PN1

JUSTICE ROSS: Could I have the appearances please?

PN2

MR WARD: Your Honour, I appear with Mr Kingston for Australian Business Industrial New South Wales Business Chamber, Norfolk Island Chamber of Commerce and I also appear today for the Australian Hotels Association.

PN3

JUSTICE ROSS: Thanks, Mr Ward.

PN4

MR CLARKE: Mr Clarke for the ACTU.

PN5

JUSTICE ROSS: Thanks, Mr Clarke. It might be convenient to deal firstly with the issue about the directions. I think the main change in the proposed directions is in paragraph 3, is that right? And then there's a dispute about the scope of the evidence. If we can adopt the amendment, also put in a fourth direction with liberty to apply and then we'll see what the evidence is and you can raise it at that point, Mr Ward, if it creates any difficulty for you about the scope.

PN6

We've received your written submissions from each of you and your submissions in reply and we've had the opportunity to read through those. It's really what did you want to say in addition. We have a number of questions as well about it. What's the easiest course to - for you, Mr Ward?

PN7

MR WARD: Your Honour, I must say I contemplated whether or not I just stood up and just said what are your questions, of which I suspect there will be many. Your Honour, absent taking that approach, I was going to simply address seven, possibly eight issues only but I'm in your Honour's hands. If your Honour wanted simply to go to questions, I - - -

PN8

JUSTICE ROSS: No, no, that's fine. If you address your issues and then we can deal with questions either on the way, if they arise, or at the end.

PN9

MR WARD: I suspect the questions will arise.

PN10

JUSTICE ROSS: Right.

PN11

MR WARD: Can I indicate to the Commission that the approach I intend to take this morning very briefly is to talk about these matters. I want to commence by talking about what might be described as our motivation, because that seems to have been a little lost and implicitly has been caricatured by the ACTU in a way which isn't correct. I think it's then appropriate that I go straight to the relationship between section 143 and section 154 and what section 143 requires. I then intend to deal with the question of whether or not the landmass of Norfolk Island is the same as the Territory of Norfolk Island and whether or not it matters.

PN12

I then intend to deal with what seems to be the gravamen of the matter which is can a coverage term apply to only a part of a state or territory, or does section 154 prevent that occurring. I then intend to briefly deal with whether or not section 154 still concerns itself with effect rather than the words adopted, and then I intend to pose the question if our clause 4.1 fails, does our alternative proposition in our reply submission survive. Then I would briefly address in very short order section 589, and when I say I want to go to those matters, it's not my intention to talk ad nauseam about them, I just intend to make some key points.

PN13

Let me start with motivation and my friend has called this submission novel. It certainly is a challenging submission and it certainly challenges everybody, with respect, in the body of the court today. What we are trying to ensure is that in very unique circumstances a fair and relevant minimum safety net is established for employers and employees on Norfolk Island, and respectfully the Commission cannot assume that there already is one. The modern awards that currently apply have been applied arbitrarily to employers and employees on 1 July without any proper consideration.

PN14

The employment arrangements on Norfolk Island were never subject to award regulation as the rest of Australia was. Norfolk Island was never within the contemplation that this Commission Fair Work Australia or the Australian Industrial Relations Commission through the award modernisation process. It was never within the contemplation when awards were made in 2010. It was not within the contemplation of this Commission during the 2012 transitional review.

PN15

Norfolk Island operates on a materially different economic and social context to the mainland and that can be said in a very cursory and simply way without it being particularly controversial. It is in every sense quite a unique and social setting. It is wrong, with respect, to assume in that context that the 122 modern awards, or at least those that might apply to Norfolk Island today, actually establish what section 134 requires. That is the establishment of a fair and relevant minimum safety net.

PN16

Now that, with respect, is an inconvenient truth. It's all very well to say well surely, Mr Ward, prima facie all of these awards would be fair and relevant minimum safety nets for employers and employees. Now if we were arbitrarily applying those awards for the first time to Queensland or arbitrarily applying them for the first time to New South Wales, that might be so. But the nature of Norfolk Island, the nature of its economy, its society, its industrial history, its industrial regulatory history is so distinct that that would be a dangerous assumption to make.

PN17

In our respect submission, it's more probably than not that section 138 has been offended by the arbitrary application of those awards for Norfolk Island. That is, it's more probable than not that terms and conditions in some of those awards go beyond that which is necessary to establish a fair and relevant safety net for employers and employees on Norfolk Island.

PN18

Now I'm not going to suggest for a moment that what we're dealing with is very, very unusual. It is. It's extraordinarily unusual in that after everything we've gone through in Australian jurisprudence for a hundred odd years, leading up to award modernisation and the making of the modern awards has been done absent consideration of Norfolk Island. So the idea at this 11th hour we just drop Norfolk Island in is a very unusual and very unique circumstance. But in the context of what is occurring, that is we're dropping Norfolk Island in, we're dealing with a round peg in one case and a square hole in the other. So we start from the proposition that our motivation is not to avoid 122 modern awards, our motivation is to ensure that there is a fair and relevant minimum safety net established for employers and employees in Norfolk Island. That's our first proposition.

