involvement in the terms as they fit within the awards.

PN47

Do they offer people employment?‑‑‑No, they don't.

PN48

I have no further questions, Commissioner, thank you.

PN49

THE COMMISSIONER: Thank you. Mr Haddrick.

RE-EXAMINATION BY MR HADDRICK [10.12 AM]

*** NARISSA M MARAT RXN MR HADDRICK

PN50

MR HADDRICK: Just one question Ms Marat. You explained that your team is somehow different to the team that does the rostering. Can you please just explain in a bit more detail to the Commission how those two sub-units of the organisation interact?‑‑‑Yes, so, I mean I guess the rostering team sit as a corporate service to the organisation, so they're not part of operations; they sit separate from operations. They are wholly and solely responsible for rostering out front-line service across LiveBetter and as opposed to the HR team, that sits also as a corporate service, but they're separate units, they're managed by separate managers and they have separate responsibilities and roles across the organisation.

PN51

One final question, what is roughly the total number of employees that are employed by LiveBetter Services?‑‑‑It's approximately 1600.

PN52

No further questions, Commissioner.

PN53

THE COMMISSIONER: Thank you, and thank you Ms Marat for giving your evidence to the Commission. That concludes your evidence. You are free to observe the rest of the proceedings, if you so wish, given you're here. Thank you.

<THE WITNESS WITHDREW [10.13 AM]

PN54

THE COMMISSIONER: Now parties, usually what I would do after hearing evidence, is afford the parties the opportunity for a brief adjournment before they make their submissions. However, I'm not sure if you require that or not, but Mr Slevin, what do you say?

PN55

MR SLEVIN: I don't require an adjournment, thank you, Commissioner.

PN56

THE COMMISSIONER: Mr Haddrick?

PN57

MR HADDRICK: Nor do I.

PN58

THE COMMISSIONER: Well, let's push on with it then. We'll start with you Mr Haddrick and then I'll turn to Mr Slevin.

PN59

MR HADDRICK: Thank you very much, Commissioner. Do you have a copy of our authorities that we sent through yesterday, Commissioner?

PN60

THE COMMISSIONER: Yes, I do.

PN61

MR HADDRICK: I'll be referring to particular items from the list of authorities there and I'll e asking you to mark up certain items as I go through with my oral submissions. If at any point in time, the connectivity breaks up, it may be a little bit difficult for me to identify that as I'm in the flow of my submission.

*** NARISSA M MARAT RXN MR HADDRICK

PN62

THE COMMISSIONER: Yes.

PN63

MR HADDRICK: So, maybe the Commissioner's Associate might just perhaps wave her arms because I will then see that and I will realise that that's a point where I should pause until we resolve the issue.

PN64

THE COMMISSIONER: Yes, okay.

PN65

MR HADDRICK: In terms of my oral submissions, I'm effectively going to break it down to five points. The first point will be in respect of the factual background. The second point will be in respect of the loose-leaf frame where it's set out in the Fair Work Act and the Transitional Act. The third point I'll be talking about or making submissions in respect of will be what is agreed between LiveBetter and the state of New South Wales. The fourth point will be the constitutional argument, which is obviously identified in part in the two sets of submissions. The fifth point will be what we've described as the jurisdictional steps.

PN66

I should, for completeness, also so the transcript shows this, read and rely upon my outline of argument which was filed on or about 13 May 2022, my submissions in reply which were filed on 13 June 2022 and of course, we can take it that I'm relying on the statement of Ms Narissa Marat.

PN67

The first point in terms of the factual background, I don't think I need to go into great details. Have you had an opportunity to read out written submissions, Commissioner?

PN68

THE COMMISSIONER: Yes, I have read the submissions filed, thank you.

PN69

MR HADDRICK: So, I won't bog us down on the perfunctory matters that I think are common between the parties, how we get here, what the dispute is over and how we got to a jurisdictional conjecture.

PN70

THE COMMISSIONER: Yes.

PN71

MR HADDRICK: So, I might just jump forward to go to the question of the legislative framework. Can I take you to please, item 7 on our list of authorities, please?

PN72

THE COMMISSIONER: Being the Fair Work Act, part 638.

PN73

MR HADDRICK: Yes, that's it. Now, I've highlighted aspects of this extract of the Act that I want to draw to your attention. I will traverse it through at a reasonable pace. I'm seeking to set out the context in which a copied state award is legislatively governed by the machinery that's provided and the totality of that machinery. So, commencing on page 194 of the Act is of course, the heading in terms of part 6-3(a) transfer of a business from state public sector employer to a national system employer.

PN74

Over the page on page 195, we see the commencement of division 2 of copying terms of state instruments when there is a transfer of business and section 768AD where you'll see that there are four pre-conditions there which have to be invoked so that there is a transfer of business before we get to the question of whether a copy of the state instrument applies. In respect of the three options in subsection 1(d), subsection (3) invoked and you'll see that over the page on page 196 (3). This is a case where the state employer, the old state employer has, in the last two sentences of subsection (3), has outsourced the transferring work to the new employer or an associate entity of the new employer. So, that being the case, I don't imagine that to be in contest. The four elements of the previous section, that is section 768(AD) are satisfied that this is a transferring business.

PN75

We then move forward to Division 3 on page 197. I draw your attention to the guide in section 768(AL), the second paragraph. The transferring of those terms and conditions is achieved by creating a new instrument called a copied state instrument and then some key words 'for the transferring employee'. As you will see as we go on, this expression 'for the transferring employee' is attached to throughout legislation because it's an instrument, an artifice of law, created for that particular employee or other employees, as are invoked by its operation. It says there in the second paragraph, that there are two species of copied state instrument. For our purposes, it's the copied state award, as opposed to the copied state employment agreement that is relevant.

PN76

Subdivision (b), then sets out some general rules in respect of copied state instruments, be they awards or agreements that are carried forward by an operation of the Fair Work Act. There is the standard provision in section 768(AG):

PN77

A person must not contravene a term of a copied state instrument by transferring an employee that applies to that person.

PN78

So, obviously the key provision that requires observance of the award in respect of an employee that it all but covers and applies to.

PN79

We see over the page, on page 198, it's section 768(AH), we'll see there, the two species of the copied state instrument are identified there, and of course, as I said, we are only concerned with the copied state award for today's purposes. The definition of a copied state award is effectively set out in 768(AI) and subsection (1):

PN80

(a) If immediately before the termination time of a transferring employee a state award (that is the original state award) was in operation under the state industrial law, and

PN81

(b) Covered the old state employer and the transferring employee with a copied state award for the transferring employee is taken to come into operation immediately after the termination time.

PN82

So, that's the statutory description of the species of industrial instrument. Over the page on page 199, at subsection (2), you'll see reference there to the terms:

PN83

The copied state award is taken to include the same terms as were in the original state award immediately before the termination time.

PN84

There is a further provision in section 768(AJ), which sets out what a state award is. Nothing much turns upon that for the purposes of today's submissions. I then ask you move forwards to page 202. On page 202 of the legislation, section 768(AM) then sets out when does a copied state instrument apply to a person. Obviously, copying in the traditional language of carber (indistinct).

PN85

A copied state instrument for a transferring employee applies to the transferring employee or an organisation, that it covers the employee or the organisation is in operation and no other provision of the Act applies or has effect that the instrument does not apply to the employee.

PN86

They're the relevant provisions for the purposes of today's submissions.

PN87

We move forward from page 202 to page 203. There's the corresponding section that sets out not when it applies, but when it covers. So, section 768(AN) and you'll see there, under subsection (1):

PN88

The copied state instrument for a transferring employee, (note that the continuing expression for a transferring employee, again, the statute speaks to a direction relationship to that particular employee, not simply at large) covers the employee and the newer employee in relation to the transferring work for an employee's re-employment time.

PN89

We then move forward to page 205 of the legislation bundle. Section 768(AO), when is a copied state instrument in operation? Subsection (1):

PN90

The copied state instrument for a transferring employee comes into operation immediately after the employee's termination time.

PN91

Then, importantly in subsection (2), when does the copied state award cease to operate:

PN92

A copied state award for a transferring employee ceased to operate at the following time:

PN93

Unless (b) applies, the end of the period, the default period, that is five years or such longer period as is prescribed by the regulations starting on the day that the employee's termination occurred.

PN94

So, that's where the five year period, the continuing operation of the copied state award legislatively comes from, that particular provision.

PN95

We then skip forward to page 207 – sorry, page 209 – sorry 207, I was right the first time. 207, we then arrive at the division that outlines the inter-relationship between a copied state instrument and the significant chunks of the Fair Work Act, be it the provisions relating to the National Employment Standards, modern awards and enterprise agreements. You'll see sections 768(AQ) sets out the interaction between the NES and the copied state instruments, effectively given the NES primacy over any provisions that are inconsistent in the copied state award.

PN96

We then move forward to page 109 of the bundle, Interaction With Modern Awards. Section 768(AS) modern awards and copied state awards:

PN97

Whilst a copied state award for a transferring body covers the employee and is in operation, the modern award does not cover the employee.

PN98

So, there is a legislative deactivation of the operation of a modern award upon the particular employee if they are someone that are covered by the copied state award. So, you cannot be in a situation where the two apply at the same time.

PN99

We then move forward to page 212. On page 212, and this is important, what I'm about to say in respect of our first set of submissions. You would have seen that I made some submissions in respect of the mechanism for variation of copied state awards for a transferring employee. So, on page 212, commencing in division 5, we have the commencement of the machinery that the Act provides that allows a variation or termination, and there's those two words, variation and termination. You see that in the guides to the division in the square box in 768(AV).

PN100

You then see the mechanism under 768(AW), variation in limited circumstances. A copied state instrument for a transferring employee cannot be varied except under, and for today's purposes, section 768(AX) or (d), (indistinct) part 3 of schedule 11 to the Transitional Act, the Transitional Provisions and Consequential Amendments Act 2009.

PN101

We then move forward to page 213, over the page, and this is, we say, an important provision for the Commission to carefully consider. This is subsection (1) of section 768(AX), and it is when variations can be made and the things that must be considered. We draw your attention particularly to the contents of subsection (1)(a), (b) and (c). So, there is a vehicle provided by the legislation:

PN102

Which permits the Commission upon either its own motion or the application of the parties to remove terms that the Commission is satisfied are not or will not be capable of meaningful operation or to vary those terms so that they are capable of meaningful operation, or remove an ambiguity or uncertainty in the instrument, or enable the instrument to operate in a way that is better aligned to the workplace arrangements of the new employer's enterprise.

PN103

We ask the Commission to consider carefully the operation of those provisions. The Parliament has provided a device there so that parties and the Commission itself, can tailor-make, using my words, the terms of a copied state award so that they fit the industrial context in which the transferring employee finds themselves after the act of transferring. It is quite central to our second argument, that is our jurisdictional steps argument, that regard is had to the contents of that particular section because the Parliament has set out machinery for doing that. There isn't simply a rule of interpretation, or rule of thumb which simply twists the language of the pre-existing state award so it kind of fits the context and the circumstances. There is machinery provided for doing that, and I've just taken you to it.

PN104

In subsection (2), you'll see what I said before, the variation under subsection (1) can be done by the Commission of its own motion or initiative, or by a person who is, and this is the key words, is, or is likely to be covered. So, the application can be brought prior to the point of transferring, that's why it says it was likely to be covered, or is, that is the after the point of transferring. That becomes relevant for another section that I'll take you to in a second.

PN105

Over the page on page 214, you will see the matters that the Commission must take into account. There's a performer's list of non-controversial statutory criteria there, but of course the view is the employees and the employer and of course, (g) the public interest must be taken into account.

PN106

We move forward to page 215. We see in subsection (6) there, when variation may be made.

PN107

A variation may be made under subsection (1) in relation to a copied state instrument of a transferring employee before the copied state instrument becomes into operation and is likely the instrument will come into operation, and before the employee is a transferring employee or is likely that the employee will become a transferring employee.

PN108

On its face, reading that section, it suggests that you can only bring an application for a variation before the act of transfer occurs, but that's why I took you two pages earlier, on page 213, to subsection (2) and I took you to the language in subsection (2)(b) on application by a person who is or is likely to be covered by a copied state instrument. So, when you read those two sections together, those two subsections together, subsection (2) and subsection (6) of the same section of the Act, you can bring an application to vary a copied state award both before an employee is subject to the provision, subject to the copied state award or once they are subject to a copied state award.