PN19

Now let me deal in brief with the relationship of section 143 to section 154 and I'll deal a little bit with section 143 at the same time. In our written submissions we raise the question of the opening language of section 154, and if I take the Commission to it very, very briefly. The opening language in 154(1) is and I quote:

PN20

A modern award must not include terms and conditions of employment.

PN21

I'll leave the quote there. We raised the question as to whether or not a coverage term constituted a term and condition of employment. Mr Clarke seemed to concede in his opening submissions that a coverage term may not be a term and condition of employment as contemplated in those opening words. I'd love to embrace that as a proposition but I have to say that we would struggle with that.

PN22

JUSTICE ROSS: Well, even if he does concede it, that doesn't bind us.

PN23

MR WARD: You might not agree with it. No, no, it doesn't bind you at all.

PN24

JUSTICE ROSS: You touch on, in your submission, on this point, section 43 and you say that deals with it. Can you expand on that point?

PN25

MR WARD: I can in this sense, your Honour, and I'll answer the question perhaps in a long way. We have endeavoured to try and find whether or not there was any rational logic for the adoption of terms and as the Bench will be aware the phrase, "term and condition of employment" appears in various places. The phrase, "term" appears in various places, most notably section 139 and the term "coverage term" appears in section 143.

PN26

Section 43 seemed to be something one had to give some consideration to because it sought to characterise what it said with the main terms and conditions of employment. Section 43(1) is in these words. It says:

PN27

The main terms and conditions of employment or an employee that are provided under this Act are those set out in (a) the National Employment Standards; (b) a modern award, (see Part 2-3).

PN28

I think in our written submissions we say well, that might on one reading be said to mean that everything in Part 2-3 constitutes a term and condition of employment. We said on another reading one is qualified, it says:

PN29

The main terms and conditions of employment of an employee.

PN30

That seems to get us back to the more traditional view that terms and conditions of employment are those that the employee enjoys; annual leave, sick leave and the like. I think the view we formed in our written submissions, your Honour, was that doesn't seem to determine the issue because it does seem to leave open for some debate whether or not it's the former or the latter.

PN31

JUSTICE ROSS: I suppose there's also the title of chapter 2.

PN32

MR WARD: There is, your Honour. The conclusion we think we have to accept is that irrespective of what might be described as some lazy use of language throughout the statute, I think we have to accept that section 143 does not stand independently of section 154. The reason we came to that conclusion is a different thing and that is section 168. Because in 168H, if I take the Bench to that quickly.

PN33

JUSTICE ROSS: This is the enterprise award section.

PN34

MR WARD: It's the enterprise award section dealing specifically with state reference instruments. You'll see in section 168H it says this:

PN35

Section 154 which deals with terms that contain state based differences does not apply in relation to state reference public sector modern awards.

PN36

You really can't have that provision in an Act and the, with respect, claim that section 143 stands independently of section 154. So the view that we ended up with which we have accept I think, irrespective of what the ACTU concede, is that section 154 does have work to do in relation to coverage terms. They don't stand independently of each other. In this sense they need to be reconciled. They both have a job to do and we need to find the formulation where they both have appropriate work to do. So we don't argue that a coverage term is not in some sense qualified by section 154. It's not our intention to argue that a coverage term is not a term and condition of employment as contemplated by section 154. It would be nice to do that, but I just don't see how we can, given the structure of the statute. So the job is one of reconciliation between competing parts of the Act. It's also important to understand that we're not just reconciling section 143 and 154. We're also reconciling the fundamental work that section 134 does as well.

PN37

Could I take the Commission briefly to section 143? It is uncontroversially a mandatory term. I think putting aside attempts by the ACTU to artificially constrain what constitutes a class, which we've dealt with in writing, it seems to us that the important parts for our primary argument, or our alternative, are these sections. Clearly a modern award must identify the employers and employees it covers. Section 143(5) describes the way that can be described for employers. It says, "may be specified by name or by inclusion in a specified class or specified classes", and "employees must be specified by inclusion in a specified class or specified classes." The purpose of that is to make sure that there is clarity in who the instrument applies to, and that's what it's trying to achieve, but it's relevant to note that we can in fact name the employers. That is an express option provided. 143(6) then has - this is a proposition, and the first two words are pivotal:

PN38

Without limiting the way in which a class may be described for the purposes of subsection (5), the class may be described by reference to a particular industry or part of an industry, or particular kinds of work.

PN39

Those classes that are expressed as examples do not create a genus that limits the opening words. Those opening words are as broad a statutory formulation as can be thought of - "Without limiting the way in which a class may be described" - the broadest possible. So on its face, before I get to section 154, it should be accepted straight away that we could name the employers, we could the describe the employers in relation to the sector they work in, we could describe the employers by way of a geographical location. If one looks at 143 in isolation, 143(6) is in the broadest possible terms. So it's the reconciliation of that exceptionally broad expressed proposition that section 154 has to do that we're obviously concerned.

PN40

JUSTICE ROSS: Just before you leave 143, so the importance of a coverage clause is brought home by subdivision (c), so it governs the question of whether or not a modern award imposes obligations and entitlements on a person. So it determines whether a modern award applies, because it applies when the award covers them and when it's in operation. Is that how you see the coverage clause working and the work it does?

PN41

MR WARD: Yes. I mean, it's absolutely pivotal and essential, because it tells you who the award applies to, and that arises from other sections of the Act in the 40s(?), which talks about coverage in an application.

PN42

JUSTICE ROSS: Yes.

PN43

MR WARD: And obviously that gives rise to rights, benefits and obligations, and it's critical that it's understood; therefore who is covered by them, who it applies to.

PN44

JUSTICE ROSS: Right.

PN45

MR WARD: Absolutely. And it has very much an essential role to play in how modern awards are formulated. Let me then deal with what I will no doubt get a lot of questions about, which is the question of: is the land mass of Norfolk Island a Territory of Norfolk Island. I'll deal with that first, and then I'll deal with this question of part of a territory or state. I accept that it might be said that this is a clever idea; I might accept that some people might even describe this as a cute idea - - -

PN46

JUSTICE ROSS: I don't think anyone is saying that, Mr Ward.

PN47

MR WARD: Well, the inference that one draws from the ACTU's submission is something like that, and I mean "clever" in a sense of humour. The general submission of the ACTU is essentially this: well, look, really the land mass of Norfolk Island is really the Territory of Norfolk Island, and you know, there's a bit of hocus pocus going on the way Mr Ward has described it and you shouldn't really be deluded by that, it's really the Territory. That might sound good, but it's simply not true. It's just not true.

PN48

As we identify in our written submissions of 24 July, there is an unambiguous definition of what constitutes the Territory of Norfolk Island, and rightly or wrongly, the Territory of Norfolk Island is bigger than the land mass of Norfolk Island. It includes Nepean Island, it includes Phillip Island, and it includes some rocks and the like in addition. One of the questions the Bench asked was, well, is there any businesses transacted on those other islands. We don't shy away from the fact that there are no business premises permanently located on those islands. We understand, as best as we can find out, that in the summer months tours are led to those islands, certainly Phillip Island.

PN49

It might also be the case that some public sector employees, such as parks rangers, go to those islands as well, but we don't cavil - we don't hide from the fact that there's no permanent establishment there. There are vast parts of Australia where business doesn't operate - vast parts. There are vast parts of Australia where business doesn't operate and from time to time employees do actually go there, but there's no physical premises there. But the simple fact is, like it or not, the land mass of Norfolk Island is simply not the legal definition for the Territory of Norfolk Island.

PN50

VICE PRESIDENT HATCHER: You could do that same device with any state or territory.

PN51

MR WARD: Sorry, your Honour?

PN52

VICE PRESIDENT HATCHER: You could do the same device with any state or territory. You could do mainland NSW, so Lord Howe Island is excluded; you could do the island of Tasmania.

PN53

MR WARD: Your Honour, that gets back to the question of can you have a part of a state or territory without offending section 154. I don't hide from the fact that we've got to answer that question, but I just answered the first question, which is don't accept the proposition that the land mass of Norfolk Island is the same as a territory. And the reason why that's relevant is we think that that disposes of section 154(1)(a), and most of their argument seems to be about 154(1)(a) in their submissions. Now that doesn't get us over 154(1)(b) but it's very clear, in our respectful submission, that the landmass of Norfolk Island is not a reference to the Territory.

PN54

JUSTICE ROSS: Can I just raise two questions in relation - that relate to that proposition at least.

PN55

MR WARD: Please, your Honour.

PN56

JUSTICE ROSS: You mentioned that - and in your submission that some private sector employers may operate guided treks on Phillip Island.

PN57

MR WARD: Yes.

PN58

JUSTICE ROSS: During the summer months. What would apply to them when they're on Phillip Island doing that?

PN59

MR WARD: Your Honour, as - I had to concede that as clause 4.1 is currently worded something other than the instrument we're seeking to apply would have to apply. I can't hide from that. It's not very convenient to say that but I can't hide from it because at the moment the instrument as worded says on Norfolk Island.

PN60

JUSTICE ROSS: When you say at the moment, what am I to read into that, if anything?

PN61

MR WARD: Sorry, your Honour.

PN62

JUSTICE ROSS: So the instrument on its face - - -

PN63

MR WARD: Yes, the instrument on its face does that, yes, your Honour.

PN64

JUSTICE ROSS: What about the - and this is a point taken up in the ACTU's submission, the reply to the issue - one of the issues raised in the earlier document, would the proposed interim award cover additional employers or employees if the reference in clause 4.1(a) of the document to Norfolk Island was instead a reference to the Territory of Norfolk Island?