PN109

Then, moving on, on page 215, we have the commencement of the machinery for the termination in limited circumstances. It's not relevant for today's purposes; I simply point out that there is mechanism for the termination of a copied state award and of course if a copied state award is terminated, then a modern award will arise in its operation because of the provision I took you to previously.

PN110

Over the page on page 216 is simply a division that provides the machinery for Commission orders, in respect of coverage, which allows the Commission to – and that goes over on page 217 and in respect of coverage orders, it's not something we need to drill into today, but simply, that's where the machinery is found.

PN111

We then move to page 220. Page 202 in division 7 provides the Commission orders about consolidating copied state instruments. We'll see in the first paragraph of the explanatory section there, section 768(BC) starting from the third line:

PN112

It achieves this by allowing the Fair Work Commission to make an order for the copied statement instrument for a particular transferring employee which is also a copied state instrument for one or more other transferring employees, or non-transferring employees.

PN113

And that would be obvious, because when one employee comes across to us or any ex-public servant comes across to a national system employer you don't want to have to bring individual applications for every single individual, you bring it in respect of one person and make the order – the decision applicable to all the employees who are in exactly the same circumstance.

PN114

We move forward seven pages to page 227. Division 8 sets out special rules applicable to copied state instruments. I'll just draw your attention to the second paragraph in 768(BJ). Division B deals with the case where copied state instruments for transfer of employee does not have a term about settling disputes about matters arising under the instrument. In that case, the model term prescribed by the regulations is taken to be a term (indistinct). That's not applicable in our circumstances because as it is common ground in our submissions, there is a series of terms or there is a series of clauses that deal with disputes under the relevant copied state instrument applicable today.

PN115

But you'll also see further down subdivision (E) modifies particular provisions exactly in relation to copied state instruments and subdivision (F) modifies provisions of transition mark in relation to copied state instruments. Of course, this division needs to be read concurrently with the provision I took you to before in respect of the mechanism for variations. So, there are statutory modifications that we're about to very quickly go through, but that is coupled side-by-side with a deliberate process to achieve further modifications where the statutory modifications don't address the particular ambiguities or operational niceties in that particular workplace, referring to the three subsections that I took you to before in terms of the criteria when a variation could occur.

PN116

We then move forward to page 237, so quite a number of pages forward. 237 sets out some statutory modifications to this Act. Where is says modifications to the operation of this Act, so you will see there, for instance, in item 1, in division 2 of part 2-9 payment of wages, wherever the term modern award is used, one could also use the term copied state award for a transferring employee. I note the composition of that; it's not just copied state award, it's copied state award for a transferring employee.

PN117

So, obviously that table provides that machinery throughout the Act, so as to provide much of the necessary detail to effectively mimic, for the purposes of a copied state award, provisions that will be applicable to modern awards, or in other cases, enterprise agreements in respect of copied state instruments.

PN118

You'll see over the page, on page 239, there is a list of modifications of the Transitional Act, so that's not the Fair Work Act, that's obviously the Fair Work Transitional Provisions and Consequential Amendments Act 2009. Then you'll see over the page on page 240, a further modification is at the top and then further down, modifications of the Transitional Act and regulations for copied state instruments more generally. That's what I wanted to draw your attention to in respect of the Fair Work Act.

PN119

I then want to take you to item 8 on my list of authorities and that is the Transitional Act. Do you have that handy, Commissioner?

PN120

THE COMMISSIONER: Yes, just bear with me. Yes, I have it open.

PN121

MR HADDRICK: Now, on page 75, there's only one reference I wish to take you to there, and that is item 13(1) references in division 2(b) stating instruments to state industrial bodies. It is central to the dispute on the constitutional issue here today, as to whether the Fair Work Commission can and be substituted for the Industrial Relations Commission of New South Wales, which is the expression used in clause 25 of the relevant state award which becomes the copied state award, when you get an effect after a transfer of employee.

PN122

Subsection (1) says:

PN123

Subject to item 2, if the term of a division 2B state instrument is expressed to confer a power or function on a state industrial body, that term has effect as if references in it to the body were instead references to the Fair Work Commission.

PN124

And we're going to come back to the operation of that particular item in terms of the constitutional construction argument. That's the legislative framework that I wanted to take you to. The next thing I wanted to take you to is what is agreed to. Can I ask you to take the statement of Ms Marat, have that handy please, Commissioner.

PN125

THE COMMISSIONER: Yes. It appears at 103 of the court book.

PN126

MR HADDRICK: Yes, thank you, I've got a hard copy. Can I take you to the – now the agreement between the state of New South Wales and LiveBetter Services runs for about 459 pages and it talks about sorts of things that are irrelevant to today's purposes, property transactions and that sort of stuff, individual contracts for service agreements. But the bits that are relating to the employment of transferring employees, we have extracted, as extracts and attached to Ms Marat's statement.

PN127

Can I take you first, to annexure A. In the definitions section of what is formerly known as the implementation and sale agreement and which I would both orally and in my submissions, describe as the agreement. That is the definition of employee commitments, that you'll see there, and you'll see that that definition is referrable for the contents of schedule 9 of the agreement.

PN128

Can I take you forward to annexure B, please? Have you got that Commissioner? Schedule B, is the definition of three words, Relevant Industrial Instrument, all capitals. I'm drawing you attention particularly to the words 'means', not includes:

PN129

Any state award or enterprise agreement in operation and applicable to the employees immediately prior to the completion date.

PN130

And then goes on to provide an inclusive part of the definition which sets out certain state awards are included. That definition – but it's the opening words that are germane to the dispute today, that is:

PN131

Any state award or enterprise agreement in operation and applicable to the employees immediately prior to the completion date.

PN132

Over the page on annexure C, we have clause 13.7. Clause 13.7 and 13.8 on the following annexure need to be read together. They're the two clauses whereby the entity called the purchase and the company, so it's wouldn't be in dispute that we, LiveBetter, are both the purchase and the company, and the vendor is the state of New South Wales. The agreement permits a structure whereby we can purchase, but we can set up a third party which is the company, so it provides for that machinery, if we wanted to elect to operate that way. Nothing turns on that for today's purposes.

PN133

Clause 13.7 sets out the content and form of a communication in writing from the vendor, that's the state of New South Wales, manifested by the Department of Family and Community Services, as a unit of public administration to each employee in relation to the effect of the employee's transfer order. That's a reference, of course, to an order made pursuant to sections 13 and 14 of the New South Wales Enabling Act that both parties have referred to in our written outlines, and it sets out a process for the issuing of such a communication.

PN134

Over on annexure D, you'll see that the commitment that's LiveBetter made to the State of New South Wales, what it agreed to, is, it says:

PN135

The parties agreed to a formal communication with employees regarding the terms and conditions of employment of the transferring employees from completion being substantially in the form set out in schedule 10, the transfer terms letter, and further agree that, on or around the date of this agreement, the purchaser will agree with the vendor for content of any variations required for that transfer terms letter to form a communication in writing for the purchase to the employee in relation to the following things:

PN136

Acknowledging the Employee Commitments.

PN137

Which has a capital E and a capital C, which means it is a defined term that I took you to in Annexure A, which of course refers back to the contents of schedule 9. And it also refers to:

PN138

Guaranteeing those Employee Commitments in the period on or after completion; and

PN139

Issued through the vendor, any such communication.

PN140

So, we have agreed with the State of New South Wales who entered this agreement to issue a thing called a transfer terms letter, we wanted variations for that letter. We also had to enter into discussions to agree to the variations of that letter. Then, given the transfer terms letter is defined, we might just skip forward to annexure F.

PN141

Annexure F is the contents of the transfer terms letter, that pursuant to the agreement, we have agreed with the state of New South Wales, would be issued to the persons who are prospective transfer employees. I particularly wish to draw your attention to the first paragraph under the heading Will My Employment Arrangements Change? For completeness for the transcript's completeness, I just read that paragraph:

PN142

Your existing employment terms and conditions will transfer and transfer to and will be recognised by the new employer company as applying in your employment with the new employer company from your transfer date. These terms and conditions will remain unchanged for at least the period of the employment guarantee unless you agree, or they are varied consistent with your terms of employment.

PN143

However, you will remain covered by your current award, at all times during the guarantee period, and afterwards, subject to the provisions of the Fair Work Act 2009, Clth.

PN144

If we go back to annexure E, which is schedule 9, and of course, the definition of Employee Commitments is directly referrable to the contents of schedule 9. There are two subsections or subparagraphs here that I want to draw your attention to.

PN145

From completion the purchaser acknowledges and agrees.

PN146

The key words there 'an agrees', because that will be relevant to the constitutional issue that we are discussing a bit later on under the heading of Same Terms:

PN147

And undertakes to procure that:

PN148

(a) The company (that's us), must continue to employ each transferring employee on the terms and conditions of employment applying immediately prior to completion.

PN149

That is, we have positively committed to the state of New South Wales, that we will continue to apply the same terms and conditions to Ms Drinkwater and all other persons who became transferring employees, as those terms and conditions that were 'applying immediately prior to completion', and immediately prior to completion was the terms of the state award.

PN150

We then move down to subparagraph (b) and under the heading of Bound by Relevant Industrial Instruments. Of course, that's the defined term that I took you to before earlier in the document.

PN151

(a) The company (that's us) is covered by the relevant industrial instruments which apply to the employment of a transferring employee, immediately before completion, and will remain covered by the relevant industrial instruments in respect of the transferring employees at all times during the guarantee period, and thereafter, subject to the provisions of the Fair Work Act 2009 and the remainder of schedule 9.

PN152

So, there the provisions, the actual provisions of what was agreed between LiveBetter and the state of New South Wales which become central to my submissions later on in terms of, with the constitutional argument. In fact, it's the next on my list of things to take you to.

PN153

Can I ask you to next go to item 6 in my bundle of materials please, which is the extract from the Acts Interpretation Act.

PN154

THE COMMISSIONER: I have it open.

PN155

MR HADDRICK: Thank you, Commissioner. I'm simply taking you to section 15(A). It is suggested against us, and I set this out in point 4 in our reply submissions, that what we are trying to do, is invite the Commission to frankly, put itself in the shoes of the High Court and strike down the legislation of the parliament, that's unconstitutional. That's not our position; that's not the submission we make. We make a submission that this Commission, like any other statutory body has a positive duty to appropriately and correctly construe the legislation in which it operates under. If that legislation is incorrectly construed, then parties aggrieved by that can run off to a chapter 3 court and seek prerogative relief or constitutional relief, because a jurisdictional error has occurred. But the primary obligation before we get to that point is that every statutory body, every public official in exercising public powers must properly construe and properly interpret the powers that they are given.

PN156

So, the Acts Interpretation Act gives us great assistance here in what should be done if we find a section of legislation or an instrument appears to go beyond the legislative power of the Commonwealth to enact. So, for the purposes of the transcript, I simply recall that section 15A, says that:

PN157

Every Act shall be read and construed, subject to the constitution and so as to not exceed the legislative power of the Commonwealth to the intent that where, in the enacted realm, would, but for this section, have been construed as being in excess of that power. It shall nevertheless be a valid enactment to the extent to which it is not in excess of that power.

PN158

That is the correct way of describing what is often described in shorthand, read down to be constitutionally consistent. So, I will simply use an expression, read down, referring to this principle.

PN159

The next aspect that I want to take you to, is anthology number one please, in my bundle of material. This is what is usually what is referred to as the private arbitration case, more correctly known as Construction Forestry Mining and Energy Union v Industrial Relations Commission & Anor [2001] vol 203 CLR commencing at page 645. Can I take you please to page 657 of the decision, and it's a decision of – well, it's the plurality but it's all seven Justices of the High Court, so one doesn't need obviously to compare against any others. Page 657, commencing in the balance of paragraph 26 there, the top paragraph on the page.

PN160

I've simply highlighted the following passages which I invite the Commission to have regard to when you reserve your decision as to what the guiding principles. From the third line it says:

PN161

Moreover, an arbitrated dispute resolution provision will be invalid to the extent that it purports to confer judicial power on the Commission or any one else[20]. For present purposes, it is sufficient to note that a power to make a binding determination as to legal rights and liabilities arising under an award or agreement is, of its nature, judicial power.