PN65

MR WARD: Well, it might capture those persons taking tours, your Honour, but it wouldn't in any material sense differ, no. No, I can't hide from that.

PN66

VICE PRESIDENT HATCHER: Apart from trying to avoid the effect of 154, what is the motivation behind the description of the award as applying only to the island of Norfolk Island?

PN67

MR WARD: Well, your Honour - - -

PN68

VICE PRESIDENT HATCHER: Is there any bona fide industrial motivation or is it simply a means of avoiding 154?

PN69

MR WARD: No, no, your Honour, the bona fide industrial motivation is that for all intents and purposes the people we're interested in protecting work on that island, when they work on that island. It might be true that somebody might take a tour to Phillip Island but the simple fact is that's the island they work on.

PN70

VICE PRESIDENT HATCHER: What about a fisher person or tourist fishing venture or some sort of other tourism thing that goes off the coast to the island?

PN71

MR WARD: Well, I've got to say, your Honour, I hadn't contemplated that. I don't know if they do that.

PN72

JUSTICE ROSS: You're not interested in protecting those who do the guided tours on Phillip Island?

PN73

MR WARD: I possibly am, your Honour, but I don't have enough instructions at the moment to find out whether or not they're a big mass or is it voluntary, is it - I just don't know at the moment, your Honour. I don't know. I mean - - -

PN74

JUSTICE ROSS: So at the moment we don't know of any work really that takes place other than on Phillip Island landmass.

PN75

MR WARD: I'd have to say, your Honour, that I can't say with any effective certainly that at this date, at this time, these things occur. I can't do that, your Honour, I'm sorry. I'm not instructed to do that. Not in the sense that I'm instructed not to do it, I just don't have enough substance.

PN76

JUSTICE ROSS: No, no.

PN77

MR WARD: I understand that the rangers do go onto those islands on a regular basis.

PN78

JUSTICE ROSS: Sure, but they're probably - - -

PN79

MR WARD: But they're excluded because they're in the public sector.

PN80

JUSTICE ROSS: They're also covered by an enterprise agreement.

PN81

MR WARD: Yes, they are, yes. It wasn't a device, your Honour, it was simply the fact that - I must say we actually considered whether or not we even needed to cover the whole of Norfolk Island, because when one arrives there one will find that there's effectively a hub which is in a particular part of the island which is where 98 per cent of the employment actually occurs. So it might well be that that hub itself deals with most of it, but it wasn't advice simply to avoid section 154, it was the fact that those - that location is where these people are and we wanted a fair and relevant minimum safety net for those people. That's all. It's being portrayed as a device.

PN82

VICE PRESIDENT HATCHER: So to think this through, you could have an award which applied to the island of Tasmania with lower rates and conditions than other modern awards?

PN83

MR WARD: Well, I don't think - now we're getting to the part debate. I don't think you can because that would offend on its face immediately section - well I should be careful. Does your Honour - I don't know what Tasmania is, your Honour.

PN84

VICE PRESIDENT HATCHER: Well, you've got the island - - -

PN85

MR WARD: You mean something other than the State of Tasmania?

PN86

VICE PRESIDENT HATCHER: - - - it's an island to the south. We've got Bruny Island, you've got King and Phillip Island.

PN87

MR WARD: I didn't - well, I wasn't aware of that.

PN88

JUSTICE ROSS: Yes, there are islands. So you could have an award which covered the island of Tasmania with lower rates and conditions and then you could have another award with the same lower rates and conditions covered King, Phillip and Bruny Islands.

PN89

MR WARD: Yes, on the logic we advance the answer would have to be yes and that gets back to this. Do you accept that 154(1)(b) allows for part of a state or territory or not? If the answer is you form the view 154(1)(b) is specifically designed to ensure not only that you can't have a part but that you must have all states and territories, then we fail.

PN90

VICE PRESIDENT HATCHER: I mean, it's a major proposition because it invites the ides that we could have a whole series of regional awards.

PN91

MR WARD: Yes, I don't - I'm not shying away from that, your Honour, and I'm happy in due course to take that head on. I'm not suggesting it's an easy path to travel for us but I'm happy to take it head on. Does your Honour have any more questions about the Territory of Norfolk Island?

PN92

JUSTICE ROSS: No, thank you.

PN93

MR WARD: Let me come to the part issue, and I need to explain as best I can in relatively short terms why we thought this might be available to us. The first thing that seemed to be interesting to us was that there were various awards in the jurisdiction of the Fair Work Commission that seemed to be comfortable doing something very similar to us. Now we concede the obvious one we found was an enterprise award but there is an award called the Christmas Island Award and I might just hand up three copies of that. This is the Christmas Island Administration Enterprise Award 2016. Its coverage is found in clause 3 and says:

PN94

The enterprise to which this modern award relates is the enterprise that constitutes the Indian Ocean administration established to administer the minister's responsibilities on Christmas Island.

PN95

Then it says employer:

PN96

This enterprise award covers the minister for the time being administering the Territory of Christmas Island or appointed delegate of the minister in respect of employees covered by this award.