PN162

So, that's the basal constitutional principle. I don't understand that to be in contest. I then take you down to paragraph 30 and 31 have been set out in full or in both – in fact they've been set out in my original written outline and in my reply outline. In my outline, we have bolded certain parts of those particular paragraphs. Again, I don't understand it to be in contention that not only must there be an agreement, but there must be an agreement as to who is the person or body who is undertaking the arbitration function.

PN163

I simply, for the purposes of my oral submissions, draw your attention to the language throughout those two paragraphs to the words 'agreed'. You'll see in paragraph 31:

PN164

If the parties have agreed to submit disputes as to their legal rights and liabilities for resolution by a particular person or body and to accept the decision of that person as binding on them.

PN165

Again, the second last sentence of paragraph 31:

PN166

In the case of private arbitration, however, the arbitrator's powers depend on the agreement of the parties, usually embodied in a contract, and the arbitrator's award is not binding of its own force.

PN167

I'm drawing your attention to that, because the seven Justices of the High Court have said that the arbitration agreement, as they say, is usually embodied in a contract and it will become evident, that it's my submission that this is a factual enquiry that this Commission is to examine and the High Court has here said, certainly at the commencement one looks to the contract. But we're going to look at references to the general law in regard to the One Tree decision shortly, but here you have a specific species of general law, juristic device and that is a contract.

PN168

So, the High Court encourages as to the question of whether an agreement has been arrived at, one looks to that which is usually embodied in a contract. Of course, we say, the agreement with the State of New South Wales between LiveBetter and the State of New South Wales is indeed such a contract.

PN169

I then take you down to paragraph 34 please on the same page, page 658:

PN170

The parties to an industrial situation are free to agree between themselves as to the terms on which they will conduct their affairs. Their agreement has effect according to the general law.

PN171

I pause and ask you to appreciate that that is a particularly important observation by all seven Justices of the court. Their agreement has effect according to the general law. There will be a question of deeming or statutory deeming that I'll make submissions in respect arising from the One Tree appeal decision, but I'm inviting you to contrast what all seven Justices of the High Court say here, and how that is fortified by a comment made by the three justices or two of the three justices in the One Tree Full Court decision, which I'll take you to shortly.

PN172

So, it's important in my respectful submission, that weight to be placed upon what the judges say when they say their agreement has effect according to the general law and:

PN173

To the extent that an agreement provides in a manner that exceeds what is permitted either by the Constitution or by the legislation which gives the agreement effect as an award, it cannot operate with that effect.

PN174

So, you see there, an affirmation that the agreement or the legislation that gives operation to an agreement, if it doesn't – if it is constitutionally impermissible on the face of its construction, then one has to read it down consistent with section 15(a), so that it is constitutionally permissible. Again, at the bottom of paragraph 34 you will see:

PN175

But the underlying agreement remains and the validity of that agreement depends on the general law, not the legislative provisions which give it effect as an award.

PN176

So, you see there again, case law authority that one looks to, the actual, factual agreement, as between the parties to determine whether there was indeed, agreement, that the matter be arbitrated and also, who is the body or entity who is doing the arbitrating. That's the private arbitration case that I wanted to draw your attention to.

PN177

The next thing I wanted to draw your attention to, is – where is it – the second One Tree decision, that's number four on my list of authorities, please Commissioner.

PN178

THE COMMISSIONER: Sorry?

PN179

MR HADDRICK: Do you have that, Commissioner?

PN180

THE COMMISSIONER: Yes, I have that.

PN181

MR HADDRICK: Thank you. Can I take you – it's a decision One Tree Community Service Inc v United Workers' Union & Anor [2001] of FCAFC 284 FCR commencing at 489. Can I please take you to commencing at page 512 please?

PN182

THE COMMISSIONER: Yes, I'm on the page. It starts at the balance of paragraph 77.

PN183

MR HADDRICK: Thank you, Commissioner. I'm drawing you attention to starting on paragraph 79 please. You'll see through here the language and this is the decision of, I think it's of Justices Flick, Bromberg and Kerr. Paragraph 79 refers to the voluntary assumption which is the language their Honours used throughout their reasoning. They are the majority in this decision. This or course was an appeal of the One Tree primary decision, which was a decision of Justice Macharacha if I've pronounced his name correctly. He's a Queenslander and not come across his Honour.

PN184

Paragraph 79 refers to voluntary assumption of that binding obligation. You'll see in the second sentence there:

PN185

The voluntary assumption of that binding obligation by One Tree is contended by the UWU to constitute the relevant agreement or consent of One Tree. That voluntary assumption by One Tree together with the consent of the UWU implicit in its initiation of the cl 77 dispute resolution procedure...

PN186

In our case, of course, 25 dispute resolution procedure.

PN187

is, in our view, sufficient to provide the requisite consensual foundation to support the conclusion that private arbitration rather than the exercise of judicial power is the basis upon which the FWC is to hear and determine the dispute raised by the UWU under cl 77.

PN188

In paragraph 80, their Honours go on to say:

PN189

Whilst the primary judge made observations with which we respectfully disagree, in particular (at [90]) that 'the FW Act achieves a statutorily mandated consent' and (at [94]) that 'the effect of Part 2-8 is that One Tree is deemed to have consented to the EA including cl 77', the findings made by the primary judge as to the conduct of One Tree are sufficient to establish the voluntary assumption by One Tree of the binding force of the EA including the binding force of cl 77.

PN190

What I ask you to take from that particular paragraph is three things. First of all, the affirmation of the voluntary assumption of the parties. Second of all, the Full Court of the Federal Court has positively disagreed with the primary judge's use of a device which he describes as a statutorily mandated consent, and also, the other expression where One Tree is deemed to have consented to the EA, including clause 77.

PN191

The question that you have before you as a consequence of this authority is that you have to look at the facts as opposed to the construction of the interpretation of the agreement and some legislation that latches onto the agreement, post the transfer time. I'll explain why that's the case with reference to the actual language of the agreement – well, I'll do it right now. That is why I took you to the language of the agreement, to the precise words of the definition of employee commitments – if I can just find where I placed it.

PN192

If you go back to the annexure A of Ms Marat's statement. The employee commitment is referrable to clause 9 and then over the page on annexure B you'll see that relevant industrial instruments is referrable to:

PN193

Any state award or enterprise agreement in operation and applicable to the employees immediately prior to the completion date.

PN194

Any picking up – if it becomes our friend's – the applicant's contention that you look at the original agreement and then you see that it's done in the context of legislation that's going to become applicable once a transfer has been affected, that is not the proper factual question that this Commission ought to consider. Because of the precise language in the way in which the entitlement is crafted in the definition. The words 'and applicable' merely apply to the completion date. That is the relevant industrial instruments that we have consented to, to be applicable are the ones that were applicable immediately prior to the completion date, not from the completion date and going forward.

PN195

You see that again in terms of annexure E and you'll see that in sub (a), you'll see those words applying immediately prior to completion. So, if I come back to the One Tree decision on page 512, paragraph 80, I was making submissions in respect of – this is not a case where you will methodologe your mode of reasoning. So, as you take the agreement, you look at the statutory environment and you arrive at the conclusion that there is a statutorily mandated consent that has been expressly disavowed by the majority in One Tree, you make a factual finding.

PN196

If you go over the page on page 513 of that One Tree decision, you will see in paragraph 85:

PN197

Those factual findings sustain the objectively ascertainable conclusion that One Tree made a voluntary election to have the binding force of the EA (including that of cl 77) applied to it. In other words, in circumstances where One Tree could have conducted its business without being legally bound by the obligations imposed upon an employer by the EA, One Tree knowingly chose to structure its business in a manner which would subject it to those obligations.

PN198

I'm inviting you to focus your attention to the expression 'factual findings' there, which is consistent with my submission that it is a factual finding that this Commission needs to make, and the test there is it's an objective ascertainable conclusion as set out there in paragraph 85.

PN199

In paragraph 86, you'll again see the expression 'the consensual foundation evident from those facts' in the first and second line there. So, that is the fact finding process that's required by the Commission to determine whether indeed LiveBetter have consented to not just arbitration, but arbitration by the Fair Work Commission. It was not simply a matter of deeming, we've agreed to arbitration by the New South Wales Industrial Relations Commission and item 13(1) of the Transitional Act substitutes that, with the Fair Work Commission. So, together, they are deemed to be consent; that's not the process of analysis that's required by this Commission. It is the positive finding of fact. That's why I take you to particular parts of the agreement which set out in black and white, what indeed was agreed or was not agreed.

PN200

I take you over to page 514 of the One Tree decision, again please, Commissioner. The submissions I just made are fortified by the contents of paragraph 89, and I'll read that out for the transcript:

PN201

We accept One Tree's contention that if consent is sufficient, the requisite consent must be actual, rather than deemed by the statute. [So, there's that point I just made.] One Tree is correct to contend that if Parliament could simply legislate to deem or mandate consent to a private arbitration, the Ch III restrictions (founded as they are on the important doctrine of the separation of judicial power) could be readily usurped. However, although the primary judge (wrongly in our respectful view) spoke in terms of the FW Act deeming consent, his Honour appreciated that consent could not be mandated by the statute. At [91], the primary judge adverted to the need for consent to be voluntary rather than 'mandatory'.

PN202

I just want to pause there and emphasise that sentence. The consent must be voluntary rather than mandatory, and that's why we say you look to the document sets out the voluntary terms of the parties and that's the agreement that I've already taken you to.

PN203

The primary judge's findings as to One Tree's conduct which his Honour regarded as manifesting its consent, were clearly findings made about voluntary rather than involuntary conduct.

PN204

So, in this case, the fact finding exercise having occurred, a view had been formed by the primary judge and fortified by the Appeal Court that the finding of fact is properly made on an objective basis. That's the One Tree decision I wanted to take you to.

PN205

Can I now take you please to the Qantas No 2 decision, which is number 2 in my list of authorities, Commissioner.

PN206

THE COMMISSIONER: Yes, I have it.

PN207

MR HADDRICK: Do you have a copy of my friend's outline there as well, please Commissioner?

PN208

THE COMMISSIONER: Yes I will, bear with me.

PN209

MR HADDRICK: I'll just find it myself. I'll just take a glass of water.

PN210

THE COMMISSIONER: So, it's page 7??.

PN211

MR HADDRICK: Thank you, Commissioner. In our learned friend's submissions, they say commencing at paragraph 13 – the second limb of our argument is the jurisdictional steps argument, as the Commissioner read our outline, it's a rather straightforward argument that certain jurisdictional steps have not occurred, therefore the jurisdiction of this Commission, quite apart from the arbitration point, is simply not invoked, because those steps have not occurred.

PN212

So, in response to the – the applicant has identified the Qantas No 2 decision, that is Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (No 2) [2020] FCA 951 and set out certain propositions that you're invited to agree to, that are said to be drawn from that particular decision. You'll see there that in paragraph 13 (a), (b), (c), (d), (e) and (f) there's reference to paragraphs 61, 62, 65 and 70 of the Qantas decision.

PN213

And in support of that, it is asserted, for instance, in paragraph 13(a), that:

PN214

... each of these requirements must be construed with a degree of flexibility consistent with the industrial context in which the two clauses were drafted.

PN215

And in reference to that is paragraph 61 of the Qantas decision. It is our submission that that is not a fair reading of the decision of the Full Court, is too wide to describe to assert, as it's said there in the subparagraph:

PN216

In very summary form, it is concluded that each of these requirements must be construed with a degree of flexibility consistent with the industrial context...

PN217

Having regard to the authority that's identified. If you go to the Qantas decision and we start on page 465 please. On page 465, just above paragraph 50, there's a heading Mandatory Pre-Conditions or Pre-Requisites. So, the Federal Court and Justice Flick has considered relevant to this case, certain submissions put by the two airlines, Qantas and Jetstar, that certain steps have not occurred, so as to invoke the jurisdiction of a Commission to hear the dispute. You'll that in paragraph 50, in the last line the assertions about steps that have not occurred or not present so as to enliven the jurisdiction is reference to a matter or a dispute before the Commission.

PN218

You'll see in this case in paragraph 52, that his Honour Justice Flick articulates that the Engineer's Association have effectively put two slightly different submissions before the court. In paragraph 52, they seem to vary between the submission that:

PN219

there are no textual indications that strict compliance is required.