PN97

It then goes on to say that:

PN98

The award applies to all of the minister's employees on Christmas Island.

PN99

While we acknowledge that's an enterprise award it did seem to suggest that there was sufficient scope in applying 154 - - -

PN100

JUSTICE ROSS: But 154 doesn't apply to enterprise awards.

PN101

MR WARD: It doesn't apply to state publish reference instruments.

PN102

JUSTICE ROSS: Well, what about 168A? In subsection (1) the provisions of this division, dealing with enterprise awards, "have effect despite anything else in this part".

PN103

MR WARD: Sorry, your Honour, can you take me to that?

PN104

JUSTICE ROSS: Section 168A(1) and it's talking here about division 7, additional provisions applying to modern enterprise awards, and it says:

PN105

The provisions in this division have effect despite anything else in this part.

PN106

MR WARD: Your Honour's answered the question for me. No, your Honour.

PN107

JUSTICE ROSS: Yes.

PN108

MR WARD: That's where we started our inquiry though. What also became evident in making that inquiry is that there are a vast number of instruments regulating named employers, I'll come back to the named employers in a moment. Now we didn't think we were necessarily wasting our time completely in advancing this proposition for this reason. When we argued the Broken Hill case before the Full Bench of this Commission we actually put to the Full Bench - and I'll come to Buchanan J's judgment in a moment - we actually put to the Full Bench this very argument.

PN109

That is that you can't because of section 154 regulate part of the state or territory. It's if you can't regulate the whole you can't regulate the part, and that didn't seem to find any favour with the Full Bench of this Commission in the Broken Hill decision, and I'll take the Commission briefly to that. Now I don't have the transcript for the proceedings for this but can I simply say - and I don't think it will be debated - that just about every argument Mr Clarke has advanced against me today I advanced against him in that case, perhaps not as eloquently as Mr Clarke has done, but that was done.

PN110

This was a case which was considering whether or not to maintain a series of district allowances. Section 139(1)(g) wasn't raised in the case before the Fair Work Commission. That was later raised before Buchanan and Flick JJ in the Federal Court, North J. What was put by ACCI in those proceedings, that is the proceedings before the Fair Work Commission Full Bench, was in effect that district allowances have been in section 154 because they either were determined by reference to a state or territory or because they applied in part but not all of Australia. The relevant parts of the decision are found at paragraph 53 and at 53 the Commission says:

PN111

The main reason for this decision is simply that the current transitional district allowances provisions cannot be retained in awards consistent with section 154 of the Act.

PN112

And in that sense the Commission go on to explain why they dispose of the Western Australian and Northern Territory allowances, and I think one infers from reading the reasoning there that that was because they were directly determined by reference to those states, and while it's not expressly stated, it seems to suggest that they failed 154(1)(a). From paragraph 57 on, the Bench come to the notion of Broken Hill and while it's not particularly clearly reasoned, at paragraph 62 the Bench explain why they formed the view that they can keep the Broken Hill allowance. They say:

PN113

We note that the Broken Hill allowance is in different terms to the transitional provisions relating to district allowances in Western Australia and the Northern Territory. The entitlement for the allowance is specified in the four awards and is expressed as a percentage figure of the standard rate under the award. It does not require reference to any other instrument. The calculation of the allowance is therefore straightforward and the allowance is not a term or condition of employment determined by reference to state or territory boundaries.

PN114

Now it could be said that the Full Bench there only turned their minds to section 154(1)(a) but the whole argument of section 154 was put to the Full Bench including what 154(1)(a) and (1)(b) meant. That argument included that you couldn't have the allowance because regulating part of a state is the same as trying to regulate a state rather than the whole of Australia. So as that stood it seemed to suggest that you could have part-regulation, that is reginal regulation, to adopt your Honour the Vice President's words. Now I know it's said against us that the Federal Court decision kills that idea.

PN115

We're not so sure it does. We're not so sure it does, and I'll take the Commission to that briefly now. The Australian Chamber of Commerce and Industry and others were aggrieved by the Full Bench's decision on the Broken Hill allowance. They thought if that decision offended section 154 they'd take the matter up to the Federal Court and Buchanan, North and Flick JJ deal with that matter. The majority decision is that of Buchanan and North JJ. Flick J for his own reasoning arrives at the same outcome though, and it should be noted straight away that in simple terms the Federal Court dismissed the matter and I'll take in a moment about the reasoning in this decision, but the decision of the Fair Work Commission Full Bench stands.

PN116

It's important to make a number of points about this decision. A great deal of criticism is levelled in this decision against the Australian Chamber of Commerce and Industry's position by Buchanan J. I'm not suggesting that's a wrong thing to do. I think Buchanan J suggests that ACCI's position was one of form over substance and a variety of other criticisms were levelled. Ultimately we have this to struggle with in this decision. We acknowledge that Buchanan J expresses some views at paragraph 38 of the operation of section 154. The ACTU have gone to those. There's no debate about that.