PN220

through to a submission that:

PN221

a particular clause is ambiguous such that it should be read as providing, if the matter cannot be resolved through the steps set forth in the particular clauses or otherwise, rather than if the matter cannot be resolved by the previous steps...

PN222

In paragraph 53, his Honour goes on to say that:

PN223

The former argument, with respect, is not an argument that there need not be compliance with the relevant clause – rather, it is an argument that there need be compliance but not 'strict compliance'. Rephrased in that manner, it is concluded that substantial compliance with these provisions is sufficient.

PN224

That's the submission that's put in respect of the first argument.

PN225

His Honour goes on to say in paragraph 54:

PN226

Greater difficulty is expressed with the latter argument.

PN227

At the start of paragraph 55, he says:

PN228

Difficulty is expressed in reaching a conclusion that there need not be any compliance – be it strict or substantial compliance.

PN229

So, his Honour does not, on proper reading of this decision, go on to decide whether strict or substantial compliance has been achieved in a general sense about jurisdictional steps. In the following pages, the balance of page 466, and then over the page to 467, can I take you to 467, please Commissioner?

PN230

THE COMMISSIONER: Yes.

PN231

MR HADDRICK: In paragraph 59, 467, you'll see there that there is further recitation of the:

PN232

... the occasion on which there was an initial 'meeting and conferring on the matter'

PN233

Which of course are words that are drawn from the relevant dispute resolution clauses in the relevant industrial instrument. There is a further question about what is mean by 'further discussions'. You'll see there in the third dot point in paragraph 59.

PN234

In paragraph 60, Justice Flick goes on to say:

PN235

But such conclusions say nothing as to what would be sufficient or substantial compliance with each of the requirements imposed by those two clauses. Such conclusions say nothing as to the degree of precision there need be in the identification by an employee of a 'dispute' and say nothing as to the degree of formality or informality with which this 'dispute' may be raised at a 'meeting' or 'discussed'.

PN236

Against the backdrop of what I've just taken you to, the Judge has outlined that it's about what constitutes disputes and meeting and further discussions. Under the heading of A Flexibility of Meaning, this is where paragraph 61, which our friends identify in paragraph 13(a) of their outline, emanates from. You'll see the words in paragraph 61:

PN237

In very summary form, it is concluded that each of these requirements must be construed with a degree of flexibility consistent with the industrial context in which the two clauses were drafted.

PN238

Unsurprisingly, it's a quote from Kucks which is obviously an often cited piece of judicial authority that's readily cited in the Commission. The expression 'each of these requirements' in the first line in paragraph 61, is a reference to the dispute, the meeting or further discussion described in paragraph 59. It is not a general proposition that you simply read all jurisdictional steps with a degree of flexibility consistent with the industrial context. So, no disrespect is intended for the applicant or the applicant's legal representatives, but the expression in paragraph 13(a), each of the requirements 'in disputes procedures', those three words, 'in disputes procedures' in their outline, makes a general proposition and that general proposition is simply not supported by the case authority that is referred to.

PN239

That is further fortified by the process of construction that occurs between paragraphs 62 and all the way down to paragraph 65 over the page on page 468 of the decision. So, you will see in paragraph 62, and our friends recite this about opposing views. The primary judge in the Qantas decision, didn't ask themselves the question, is there compliance – sorry substantial strict compliance, or substantial compliance, he simply construed the meaning of dispute and meeting and you'll see that starting at paragraph 62 where he starts off rather traditionally with what does the dictionary says is a dispute. Then comes to the conclusion that there's no reason to depart from the natural order and meaning of the word dispute that emanates from the dictionary, and he says that the essence of it is opposing views, which our friends identify is in part their paragraph 13.

PN240

Then at paragraph 65:

PN241

Just as the term 'dispute' is to be given a flexibility of meaning such that it can apply to a single or small group of employees or a larger number of employees and simply involving those employees putting forward their commonly held 'opposing' view as to the position of an employer, the terms 'meeting' and 'discussion' should equally be construed with a degree of informality and flexibility. The requirement that there be a 'meeting' or a 'discussion' obviously does not necessarily involve the necessity for a formally convened meeting or a formal discussion.

PN242

Respectfully, my point is, what is being done here in the Qantas decision is that to properly arrive at the meaning of 'meeting', 'dispute', and 'discussion', that there is a degree of flexibility as to what meets the description of a meeting and dispute or discussion. But this authority is not for the much higher and broader proposition, that is as set out in our friend's outline. Each of the requirements in dispute proceedings must be construed with a degree of flexibility and consistency.

PN243

They must be, nonetheless, present is simply arriving at the conclusion as to what is, indeed, what answers to the description of a meeting or a dispute, has a degree of flexibility. You still strictly have to have something that answers to a dispute or a meeting, it's just what answers to that has a degree of plasticity about it. So, in terms of a jurisdictional steps argument, it is our submission that one still needs to abide by the jurisdictional steps that need to be taken. Now, that's that decision.

PN244

I want to take you to the next – the next decision I want to take you to please, is decision number five in our bundle, please, Commissioner.

PN245

THE COMMISSIONER: That's the Australian Aircraft Engineers Association?

PN246

MR HADDRICK: And Qantas Airways Limited [2022] FCAFC 50, the Full Court Decision of their Honours Justice Besanko, Bromberg and Wheelahan. Can I please take you to paragraph 109 which is the decision of his Honour Justice Besanko? It's found on page 34.

PN247

THE COMMISSIONER: I have that.

PN248

MR HADDRICK: Do you have that, Commissioner?

PN249

THE COMMISSIONER: I do.

PN250

MR HADDRICK: Thank you. This is the point of the appeal decision of that Qantas decision I just took you to, where the Full Court has considered and formed the view as to what the primary judge has done in respect of the process of statutory or sorry, instrument construction that has occurred. It says at 109:

PN251

The cross-respondent referred on a number of occasions in its written and oral submissions to the fact that his Honour [that is Justice Flick] had held that substantial compliance with, inter alia, cl 6.1 of the Qantas Agreement and cl 20.1 of the Jetstar Agreement was sufficient having regard to the terms of those clauses and that strict compliance was not required. His Honour made observations to that effect in the course of considering whether those clauses, among others, 'imposed mandatory pre-requisites or pre-conditions which needed to be satisfied prior to the exercise of any power to refer a 'matter' as a 'dispute' to the Commission' (Qantas (No 2) at [50]). As I have said, his Honour concluded that the clauses imposed pre-conditions which must be satisfied before a 'dispute' or 'matter' can be referred to the FWC (see the discussion in Qantas (No 2) at [50]–[60]).

PN252

Then in paragraph 110:

PN253

Having made these observations, his Honour [Justice Flick] turned to consider the meaning and application of the clauses to the facts. Having determined the meaning of the clauses, I do not understand his Honour to analyse the application of the clauses to the facts by reference to notions of substantial compliance. As I read his Honour's reasons, he determined that there had been compliance with the clauses as he construed them.

PN254

I pause there for a moment. It is this passage that I identify to fortify my earlier submissions about the construction or the interpretation of the Qantas primary decision about flexibility of 'meeting' and 'dispute' and further 'discussion' to properly construe them, requires a degree of flexibility. But it is not authority and it's further fortified by this paragraph of the Full Court decision. It's not an authority for the proposition that you don't need strict compliance with each of the – sorry, that you don't need compliance with each of the jurisdictional steps set out in a dispute resolution clause in an industrial instrument.

PN255

I won't read it out, but the balance of paragraph 110, fortifies what I just said in respect of his Honour's reading of the prime reason. Now Justice Besanko was agreed with or generally agreed with by Justice Bromberg in paragraph 19, where he says 'I generally agree with those reasons and I agree with the orders proposed by his Honour', and he was agreed with by his Honour Justice Wheelahan in paragraph 137 where he thanks Justice Besanko for his reasons:

PN256

I have had the privilege of reading in draft the reasons for judgment of Besanko J. For the reasons given by his Honour I agree that the appeal and the cross appeal should be dismissed.

PN257

The Full Court there agrees with the construction of the interpretation of Justice Besanko had Justice Flick's decision in Qantas. It's not a question of strict compliance or not strict compliance; there simply has to be compliance, it's a question of the construction of the particular terms. Each particular term or each particular element of a jurisdictional step has to be construed using the ordinary tools instrument construction. That's the case authorities that I wish to take you to.

PN258

I now wish to – I'll just return to my guide here. I now wish to take you to the question – just take one step back and go back to the constitution argument. I realise I'm jumping between a couple of arguments but I'm trying to introduce the materials to you all at the same time, rather than unnecessarily jumping back and forth more than I need to. If I can just as you to take up the statement of Ms Marat again, please?

PN259

THE COMMISSIONER: I have it.

PN260

MR HADDRICK: As I think I outlined in our reply submissions, it has been said against us that in paragraph 8(e), that item 13.1, which I took you to before, which is the gravamen of the dispute, gives rise to a conclusion that coupled with the sections 768BY of Fair Work Act, operates such that the Fair Work Commission was the arbiter for the purposes of the award when the respondent agreed to afford the terms of the award to Ms Drinkwater. We say that that submission ought not be accepted and we do that because of reference to the actual language of the agreement between LiveBetter and the State of New South Wales.

PN261

I took you before to those expressions, the consensual foundation, the voluntary assumption and no deemed consent. I took you to that in the One Tree decision. I wish to come back and emphasise four textual features in the contents of the agreement. We start with annexure E. Annexure E, as I pointed out before has the opening line:

PN262

From completion [so, that's a date back in 2017 that's not in contention when the agreement was agreed to with the State of New South Wales], the purchaser, [that's us], acknowledges and agrees it undertakes to procure and (indistinct) bound by relevant industrial instruments.

PN263

The language in which this particular provision is couched, and we've set this out in out in our written outline, shows that we and the State of New South Wales have drawn a distinction between two periods of time, and that's on the natural and ordinary reading of the particular clause. It says:

PN264

The (indistinct) is covered by the relevant industrial instruments which apply to the employment and the transferring employees immediately before completion and will remain covered by the relevant industrial instruments in respect of the transferees at all times, during the guarantee period, and thereafter, subject to the provisions of the Fair Work Act 2009 and the remainder of this Schedule 9.

PN265

We invite this Commission to arrive at the conclusion that the agreement, the actual agreement in the words of Justice Bromberg and Kerr in One Tree when they used the expression 'actual' rather than 'deemed', in paragraph 89, the actual rather than deemed agreement between the parties is that we have delineated between two periods of time as to the application of the Fair Work Act. Now, the obligation, item 13.1 emanates from the Fair Work Act and it applies in a period of time after the guarantee period. The point that there is a comma in the words, and thereafter, in its natural and ordinary meaning, invites the reader to conclude that prior to the expiry of the guarantee period, there is one regime in place and after the expiry of the guarantee period, there's another regime in place. That's the purpose of the comma, and the words, and thereafter.

PN266

Now, that is fortified by annexure F, when we go over to the transfer letter and the document that was crafted at exactly the same time and is incorporated into the agreement as the model words that are to be sent out to the affected employees. We see a slightly different set of words but with exactly the same construction should be applied. You see in the final sentence of that key paragraph:

PN267

However, you will remain covered by your current award at all times during the guarantee period, and afterwards, subject to the provisions of the Fair Work Act.

PN268

We, in our agreement with the State of New South Wales, have drawn a distinction that the obligations that flow from the Fair Work Act, that includes the obligation arising by operation of item 13.1, flow after the expiry of the guarantee. Prior to the guarantee period, prior to the end of the guarantee period, we have agreed that the terms of the current award will apply to the employment, not the current award as affected by a provision of the Act that cannot constitutionally be permissible, and that is to require us to subject ourselves to arbitration, unless we have consented to it by a particular body. So, that is the second textual feature that I draw the Commission's attention to.

PN269

The third textual feature that I draw the Commission's attention to it, is back at annexure E in subparagraph (a) and then (d), it's also found in subparagraph (b), is the affirmation that the entitlements in (a) on the terms and conditions of their employment applying immediately prior to completion. We, LiveBetter, have committed in this agreement to the application of the terms that applied immediately prior to completion. Immediately prior to completion the body that was vested with the jurisdiction to arbitrate a dispute arising under the State Award was the Industrial Relations Commission of New South Wales.

PN270

It's only after completion on our friend's construction, that the Fair Work Act would substitute for the New South Wales body. So, I just want to make sure I've properly communicated this point to you, Commissioner, so this is the third textual feature, this expression that's used both in (a) and also in (b) in schedule 9, that we have promised, committed, agreed, acknowledged, whatever language – I think we used the word acknowledged and agreed at the top of schedule 9, that is the actual rather than the deemed agreement, referring to paragraph 89 of Bromberg and Flicks' decision in One Tree.

PN271

We have agreed that what we would be subject to, is the terms and conditions that were there for anyone to read immediately prior to completion. Not after completion; immediately prior to completion. Immediately prior to completion there was no reference to, there was no applicability of the Fair Work Act. So, that's the third textual feature that I draw your attention to.

PN272

The fourth textual feature is the connection between schedule 9B where the default defined term, Relevant Industrial Instrument is used in B. That is of course, referrable back to annexure B which is the definition of that particular expression and that's why I took you to the opening words, Relevant Industrial Instrument means:

PN273

Any State Award of enterprise agreement in operation and applicable to the employees immediately prior to the completion date.

PN274

Not a Relevant Industrial Instrument as affected by the Fair Work Act after the completion date, but what we've agreed to is the exact industrial instrument, called the State Award that was in operation or applicable to the employees immediately prior to the completion dates. So, on its proper construction of the definition of Relevant – sorry, I think we've just lost our friend. Well, he's disappeared off my screen.

PN275

THE COMMISSIONER: I can see him. It might just be off your screen. Is this Mr Slevin you're referring to, I take it?

PN276

MR HADDRICK: Yes, my learned friend.

PN277

THE COMMISSIONER: Yes, I can see him.

PN278

MR HADDRICK: He just dropped off, so I didn't want to keep going, just in case the line dropped out.

PN279

So, that is the fourth textual reason why we say, when you have regard to the factual finding that you're required to make to determine whether we agreed to the Fair Work Commission being able to be substituted for the New South Wales Industrial Relations Commission, there are four textual reasons in the contents of the agreement.

PN280

Now, jumping back to the jurisdictional steps argument, we have in our outline, our reply submissions, set out the language of clause 25 and you will recall previously, that I took you to the provision – I took you to two lots of – two bundles of statutory provisions. I took you to the machinery for varying the terms of the copied state award either before or after the copied state award comes into effect. And I took you to a bundle of provisions that dealt with statutorily imposed modifications as the Act calls, that is they modify the operation of the underlying relevant state awards so that it sits comfortably and harmoniously with the Fair Work Act.

PN281

As we say in our final paragraph in our second last point, in our final paragraph of our reply submissions, we do not suggest for a moment, that the Fair Work Act does not operate so as to modify the operation of the agreement and modify the operation of the copied state award, once it becomes a species of Federal instrument, because ordinary rules of statutory construction, obviously our parties can't enter into an agreement that's inconsistent with a statute. But that is a separate question to whether the terms of the statute, when properly construed have the effect of imposing upon the parties an obligation to arbitrate where the factual finding is made to say that they have not agreed to be arbitrated by that particular body.

PN282

It does not permit the work to be done by item 13(1) to have the effect of substituting the Fair Work Commission for the Industrial Relations Commission for that particular purpose. We've chose our words in the final two paragraphs of our reply submissions very carefully. Yes, 13(1) does have valid constitutionally permissible work to do to substitute the Fair Work Commission for the New South Wales Commission, for all purposes except for the constitutionally impermissible purpose, unless there is consent. That is why I've taken you to what I say is the four textual features of the written agreement that we entered into with the State of New South Wales that shows what we did or did not consent to.

PN283

We don't caveat – sorry, we don't cavil with the proposition that after the end of the five year period, pursuant to the schedule 9B, we have agreed to be subject to the terms of the Fair Work Act. We don't cavil with that at all. That's, we say, the natural and ordinary construction of each of those provisions, but particularly sub (b) of schedule 9, of the agreement. It's only prior to the end of the five year period that we say, as that comma, and the words 'and thereafter', or in the model letter, the comma and afterwards, meaning a different word but for the same purpose, has the effect of showing that we accept a different regime applies after the expiry of the five year period.

PN284

But prior to that, and consistent with the definitions of relevant industrial instrument and consistent with the peppering through those two schedules of the expressions 'after the completion' – sorry, I'm mis-expressing the exact language. The exact language being 'immediately prior to completion'. The use of that expression as identifying what exactly we've agreed to. We've agreed to the document that exists immediately prior to completion, being the award as it was at any time immediately prior to completion, as being the thing that we've agreed to.

PN285

We don't cavil with the submission that the Fair Work Act makes lots of modifications to the operation of the relevant State Award, when it creates the species called a copied state award. It doesn't just create it and continue it as a parallel special species of Federal instrument. It modifies lots of it so it has the machinery revisions. As I said before, there are clear express uniform modifications which I took you to in terms of different things substituting for different things in the Act.

PN286

But then there is a vehicle for variations to deal with circumstances where the copied state award, can't, in its application, have – I think the words were meaningful operation, if I've recalled the words correctly from that particular section of the Fair Work Act, where it's capable of meaningful operation. That is section 768AX(1), where the Commissioner is given the power to vary that copied state award to remove terms that are satisfied or not or will not be capable of meaningful operation or to vary those terms so they are capable of meaningful operation.

PN287

So, our submissions are couched on the Parliament has created these two bodies of principle, a vehicle for varying the awards and a statutory created series of modifications that don't require applications to vary, they just simply are varied. It's created those two things and, in that context, one then looks at the contents of clause 25 of the copied state award, and looks at the various steps in that. I simply wish to recite what we say are the steps that have not been followed. We've partially set this out in our reply submission, or the steps that ought to be complied with. But for instance, clause 25(2) requires:

PN288

A staff member is required to notify in writing their immediate manager.

PN289

Now, there is evidence before the Commission and Ms Marat has been subject to cross-examination and it is my submission that Ms Baker is not, and Ms Marat are not the immediate managers for the purposes of the clause of Ms Drinkwater. And there's ample written and now oral testimony to describe who were the immediate managers who would fall within that description.

PN290

Now the evidence that's pointed to by our friends in respect of compliance with that requirement, is that they say in paragraph 9(o) of their applicant's outline of submissions, they say on the 11 November 2021, the CPSU wrote to Ms Tegan Baker, Head of HR on behalf of Ms Drinkwater, raising the dispute and seeking that Ms Drinkwater be afforded the conditions of employment in accordance with the State Award, and that's found in paragraph 9(o) of the applicant's submissions.

PN291

Well, in response to that, we say Ms Baker was not the applicant's immediate manager, so therefore, we say that is a failure to take that jurisdictional step. Furthermore, they say in paragraph 9(q), on 24 November 2021, again, the CPSU sent Ms Baker a letter expressing and raising a dispute under the disputes procedure in the award and again, our retort to that proposition, is that Ms Baker was not the applicant's immediate manager.

PN292

Clause 15(4) of the copied state award provides a requirement that the immediate manager should convene a meeting in order to resolve the grievous dispute or difficulty. Then supporting that – now, of course, where the moving party for the jurisdictional objection, but the applicant is the moving party to invoke the jurisdiction of this Commission to seek relief, be it through conciliation or arbitration. So, it's incumbent upon the applicant to properly adduce evidence that satisfies the Commission that it has jurisdiction. It's not on us to produce evidence to dissatisfy. We object, and we have produced evidence to dissatisfy, that's Ms Marat's evidence, but it's incumbent upon the applicant to put before this Commission, at the very least a written statement that satisfies the jurisdictional elements to invoke the jurisdiction within (indistinct).

PN293

So, we say, in terms of clause 25.4, where it is said by the applicant, on 12 November 2021, the CPSU spoke with Ms Baker and that's found at paragraph 9(p). Just hold for a second Commissioner, I just want to ask my junior a question. I'll just pause for a moment, directly, please.

PN294

My junior just drew to my attention, that in the submissions provided by our learned friends on page 84 of the court book at paragraph 9(p), where it says on 12 November 2021, the CPSU spoke with Ms Baker. Then footnote through the first two form F10 at paragraph 2.5.1, it simply asserts that on 12 November 2021, there was a conversation with Ms Baker, head of HR and Community Services. That is all it asserts. That is not evidence as to the jurisdictional step required for the purposes of clause 25(4), where it needs to then:

PN295

Shall convene a meeting in order to resolve the grievance dispute or difficulty.

PN296

As I say, that is the evidence that has been adduced as simply an assertion that they spoke with Ms Baker. Our comments in respect of that, is first of all, the primary comment, Ms Baker is not the applicant's immediate manager, so much is clear from the evidence already before the Commission. Secondly, we cavil with the expression whether this is a meeting as required for the purposes of clause 25(4), that this is a meeting for the purposes of convening a meeting to resolve the grievance, dispute or difficulty.

PN297

So, that's our second observation where this doesn't answer to the description when properly so categorised. No doubt, when my friend gets to make some submissions, he will take you back to the part of Qantas (No 2), in reference to the flexibility requirements as to answering the description of meeting. So, it requires a factual finding there.

PN298

The next jurisdictional step that we say that has not been complied with is clause 25.5 where it says:

PN299

If the matter remains unresolved with the immediate manager, a staff member may request to meet the appropriate person at the next level of management. The staff member may pursue the sequence of reference to successive levels of managers, until the matter is referred to the immediate manager or branch head.

PN300

We say four things in respect of that. The first thing we say is that the matter was never raised with the applicant's immediate manager, our primary point before. Therefore, on this basis it cannot be said that it remained unresolved with the immediate manager. If it wasn't raised with the immediate manager, then it's not unresolved with the immediate manager. That's (indistinct) straight-forward English language.

PN301

The second point is that Ms Baker was not a person at the next level of management. You heard about the chain of command before, in terms of the evidence that Ms Marat gave. The third point that we make – your associate has just disappeared. Can you still see your associate, Commissioner?

PN302

THE COMMISSIONER: I can, yes.

PN303

MR HADDRICK: The third point we say in respect of clause 25(5) - - -

PN304

THE COMMISSIONER: Continue Mr Haddrick, there's just a bit of a lag, but continue.

PN305

MR HADDRICK: Thank you Commissioner. The third point is the applicant did not pursue the referral to successive levels of management. The fourth point is that Ms Baker was not the regional manager or branch head. The regional manager or branch head is a reference to a position within the relevant department, the Department of Family and Community Services of New South Wales. That's why I took you to the provisions of the variation clauses, I should say the variation section of the Fair Work Act that allowed the variations, because that's where these variations occur. These variations simply have not occurred, there has been no application, so the language of the – it's not as simple and as cute a simply saying we're no longer in the New South Wales public service. There is no regional manager of branch head, therefore, we just ignore that requirement.

PN306

You don't just get to ignore a jurisdictional step because it's no longer convenient because of the circumstances. There are only two ways in which that jurisdictional step can be removed or varied or modified, and that is by the express modification set out in the Fair Work Act. Are you still there? You just seem to be frozen to me, Commissioner.

PN307

THE COMMISSIONER: I am still there. I think the connectivity issues might be at your end Mr Haddrick, but I've got good visibility of the parties, so if anybody drops out, I'll let you know.

PN308

MR HADDRICK: All right. It's not simply a case of the jurisdictional steps, we just get to step over jurisdictional steps, because we're no longer an employment structure nested in the New South Wales Public Service. There is a thing called the regional manager or branch head and that's the step that – the steps need to lead up to that particular person. If the parties thought it was no longer appropriate for that particular person or the Commission thought it was no longer appropriate for that particular office holder to be a party to the dispute resolution process, well there's a statutory mechanism there to vary that to substitute in whatever nomenclature is required for the positions in the hierarchy of our organisation. So, there's four points we say in respect of clause 25(5).

PN309

In respect of clause 25(7), it says:

PN310

If the matter remains unresolved, ADHC

PN311

And ADHC stands for – if my memory hasn't escaped me. Sorry, I want to make sure I say this completely, it stands for Aging Disability and Home Care, which is an organisational unit in the New South Wales Department of Family and Community Services. So, it says in clause 25(v):

PN312

If the matter remains unresolved, Aging Disability and Home Care shall provide a written response to the staff member and any other party involved in the grievance dispute or any action taken, or the reason for not taking action in relation to the matter.