PN117

The basis upon which the matter was disposed of though is more effectively described as a consideration of the relationship between section 139 and section 154. That is in the end the essence of the reasoning in this decision is that section 139(1)(g)(iii) expressly provided for location allowances and in reconciling that against any work 154 had to do, there was a view that 139(1)(g)(iii) should prevail.

PN118

JUSTICE ROSS: And that's at 39?

PN119

MR WARD: It is, your Honour, yes. Now we accept that one could take Buchanan J's views at paragraph 38 to suggest that you can't have regional regulation. I'll use that phrase, it seems to be useful. But we also take the view that it might be open to suggest that you could have regional regulation. That is, he doesn't really turn his mind to it. The real issue he turns his mind to is the reconciliation of 139(1)(g)(iii) with section 154. So we ended up finding ourselves in a world where the Fair Work Commission Full Bench seemed quite happy even when confronted by all of the 154 arguments to say you could have some form of regionality.

PN120

The Fair Work Commission Full Bench didn't deal with 139. The matter is challenged in the Federal Court and it appears principally to be dealt with in terms of reconciling 139 with 154. Now we also noted in our written submissions there was no attempt in 154 to include the phrase "part of" when it deals with a state or territory and for those reasons - and they might be poor reasons, the might not be successful reasons, but it was with those reasons in mind that we sought to pursue the phraseology of clause 4.1 as we did. It wasn't for some devious or mischievous way, trying to get around section 154. It was because we had a view that the question of regionality may not have necessarily been able to be said to have been resolved by the Federal Court and we had a judgment from the Fair Work Commission Full Bench suggesting regionality was available. Now we can't say any more than that on that issue and we don't suggest we can say it any higher than that either. That is how we framed clause 4.1 and that is why we framed it, not as some artificial contrivance or device. Does the Bench have any questions on that for me? No? Thank you, your Honour.

PN121

VICE PRESIDENT HATCHER: But do you draw any distinction between the reasoning of Buchanan J and that of Flick J?

PN122

MR WARD: I think I must say I did some - I didn't do justice to Flick J. You tend to read Buchanan J's and then you read Flick J later. Flick J seems to be even more concerned with the reconciliation of section 139 and section 154. He just goes straight to the heart of it's all about the reconciliation between those sections.

PN123

JUSTICE ROSS: Indeed he said there would be considerable force for the argument absent 139.

PN124

MR WARD: Yes. Yes, absolutely right. Yes. Yes.

PN125

VICE PRESIDENT HATCHER: He saw 139(1)(g)(iii) as a straight exception to 154.

PN126

MR WARD: Yes. Yes, he's not even entertaining a conversation too much about what 154 means. He has just gone straight to 139. So I think it's important that we say that we weren't just flying a kite with this. It's a considered view that the question of regionality really hadn't been dealt with by the Federal Court. It had been dealt with by the Full Bench of this Commission though and it was dealt with in the affirmative. That is, you can have regionality. Now it might be said that that is all wrong and we fail. It might be said. Certainly the ACTU say that with vigour. If that is the case then we have advanced in our reply submissions an alternative proposition.

PN127

That alternative proposition is that we would propose if we fail on the current wording of clause 4.1 to simply name the employers that this award would apply to. Section 143 expressly contemplates the ability in a modern award to name the employers. It's an express provision. Section 143(6) is very clear that you can describe the class of employees with the broadest possible ambit and with respect, subject to what I say in a moment, we can't see any argument that the naming of employers could be said in any way to be determined by reference to state and territory boundaries, nor could it be said to express in words that the award will operate in one but not all states and territories. We simply don't think that's available.

PN128

JUSTICE ROSS: Do the employers that would be named only operate businesses on Norfolk Island?

PN129

MR WARD: Some might, yes, your Honour. In the same sense that there are various other awards that might say that sort of thing as well. I don't think that defeats us in any way, shape or form. That gets to effect, your Honour - sorry, I apologise, your Honour. That would get to effect, which I'll come to. That's a bit like the Ski Lift Award. The Ski Lift Award is said to apply in alpine regions where you have ski lifts. Now the effect, the true effect of that award is it isn't ever going to apply on Christmas Island. It's never going to apply in the Northern Territory.

PN130

But that doesn't cause any anxiety with section 154 because of the change between the Workplace Relations Act language and the change in language in the Fair Work Act. So if the Bench accept that our submissions on effect are right, and I think the ACTU appear sheepishly to concede that, simply naming the employers in the alternative does not offend section 154 and is expressly contemplated. Expressly contemplated in section 143.

PN131

VICE PRESIDENT HATCHER: So are there any employers on Norfolk Island who also operate on the mainland?

PN132

MR WARD: I think the answer is yes, your Honour. I think the answer is yes.

PN133

VICE PRESIDENT HATCHER: So how would they be dealt with?

PN134

MR WARD: Can I just say this, I'm currently seeking instructions as to those employers who in the alternative would be identified, and the reason why I'm saying that is that it is possible that there are some very large employers on Norfolk Island whose economics of their business really have nothing to do with Norfolk Island, and them being on Norfolk Island is the same as being in Tasmania, is the same as being in the Northern Territory, the same as whatever. It might be that they will not be included on the list of employers because they're simply not really exposed in their business model to the Norfolk Island economy, the Norfolk Island society in the way that others are.

PN135

So I haven't got an answer for that yet, your Honour, because I don't have a complete list. I don't have a complete list, but it wouldn't be - I'll give you an example. Let's assume that there's a multinational hotel chain that happens to operate an accommodation establishment on Norfolk Island. It would be difficult for me as a matter of merit to argue that that hotel chain finds itself in the same situation as Bob's Corner Shop on Norfolk Island finds itself in, in terms of the fair and relevant safety net. My sense is they probably won't ask to be included.

PN136

VICE PRESIDENT HATCHER: So on that approach for example you could say employers who are members of the Norfolk Island Chamber of Commerce.

PN137

MR WARD: No, you could, your Honour. Yes, you could. We even contemplated that. We contemplated that. That seemed to be a possibility. I thought we might have some very creative argument put against us about freedom of association or something, so we kind of dismissed that. But I think you could do that, yes. Yes, I think you could. The reason why we'd prefer in the alternative to name them is section 143 expressly contemplates the fact that you can name them. It seems to be a far more suitable alternative proposition if the first one dies.

PN138

VICE PRESIDENT HATCHER: It's a bit hard to work out whether there's a jurisdictional issue without actually knowing who you propose to include, isn't it? For example on one view if you just went through the list and included every single employer that operates on Norfolk Island, that might be attacked as just doing indirectly what you can't do directly. Whereas if you selected some group of employees who have something about their operations which has some special Norfolk Island-ish character about it. For example Convict Tourism or something, it might be a different position.

PN139

MR WARD: Your Honour, we'll have to turn our mind to that if our primary position fails. I'd ask the Commission not to get too caught up with the indirect direct thing. I think the primary question in that maxim is you can't do indirectly what is prohibited directly. It would be our submission that there's no direct prohibition on naming the employers. There's no direct prohibition if you accept the notion that the language of the Act changed between the Workplace Relations Act and the Fair Work Act, and the notion of effect is no longer as relevant as it was under the Workplace Relations Act.

PN140

If effect is still relevant then lots of awards of the Commission fail. The Alpine Award is a good example, it would fail immediately. It's never going to have effect in the whole of Australia. The Maritime Award is never going to have effect in the ACT. Unfortunately there isn't a coastline in the ACT. So certainly the effect of naming them might be containing, but we say in our written submissions in detail the very fact that the language changed as it did from the Workplace Relations Act to the Fair Work Act was to ensure that effect no longer was relevant.

PN141

So I think one has to focus one's mind on that as an issue rather than get too caught up in the delights of the indirect direct debate. He has to prove first of all that what we're doing is prohibited by section 154 before you even get to that debate, and we would say if we name them it's not prohibited. Can I deal with that question of effect and I just make sure it's clear. If I ask the Commission to go to our written submissions of 24 July and go to paragraph 46, we set out there the language in section 576T(1) of the Workplace Relations Act, and this is the predecessor section to section 154. The Commission will see, and we've emphasised the relevant words, that 154(1)(b) used to be phrased with "do not have effect in each state and territory", and we have explained in some detail in these submissions how the change in language between that and the current language has a material impact. The current language is expressed to blah blah blah "one but not all." If "do not have effect in each state or territory" still applied, as we've said, a number of awards would fail. The Alpine Award is the obvious example.

PN142

VICE PRESIDENT HATCHER: But "effect" is talking about legal effect, isn't it, not practical operation?

PN143

MR WARD: I think, your Honour, it's talking about practical operation. It might very well be talking about both. When one looks at the definition of "effect", it's broad enough to connote the notion of a result, an outcome. That is its ordinary grammatical meaning. If one looks at, say, the Alpine Award at the moment, the outcome, the result of the coverage term in that award means it doesn't have effect in each state or territory. A number of awards wouldn't. We think the purpose of changing this language was very obviously to make sure those types of awards were secure. Awards may very well, not actually, have effect in lots of places, as long as the words don't say that they're limited. We think that's the proper understanding of the shift in language between the Workplace Relations Act and the Fair Work Act.

PN144

But in that sense, identifying employers in name, expressly contemplated by section 143, might - a bit like the Ski Lift Award - have a particular effect in terms of what it implies, but doesn't offend section 145 because it doesn't actually say that. It might well be that, as a matter of application, we name an employer who does work today only on the island but might do work tomorrow somewhere else. That might be a merit argument, but it's not a jurisdictional argument, as is the case that the fact that employers on Norfolk Island might operate under different terms and conditions, as your Honour the Vice President has seen recently, within a short walk in alpine Resorts, people operate under different terms and conditions. It's not unusual. So we think that if the primary submission fails the alternative submission is available, properly understood is expressly contemplated by section 143, could not on any proper understanding be said to offend section 154, and the attempt to suggest it does because of the effect argument we say is not available, because of the change in language between the Workplace Relations Act and the Fair Work Act.