PN313

Well, in response to that, it is asserted against that on the 7 December 2021, the CPSU received an email from Ms Baker disagreeing with the view taken by the CPSU in relation to Ms Drinkwater's award coverage. Ms Baker is not part of ADHC. If the communication needs to come from Ms Baker, they would have said the company of LiveBetter or the employer, but it doesn't. The unvaried language of the dispute resolution clause refers to the ADHC. That's where the correspondence needs to arrive from.

PN314

Our final contention in respect of the jurisdictional steps not taken is clause 25(ix).

PN315

The staff member, or the union on their behalf or the department head may refer the matter to the industrial relations Commission of New South Wales, if the matter is unresolved following the use of these procedures.

PN316

It is asserted against us in terms of what is the evidence, but on 20 December 2021, the CPSU applied to Ms Baker indicating that it would be seeking the assistance of the Fair Work Commission to resolve the dispute, as set out in paragraph 9(s) of the applicant's submissions. In response to that, we say, the union may only refer the matter to the industrial relations Commission New South Wales, if the matter is unresolved via the use of these procedures. If any one of these procedures have not been followed, then the jurisdictional steps have not occurred. Therefore, on the plain and ordinary construction of the language that invokes the jurisdiction of not this Commission, but the New South Wales Industrial Relations Commission, then the jurisdictional requirement just to get to the New South Wales Commission has not been evoked because the jurisdictional step has not occurred.

PN317

So, that's what we say in terms of the jurisdictional steps. In summary, we say that on its proper construction, you should make findings of fact that there was not, indeed, a voluntary assumption or substantial foundation or an actual agreement in the words of Justices Bromberg and Kerr in paragraph 89 of the One Tree decision. That there was indeed, an actual agreement to permit the Fair Work Commission to be the body that does the arbitrating, and that's what the constitutional point boils down to. Where was the agreement by us as to permit the Fair Work Commission to be the body that does the arbitrating? And you don't get to that agreement by way of any form of deemed consent or constructive consent; it is actual consent, objectively ascertained in findings that need to be arrived at that conclusion.

PN318

We say that this Commission can't get to that finding, in fact, quite the opposite is evident, because of the four textual features that I drew your attention to in the language of the various annexures to the affidavit of Ms Marat which are drawn from the agreement. The agreement is the general law or contractual foundation for the agreement. You will recall I took you to the expressions of the general or contractual or written contract that I took you to in the private arbitration case and in the One Tree case. You look to the most obvious form of evidence as to the nature of the agreement and the agreement is set out in those particular annexures and those annexures evince that we certainly agreed to be subject to the Fair Work Act, and that includes full effect of the Fair Work Act, post the five year period.

PN319

But prior to the five year period on its natural and ordinary meaning, we did not agree to be subject to anything other – I want to emphasise this very final point. We do not agree to anything other than the state award that was in operation and covered the transferring employee immediately prior to completion. We say that those textual features necessarily lead to the conclusion that there is simply an absence of the necessary factual, rather consensual foundation so as to permit the Fair Work Commission to arbitrate this dispute in circumstances where we do not consent to the Fair Work arbitrating the dispute.

PN320

We have certainly consented to the New South Wales Industrial Relations Commission arbitrating this dispute, that's the effect of the written agreement. We have not consented to the Fair Work Commission doing it and the provisions of the Fair Work Act and the Transitional Act, we don't cavil, they modify the operation of the state award as it applies as this new creature of the copied state award. But they do not modify the operation of the state award where there is a constitutional principle that items 13.1 ought to be read down to provide the conclusion that it does modify for the purposes of mediation and conciliation, but not arbitration. Because if it did, if 13.1 did get to be read larger than read in its plain meaning, then frankly, you would be doing exactly what has been warned against by the employer in One Tree, where they talk about in paragraph 89:

PN321

The requisite consent must be actual rather than deemed by the statute. To contend that if Parliament could simply legislate to deem or mandate consent to a private arbitration the chapter 3 restrictions could be readily usurped.

PN322

And that's what we say, absent of finding that we did actually consent to arbitration, then absent that finding, and given the construction that we understand our friends proper, then you would be reading that provision in a way that's constitutionally impermissible and you are not permitted to do that by operation of both the constitution. The way in which you resolve that dispute is section 15A of the Acts Interpretation Act that requires you to conclude that the provision is still constitutional, up to but not including constitutionally impermissible purposes.

PN323

Let me just check my notes to make sure I've covered everything, please Commissioner. They're my submissions in chief, Commissioner. Sorry for being so long-winded.

PN324

THE COMMISSIONER: No, that's okay. I just have one question by way of clarification. I think I may know your submission on this, but I just want to be clear.

PN325

The ability of the Commission to deal with the dispute, a question of compliance with the jurisdictional steps in the dispute clause. Do you say there's a particular order in which those questions need to be dealt with?

PN326

MR HADDRICK: Yes, because in the opening words of clause 25, it refers to graduated steps. So, you see textual commands there – I'm just looking for my own submissions where I have that set out. As you'll see in my own submissions on page one of my own reply submissions, paragraph 5(1):

PN327

All grievances and disputes relating to the provisions of the law, shall initially be dealt with as close to the source as possible with graduated steps for further attempts at resolution of higher levels of authority, and importantly, within ADHD, not within LiveBetter, within ADHD.

PN328

So, there is the textual affirmation with the graduated steps, so there is a hierarchy. You work through that list that I've just worked through and I've identified the ones I say have not been complied with.

PN329

THE COMMISSIONER: I follow that argument, but I suppose the question well relates to the more fundamental question around whether the Commission has the power to deal with this question around the steps at all. So, my question to you was there an order in which I need to deal with the fundamental issue, Mr Haddrick.

PN330

MR HADDRICK: Yes, you should always – ordinary rule of construction, you always start with the question of jurisdiction before you move to substantive merits and if the statutory scheme provides a system of jurisdiction steps, then you would resolve the jurisdictional steps question first before you move to the constitutional question. If you arrived at the conclusion that we're right, that certain jurisdictional steps have not occurred, or as we would say, an application for variation has not been brought, so as to permit the jurisdictional steps to occur, then that would be the end result, the end of your reasoning.

PN331

THE COMMISSIONER: Thank you.

PN332

MR HADDRICK: You would simply complete, but you don't have jurisdiction, therefore you can't move onto the next substantive point.

PN333

THE COMMISSIONER: Thank you Mr Haddrick. All right, Mr Slevin, how long do you think your submissions might go for?

PN334

MR SLEVIN: Should be between 30 minutes and 45 minutes.

PN335

THE COMMISSIONER: Are you happy to proceed now? I was going to offer the parties an adjournment if it was likely to go for longer than that.

PN336

MR SLEVIN: I'm happy to proceed, Commissioner.

PN337

THE COMMISSIONER: Please proceed, Mr Slevin.

PN338

MR SLEVIN: Thank you. I should start by tendering my evidence which is the document referred to in my submission. If I could tender first of all the document that's at page 61 of the court book, Commissioner. I'll identify that for you. That's the letter of 5 July 2018 from LiveBetter to Roslyn Drinkwater. I tender that document.

PN339

THE COMMISSIONER: Thank you, I'll mark that as A1 for convenience.

EXHIBIT #A1 LETTER OF 05/07/2018 FROM LIVEBETTER TO ROSLYN DRINKWATER

PN340

MR SLEVIN: The second document that I tender is the document at page 41 of the court book, which is the letter to Mr Tim Curran, Chief Executive Officer of LiveBetter from the CPSU dated 19 March 2019.

PN341

THE COMMISSIONER: I'll mark that as A2.

EXHIBIT #A2 LETTER TO MR TIM CURRAN, CHIEF EXECUTIVE OFFICER OF LIVEBETTER FROM THE CPSU DATED 19/03/2019

PN342

MR SLEVIN: The third document is the letter at page 46 of the court book, which is a letter to Ms Tegan Baker, Head of HR at LiveBetter Community Services from the CPSU.

PN343

THE COMMISSIONER: I'll mark that as A3.

EXHIBIT #A3 LETTER TO MS TEGAN BAKER, HEAD OF HR AT LIVEBETTER COMMUNITY SERVICES FROM THE CPSU

PN344

MR SLEVIN: The third piece of correspondence is at page 48 of the court book, and it is the letter of 24 November 2021 from the CPSU to Ms Tegan Baker, Head of HR, at LiveBetter Community Services, I tender that.

PN345

THE COMMISSIONER: Yes, I have that. I'll mark it as A4.

EXHIBIT #A4 LETTER OF 24/11/2021 FROM THE CPSU TO MS TEGAN BAKER, HEAD OF HR, AT LIVEBETTER COMMUNITY SERVICES

PN346

MR SLEVIN: The next document is at page 50 of the court book and it is the email from Tegan Baker to Sharney Chalmers sent 7 December 2021 at 2.57 pm. I tender that document.

PN347

THE COMMISSIONER: I'll mark it as A5.

EXHIBIT #A5 EMAIL FROM TEGAN BAKER TO SHARNEY CHALMERS SENT 07/12/2021 AT 2.57 PM

PN348

MR SLEVIN: The final document is at page 54 of the court book and it is the letter from the CPSU dated 20 December 2021 to Ms Tegan Baker, Head of HR at LiveBetter Community Services. I tender that document.

PN349

THE COMMISSIONER: What page reference was that in the court book, sorry?

PN350

MR SLEVIN: Page 52.

PN351

THE COMMISSIONER: 52, yes. I'll mark that as A6.

EXHIBIT #A6 LETTER FROM THE CPSU DATED 20/12/2021 TO MS TEGAN BAKER, HEAD OF HR AT LIVEBETTER COMMUNITY SERVICES

PN352

MR SLEVIN: Thank you. In terms of submissions because my friend has been so thorough, Commissioner, I think I can confine myself to three matters that really fall under three headings. One is timing. That goes to the jurisdiction of the Commission and the identification of the Fair Work Commission as the arbiter for the purpose of these proceedings.

PN353

The second matter goes to the question of adjectives, where in relation to the construction of the dispute's procedure, we're accused of claiming that only substantial compliance is necessary; we don't. The adjective used by my learned friends, jurisdictional steps, we say the adjective jurisdictional is quite uncalled for in describing the disputes procedure. So, that's the second argument.

PN354

The third argument is in relation to nomenclature and the use of the acronym ADHC, in particular in the disputes procedure and what the Commission would do with that and put briefly, we say that the provisions of the Fair Work Act and the Transitional Act identify an employer for the purposes of the Fair Work Act, that succeeds a state authority as being – to be regarded as the new employer, rather than the old. I'll take you to those provisions.

PN355

I start first of all with the timing question and we agree with my friend that for the purposes of One Tree, what needs to occur is a construction of the agreement by which the respondent agreed to be bound by the provisions, in particular here, of the Fair Work Act. My friend took you to some contextual matters in the agreement that we didn't see until reply, and so we didn't address in our written submissions and assumed that the relevant timing was the timing of the transfer. The relevant timing appears to be the end of the guarantee period.

PN356

The difference between my friend and I on this, Commissioner, can be simply stated. He talks about the agreement to be bound by the Fair Work Act as being an agreement that would be five years after the completion date. I don't know where he gets the five years from. He didn't elaborate in his submissions as to where that five years comes from. I apprehend that what he's making reference to is the Fair Work Act at section 768AO subsection (2) which identifies the termination of copied state awards as occurring five years after a transfer. That's where Arthur Hendy gets his five year period from, but I say that that's incorrect and the proper construction of the time period at which the respondent agreed to or consented to be bound by the statutory scheme associated with the copied state awards can be found in the document at pages 110 and 111 of the court book. These are the extracts from the agreement.

PN357

I take you to schedule 9. My friend has already explained to you the regulatory force or the force of these provisions and how they operate. But to bring you to the nub of the issue, schedule 9 at (b) says that:

PN358

The company is covered by the relevant industrial instruments which apply to the transferring employee immediately before completion and will remain covered by the relevant industrial instruments in respect of the transferring employees at all times during the guarantee period.

PN359

So, the relevant time is the guarantee period, and thereafter, and my friend makes the submission that after the guarantee period, will be subject to the provisions of the Fair Work Act 2009, Clth and the remainder of this schedule 9. So, the guarantee period is important. The guarantee period is not a defined term that I can see in the extracts we've been given from the agreement, but an indication of what the guarantee period is, is in schedule 10, on page 111. You'll see there under the heading of Frequently Asked Questions and the first of the questions:

PN360

Will my employment arrangement change?

PN361

An indication that reflects 9(b) is provided.

PN362

Your existing employment terms and conditions will transfer, have transferred to and will be recognised by your employer company as applying in your employment with new employer company from your transfer date. These terms and conditions will remain unchanged for at least the period of the employment guarantee, unless you agree or they are varied consistent with your terms of employment. However, you will remain covered by your current award at all times during the guarantee period and afterwards, subject to the provisions of the Fair Work Act 2009 Clth.

PN363

And here's the nub of this, the employee guarantee period is two years for permanent employees and up to six months for temporary and casual employees. So, there the guarantee period is indicated to be two years or six months.

PN364

In relation to Ms Drinkwater, the guarantee period is six months. You see this at page 46 of the appeal book which is exhibit A3 or court book, rather, which indicates that Ms Drinkwater was a casual employee. That is, employment was transferred in September 2017. We don't understand there to be any dispute that that's the case, which means that the six month guarantee period for Ms Drinkwater went from September 2017 to March 2018. So, on the face of the agreement, the Fair Work Act applied with the consent of the respondent from March 2018. You will note that this dispute arises because of steps taken by LiveBetter, the respondent, on 5 July 2018, at a time at which, LiveBetter had consented to the Fair Work Act scheme applying to it.

PN365

So, that's the answer to the first question about when you get to the point as you're required by Tree Hill, we accept, construing the agreements made, as opposed to, we don't say if there's any statutory imposition of jurisdiction. We say that the jurisdiction arises from the agreement of LiveBetter, and the agreement of LiveBetter is as reflected in the document attached to exhibit R1, which indicates that the agreement was that from March 2018, the Fair Work Act scheme would apply, and this dispute arises after March 2018, so after the consent is given for the Fair Work Act to apply.

PN366

What follows from that is that the submissions that we make and of course, I rely on our written outline of argument, Commissioner. Our written outline is good on its view of the operation of the legislation, which is to say the Transitional Act operates so that the New South Wales Industrial Relations Commission is to be regarded as a reference to the Fair Work Commission. So, this Commission has jurisdiction to deal with this arbitration in that way. So, that's the first point going to the jurisdiction of this Commission, as opposed to the New South Wales Industrial Relations Commission.

PN367

The other two points go to the other question that arises, which again, is a construction in terms of the construction of the dispute's procedure itself. My friend referred to clause 25, it's clause 21 of course of the copied state award, which is set out in our submission and in the reply submission of the respondent. So, perhaps if I can take you to the dispute's resolution procedure, page 85 of the court book. Now, I said what the difference here seems to be one of adjectives. At pages 86 and 87, at paragraphs 13 and 14, we refer you to the relevant authorities on construction of disputes procedures.

PN368

There's a criticism of us and that's that we – well, it's me, actually, that I have overstated paragraph 61 of the decision of Justice Flick. There was no intention to overstate that, and perhaps I paraphrasing paragraph 61, I should have used the words, instead of in disputes procedures, the words, there'd be a dispute meeting or discussion. I accept that criticism. But in reflecting the import of that general statement, it was a general statement or some restatement of his Honour Justice Flick at paragraph 61.

PN369

I do direct you to the specific paragraphs that my friend referred to, as the highlights, as it were, of the approach taken by his Honour Justice Flick that wasn't disturbed on appeal in paragraphs (b), (c), (d), (e) and (f). I won't read it Commissioner, you're more than capable of having reference to those paragraphs and my friend has already taken you to some of them, in any event.

PN370

In relation to the DP World, again, I've taken the same approach and I've identified the paragraphs and the key paragraphs being paragraphs 26 and 29 of the DP World. They're put to provide for you the test that should be applied when construing clause 21 and the approach that should be taken. That approach is stated there. If you go to the disputes resolution procedure you have repeatedly, not only in the written submissions, but in the oral submissions this morning, been told by the respondent that these steps are jurisdictional steps.

PN371

The use of the adjective jurisdictional is unwarranted. It's a case, simply, of reading the disputes resolution procedure, construing it with a mind to what it requires parties to do in resolving their disputes, and in particular, for the purpose that you are construing the disputes procedure, Commissioner, with a view to how those matters relate to the referral of the matter for arbitration at 21(ix) of the disputes procedure.

PN372

So, importantly in that exercise, we submit, is that you start first of all with the nature of the dispute that may be referred to you and it's a very broad disputes resolution procedure and it says that:

PN373

All grievances and disputes relating to the provisions of the award shall initially be dealt with as close to the source as possible. That's the first indication as to what a person with a grievance or dispute should be doing. They should be initially, trying to deal with the dispute as close to the source of that dispute as possible.

PN374

So, that's the first construction issue that we take issue with from my friends, who seem to suggest that as close to the source as possible should be ignored and one should simply go to 21(ii) and mechanistically work through those provisions. We say a proper reading of the wording of the dispute's procedure, and that requires reading the procedure as a whole, is not supported by that initial direction that the attempt to resolve the dispute shall initially be dealt with as close to the source as possible.

PN375

So, the first thing to be done in applying this disputes procedure given that wording, is a consideration of the source of the industrial dispute. The source of this industrial dispute is exhibit A1, the letter of 5 July 2018. The source of the dispute is the offer of employment based on terms and conditions that are not the award. That being the source of the dispute, and that being a correspondence from the General Manager of People & Culture, directs the person with the grievance or dispute to that particular manager or that particular part of the respondent's operations.

PN376

So, we say as close to the source as possible, requires refers reference to the Department of People & Culture and that's precisely what occurred in these circumstances. The dispute was referred by the union on behalf of Ms Drinkwater, as is permitted by the disputes procedure at 21(viii). So, representation by Ms Drinkwater's union occurred and the letter rating the dispute was sent on 11 November 2021, exhibit A3. That is for the purposes of this dispute, the immediate manager as close to the source as possible. The Manager, in the HR Department, which as we heard this morning was part of the People & Culture Department of the respondent.

PN377

So, having raised the dispute, there is compliance with - not substantial compliance. We don't use the adjective substantial compliance as His Honour Justice Besanko observed in relation to the analysis of Justice Flick. We don't say substantial compliance, we simply say you read this, see what's required, is it complied with and yes, indeed, it's complied with in that manner.

PN378

Going to the next of the subsections or the subclauses (iii), where the grievance or dispute involves confidential or other sensitive material. Reference is made there to harassment or discrimination. We say that didn't apply, and so there was no need for compliance, as it were, with that step, because the requirement that it be a matter that involved confidential or other sensitive material did not pertain.

PN379

So, we move to what's required at (iv):

PN380

The immediate manager shall convene a meeting in order to resolve the grievance dispute or difficulty within two working days.

PN381

We get to this point, your Honour, and we direct your attentions to the Full Bench in DP World, and at paragraph 26 of that decision, I won't take you to it, but the Full Bench made reference to a provision that it does not intend that the operation of the dispute's procedure might be frustrated by one party's non-cooperation, preventing all or any stages of the procedure being followed to completion. So, the failure to convene a meeting in order to resolve the dispute should not be a factor that should lead to the conclusion that this dispute procedure was not complied with by Ms Drinkwater.

PN382

We then move on to 21(v):

PN383

If the matter remains unresolved with the immediate manager [which it did in this event, as you see on the face of the correspondence] the staff member may request to meet the appropriate person at the next level of management.

PN384

The use of the word 'may' in this procedure, means that this is not a mandatory step in any sense and that the disputes procedure does not require that step to be taken. That's a step relating to regional manager or branch head. So, the step in roman (vi) doesn't apply because Ms Drinkwater did not take up the option in roman (v).

PN385

Then at (vii):

PN386

If the matter remains unresolved, ADHC shall provide a written response to the staff member and any other party involved in the grievance dispute or difficulty.

PN387

Now, that's an obligation on the employer. The footnote to the reply submission at footnote 3 on page 95 of the court book, the submission is made, well there's no one in ADHC has been involved in this dispute, so all bets are off, effectively. The identification of the employer under the statutory scheme to which the respondent consented, includes at schedule 3A of the Transitional Act, reference to the new employer, however described in the earlier instrument.

PN388

So, in circumstances where schedule 3A at item 3, and that is repeated you'll see, throughout schedule 3A, makes that – it's not a qualification, but makes that direction, that the provisions will apply to the employer, however described in the original source award. Then you'll see that applying that provision to this agreement with references to ADHC, Aging Disability & Home Care, are to be read as references to the new employer. So, that's how that's dealt with. In a similar way to the change under the statutory scheme from references to Industrial Relations Commission of New South Wales, to be read as references to the Fair Work Commission. References to the employer as described under the old instrument are to be read as references to the new employer.

PN389

So, in terms of compliance then, with clause 21(vi), you'll see that a response did come in exhibit A5 in writing in relation to the grievance dispute or difficulty. Brief as it may be, it makes clear that – and this is at page 50 of the court book, that this is a response to the dispute being a reply to your letter dated 24 November, regarding Ms Drinkwater:

PN390

We do not agree with your view that Ms Drinkwater is covered by the Community Living copied state award. Ms Drinkwater's employer is properly covered by the terms of the Social Community Home Care & Disability Services Industry Award.

PN391

So, we have there, and I just enter those there, despite what my friend said earlier, that his client was not going to be bound by the Fair Work Act for a five year period, you'll see within the five year period Ms Baker, on behalf of LiveBetter is making representations to the CPSU that indeed, it was. It's just that it was making reference to which industrial instrument under the Fair Work Act applied. It wasn't saying, oh no hang on, we're still within the five year period and so the state award applies. It was in terms, stating that an instrument under the Fair Work applied, indicating that it understood at that time, or certainly Ms Baker understood at that time that a Fair Work Act applied and the dispute was just about which instrument applied.

PN392

So, I've interposed there just to fortify the earlier submissions made in relation to what was consented to by LiveBetter, and here's an example of them during that five year period, indicating that indeed, the Fair Work Act applied. That's the written response.

PN393

In terms of the reference to the Commission which is what relevantly follows next, which is (ix) of clause 21:

PN394

The staff member or the union on their behalf for the Department Head, may refer the matter to the Industrial Relations Commission of New South Wales, to be read as the Fair Work Commission, if the matter is unresolved following the use of these procedures.

PN395

Again, there is no indication in the wording of the disputes resolution procedure that there are mandatory steps to be taken. There is an invitation to those who are aggrieved or believe they are in dispute to initially deal with that dispute as close to the source as possible, and the immediate manager as close to the source as possible, was indeed engaged in the dispute, and the various steps so far as they apply to that dispute were followed. For that reason, the disputes procedure was complied with.

PN396

Those are the submission that I wanted to make in reply to what my friend has said, Commissioner. Unless there's anything that's troubling you that I can assist with, I'll leave the submissions of the CPSU there.

PN397

THE COMMISSIONER: Thank you. Mr Haddrick, anything that you wish to say at this point?

PN398

MR HADDRICK: Yes, Commissioner, you've just totally disappeared from the screen. Can you still hear me and see me?

PN399

THE COMMISSIONER: I can see you, yes.

PN400

MR HADDRICK: Okay, you've just come back on the screen. I presume my learned friend is there as well.

PN401

THE COMMISSIONER: Yes, he is. I can see him.

PN402

MR HADDRICK: Commissioner, just in reply on four points. My learned friend takes you to schedule 10 and he draws your attention to annexure F and he askes you to conclude as to what the length of the guarantee period is, by the reference to the employment guarantee period is two years, for permanent employees up to fix months for temporary and casual employees. He thereby invites the Commission to conclude – to accept our proposition that post the guarantee period, we accept that the terms of the Fair Work Act apply, and on its proper construction the guarantee period expires after two years.

PN403

I want to underscore a submission I made before and that is the relationship between the terms of the agreement and the Fair Work Act. The agreement is an agreement in the general law sense, and the contract in the general law sense between the State of New South Wales and also my client, the respondent, LiveBetter. But as we say in our final paragraph of our reply submissions, as I just bring them up, if I can place my hand on them. As we say in our final paragraph of our reply submissions, at paragraph 56(b):

PN404

It is conceded the general rule is that the various provisions of the Fair Work Act, if they be invoked, according to the ordinary rules of the statute construction, override the operation of the terms of the agreement to the extent that there is any inconsistency.

PN405

As my friend identified, section 768AO of the Fair Work Act provides that there is a five year period whereby a copied state award continues to operate unless it's changed by operation of some regulations made under that provision. It says:

PN406

A copied state award for transiting will exist to operate at the following time (indistinct) period, the default period that is five years or such longer period as is prescribed by the regulations as starting on the day of the employee's termination.

PN407

It is a starting point of construction that we, the respondent, the employer are not at liberty to disobey the provisions of the Fair Work Act. In any agreements we have with any third parties, or any parties at all, must comply with the terms of the Fair Work Act. So, insofar as in the schedule 10, a description of the guarantee period being for a period of two years for permanent employees, or six months for casual employees, that is not a permissible requirement that we can apply for permanent employees.

PN408

We are required by section 768AO of the Fair Work Act to continue the operation of the copied state award for the five year default period. During that default period, we have to provide the same terms and conditions as were provided under the relevant state award that existed immediately prior to the completion time.

PN409

So, insofar as the agreement tries to carve down the amount of time that the guarantee period runs for, it is not a permissible contractual exercise by the parties. The Commissioner would appreciate that a term of the contract entered into that does not comply with the law, if of no effect at all, or must be read so as to not breach the law. In terms of the timeframe of the operation of schedule 9B, M(b) referring to the guarantee period, the guarantee period refers to a five year period.

PN410

Now, you'll see on that same page, that there's actually a couple of different expressions. There's the Guarantee Period which you'll see in schedule 9B with a capital G and a capital P, but you'll also see that there's a further defined term called the Employee Guarantee Period with a capital E, capital G and capital P. Well, there's no definition in the agreement of the guarantee period. They are two separate expressions and you see that from the capitalisation of the G and the P, and E and the G and the P in sub(c). So, one automatically concludes that they have a different – or they could have a different meaning, because they are couched in different words or different language. One has three words and one has two words.

PN411

But more broadly, we cannot escape the operation, much as we might like to, of section 768AO of the Fair Work Act, which requires us to provide the terms for the default period of five years. So, bearing that statutory requirement in mind, that we can't escape, because we are a federal instrument and that this provision modifies the operation of a federal instrument to that effect. One has to read the clause and the clauses in schedule 9 as having an effect consistent with the Fair Work Act except in respect of the question of private arbitration, because as we've already articulated, that cannot be imposed without consent made by the Commonwealth Parliament.

PN412

Schedule 9A and B, particularly B, where it refers to the guarantee period, has to be a reference to the period of time whereby we guarantee, we commit to the continued provision of the terms of the underlying relevant previous state award. When you approach that paragraph with that perspective in mind, and you look at again the comma, and the words 'and thereafter', it is the clear intention from the authors of this document, LiveBetter and the State of New South Wales is that the obligations of the Fair Work Act, that is the ability to require arbitration, only arise at the end of the guarantee period. That's the point of the comma, and the words 'and thereafter', and also the comma and the words 'and afterwards', in the transfer terms of the letter.

PN413

Then you ask yourself the question, what is the guarantee period? Is the guarantee period something that the parties said in their letter to their employees of two years? Or is the guarantee period the period of time that the Commonwealth Act requires there to be a provision of the same terms and conditions? This Commission must arrive at the conclusion that we are required, under a copied state award to continue to provide the same terms and conditions as were available under the previous relevant state award for a five year period. With that borne in mind, when you look at the full sentence in schedule 9B, it is plain that what the parties intended and that's the question that needs to be asked, what is the intention of the parties? The parties intended for the application of the Fair Work Act to apply in full after the period of the time in which the same terms and conditions were guaranteed.

PN414

Now, what is the length of that term? We'd like it to have been two years. But we are required by the operation of section 768AO for that to be a five year period. So, I arrive back at my submission about the four textual features as to why it's concluded that at the end of the five year period, required to be the guarantee period by operation of section 768AO, that is when we have consented to arbitration being available.

PN415

Anything short of that would be to avert the process of statutory construction. A statute overrides a written agreement of the parties, to the extent of the inconsistency. Well, there's an inconsistency and that is any reference to a two year period, it simply cannot be maintained when regard is had to the five year period required by section 768AO. That's the first of my four points in reply. My second - and the next three are really rather quick.

PN416

My learned friend takes issue with the description of jurisdictional, referring to the necessary steps in clause 25 of the copied state award. I simply point out that clause 25(ix) mandates the necessity of the steps. The clause provides that the use of the words:

PN417

If the matter is unresolved following the use of these procedures, the plain and ordinary purpose of those words, [the last 11 words of subclause 9] is to indicate to the reader that each of these steps need to be jumped over before you get to the Industrial Commission.

PN418

It stands to reason, there can't be a small disagreement in the workplace and the very next thing that occurs is everyone rushes off to the New South Wales Industrial Relations Commission. There has to be some effectively, triage in process, through the jurisdictional steps that we proffer. Whether you want to use the term jurisdictional or not, they are steps that are required to be satisfied before one can go to the New South Wales Industrial Relations Commission and that is plain by the final level word of subclause 25(ix).

PN419

That's the second of my four responses. The third reply is, I simply underline the submission that I made earlier about the absence of documentary evidence. It is incumbent upon us to make the argument why there is not – why we have a jurisdictional objection, that's why I went first in the oral submissions. But it is incumbent upon any moving party, that is the applicant to a proceeding to come before a court or a tribunal and demonstrate sufficient basis, in this case, evidence to justify the invocation of the jurisdiction. We simply point out, there is a paucity of documentary evidence to further the necessary, what I call jurisdictional steps, but can otherwise be described as simply steps that are required before the jurisdiction of the New South Wales Industrial Relations Commission is invoked.

PN420

My fourth and final point, it's said to the Commission that in referring to correspondence, it was in reference to Ms Baker's understanding of the length of the guarantee period and the operation of the respective clauses. No disrespect to Ms Baker, my client's employee, but what Ms Baker understands to be the nature of an agreement, matter not a jot; it is totally irrelevant as to what a third party thought was the construction of a written agreement. You have a written agreement in front of you, the relevant terms of it. What she thinks was the effect of it, is no better than what someone sitting in my waiting area thinks is the terms of the agreement. It's a question of what you think is the terms of the agreement. So, assertions made by Ms Baker matter not a jot for the purposes of construing the provisions.

PN421

They are my four submissions in reply, and that brings me to the end of my reply submissions. Thank you, Commissioner.

PN422

THE COMMISSIONER: Thank you. Anything further you wish to say, Mr Slevin?

PN423

MR SLEVIN: Thank you, Commissioner. Just one thing, 768AO doesn't refer to the guarantee period. You'll find that in the legislative scheme. It's referred to in my friend's initial submission at paragraph 6 at page 72. It's an expression used in the New South Wales legislation that led to the machinery of the transfer that occurred. So, it's actually – it's paraphrased here at subsection 6. It's subsection 14(5), which is in our bundle that we provided you with, Commissioner at 373, top right hand corner numbering and it talks about a transfer agreement may specify an employee guarantee period. That's where that expression appears to come from in the legislative scheme.

PN424

THE COMMISSIONER: Thank you. Mr Haddrick?

PN425

MR HADDRICK: I don't mean to be ping ponging this back and forth like a tennis match.

PN426

THE COMMISSIONER: Oh no.

PN427

MR HADDRICK: I don't agree with that characterisation of where that expression comes from. Even though my learned friend is very correct, section 14 of the New South Wales Enabling Act, which is the last document in our bundle of materials, at subsection 5(b), it is an expression of the employment guarantee period. That means you would have heard me say before, there's two different expressions used in schedule 9. There's Guarantee Period and there's Employment Guarantee Period. One has two words; one has three words. They all have capital letters, only one of them is defined in the Act. The expression Guarantee Period is not defined in the Act, and you will see in schedule 9 of the agreement, the words Guarantee Period, as I just open it up. The words Guarantee Period in sub B of schedule 9, do not have as a precursor the word 'employment'.

PN428

So, there are two different, very similarly worded definitions. One has three words, one has two words, or expressions that have work to be done under agreement. Employment Guarantee Period has work to be done for the purposes of schedule 9C where there are restrictions on what we can do with the employees during the Employment Guarantee Period. We can only terminate them for serious misconduct and under the proper application and reasonable disciplinary procedures, and by agreement with the relevant transferring employees. That's the only reasons we can terminate the employment during the three word Employment Guarantee Period.

PN429

But there's no actual definition of the word Guarantee Period anywhere in the 459 page agreement. I've looked for this very issue. There is no definition of it and we say, absence a definition, then one looks to the purpose that's sought to be achieved by the sub B, and the purpose is clear in my submission, that is to delineate between a period of time when we are bound to provide the employee with the same terms and conditions as under the previous relevant state award, and after that period of time. That's why the comma, and the words 'thereafter' are used, because there was two periods of time that have been referred to in the after time the provisions of the Fair Work Act and its machinery provisions apply. Prior to that point in time, only the relevant state award applies, and that's why I took you to the very precise wording of the words 'relevant industrial instruments' which are defined terms, and the reference to them covering or applying immediately prior to the Completion, capital C Completion, being the Completion of the agreement.

PN430

So, I just – it would not be fair for me not to draw attention to their being two different expressions that are similarly worded. One that you'll find in schedule 9B is not defined and it must give way, it must give way, to the operation of section 768AO, otherwise you would be allowing the parties to contract out the operation of a statute. That's clearly inconsistent with basic statutory interpretation principles. Those are my submissions.

PN431

THE COMMISSIONER: Thank you. What do you say about the two different terms that are used there, Mr Slevin?

PN432

MR SLEVIN: That the term Employment Guarantee Period is used in section 14 of the State Act. That's clearly what's being referred to in schedules 9 and 10 of the agreement. The context of those two schedules where those terms are used, make that abundantly clear. Nothing further.

PN433

THE COMMISSIONER: Anything further from either of you before I adjourn?

PN434

MR HADDRICK: No, not from me.

PN435

MR SLEVIN: No, thank you Commissioner and we're grateful for the assistance of your Associate in preparing the court book, thank you.

PN436

MR HADDRICK: Yes, very much appreciated.

PN437

THE COMMISSIONER: Okay. Thank you, parties. I will now adjourn and reserve my decision.

PN438

MR HADDRICK: Thank you.

ADJOURNED INDEFINITELY [12.46 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

NARISSA M MARAT, AFFIRMED..................................................................... PN28

EXAMINATION-IN-CHIEF BY MR HADDRICK............................................ PN28

EXHIBIT #R1 WITNESS STATEMENT OF NARISSA M MARAT DATED 03/06/2022 PN35

CROSS-EXAMINATION BY MR SLEVIN......................................................... PN35

RE-EXAMINATION BY MR HADDRICK......................................................... PN49

THE WITNESS WITHDREW............................................................................... PN53

EXHIBIT #A1 LETTER OF 05/07/2018 FROM LIVEBETTER TO ROSLYN DRINKWATER................................................................................................................................. PN339

EXHIBIT #A2 LETTER TO MR TIM CURRAN, CHIEF EXECUTIVE OFFICER OF LIVEBETTER FROM THE CPSU DATED 19/03/2019................................... PN341

EXHIBIT #A3 LETTER TO MS TEGAN BAKER, HEAD OF HR AT LIVEBETTER COMMUNITY SERVICES FROM THE CPSU................................................ PN343

EXHIBIT #A4 LETTER OF 24/11/2021 FROM THE CPSU TO MS TEGAN BAKER, HEAD OF HR, AT LIVEBETTER COMMUNITY SERVICES........................................ PN345

EXHIBIT #A5 EMAIL FROM TEGAN BAKER TO SHARNEY CHALMERS SENT 07/12/2021 AT 2.57 PM............................................................................................................. PN347

EXHIBIT #A6 LETTER FROM THE CPSU DATED 20/12/2021 TO MS TEGAN BAKER, HEAD OF HR AT LIVEBETTER COMMUNITY SERVICES...................... PN351