PN145

I'm going to deal very briefly then with section 589 and then I'll take my seat. It's a great day when the code authorities come back. I think the Vice President in the younger days in a different life is to suggest I dragged out King v Wallace just about every chance I got. It's important to understand what we're saying and what we're not saying about 589(2). We don't see 589(2) as a jurisdictional issue at all. We're not suggesting for a moment that 589(2) ousts 156; we're not saying you can ignore what's in 156 because you can use 589(2). If we were saying that, then the code authorities might have some work to do. We have simply said that we are asking you to make a modern award under 156.

PN146

We acknowledge in our written submissions that you must exercise your judgment in the context of section 134, and we're asking you to do that and make an interim decision, that is, make a decision temporarily pending a more involved hearing. The Bench might say well, Mr Ward, we're simply not able to exercise our judgment to a point where we're satisfied with what is being proposed meets section 134, temporarily or otherwise, so be it; it can't make the decision. But that's the exercise of judgment, the exercise of discretion. It's not a jurisdictional matter.

PN147

589(2) simply says that in a matter you can make an interim decision; there's a matter before the Commission. At inquiry, in our submission, should we get heard on the interim award - and we've only chosen the word "interim award" because we're all industrial practitioners and it has a sort of meaning; what we're really effectively saying is make a modern award with a particular lifespan and make it through an interim decision.

PN148

When you're weighing that up as a proposition, again we would ask the Commission to be mindful of what we said at the beginning, which is this is a very unique situation, and with respect to the Commission, you should be, with respect, as troubled as we are about whether or not there is a fair and relevant minimum safety net today for the employers and employees on Norfolk Island.

PN149

And that, we say, is the secret source that might compel you to believe that this is an appropriate circumstance where you would exercise your judgment and institute a modern award, subject to all the other arguments, for an interim decision. Because if there was any concern, based on what we've already put, that a fair and relevant minimum safety net is not currently established, that is a primary statutory obligation, and it's reinforced quite firmly by the obligation of section 138; that is, you can only make a modern award to the extent that it does meet the modern awards objective, and on a prima facie view, we believe it's more likely than not that the administrative application of modern awards on Norfolk Island offend 138. We think it's easier to come to that view, given a cursory understanding of the history of Norfolk Island - its economic, its industrial regulation - than it is to come to the conclusion that, hey, don't worry about it, just because these awards were fine for the mainland, they're fine for the people of Norfolk Island.

PN150

VICE PRESIDENT HATCHER: But underpinning all of this is a legislative decision that Norfolk Island is to be integrated economically and socially into the Australian mainland.

PN151

MR WARD: That's fine, your Honour; that's a laudable objective of the Parliament. It doesn't necessarily suggest that you jump from that to say the application of awards create an entirely different context, automatically make a fair and relevant minimum safety net for those people. So I don't cavil with the idea that the Parliament wants Norfolk Island embraced in the national system. I'm debating how it's embraced. That's what I'm debating.

PN152

If the Commission pleases, those are the oral submissions we wanted to add to our written submissions.

PN153

JUSTICE ROSS: Thank you, Mr Ward.

PN154

MR CLARKE: There was a bit of effort devoted at the commencement of that about what was motivating the application to be made and that it wasn't about being tricky and it wasn't about trying to get around section 154 and so forth. Two of the matters that were said to motivate the application were the fact that Norfolk Island, not the island of Norfolk Island but Norfolk Island is not subject historically to award regulation and the other was the industrial regulatory history on Norfolk Island, and again those matters were referred to just a moment ago.

PN155

What is being sought here is motivated by at least in large measure by the fact that you had self-government in Norfolk Island and an industrial relations system by the government of Norfolk Island that doesn't apply anymore and disapplies anymore - and disapplies now. It's about the transition from one to the other that applied to the landmass of Norfolk Island and the Territory of Norfolk Island because it was the regulation of the government of Norfolk Island.

PN156

In relation to what was said about employees, classes of employees and classes of employers, we've referred in our submissions to the proposition that a class of employees or a class of employers must necessarily take into account the expressions employees or employers. A class of employees and a class of employers must say something about that employment, and indeed the provisions in the Act that we've referred to talk about a modern award covering or applying to an employee in relation to particular employment.

PN157

Taken to the nth degree there is nothing wrong with modern awards applying like the phone book. Here's one for the employees that start A to K and here's one for the employees that start from L to Z, that's a class. Well, the employees whose surnames start from A to K or L to Z or whether they're Collingwood supporters or whether they're Trump supporters, it's simply inconceivable - - -

PN158

VICE PRESIDENT HATCHER: Are they an overlapping class? Most likely.

PN159

MR CLARKE: I don't know who you all support so I'm going to refrain from answering that question. But it is simply inconceivable that a law that's concerned with workplace relations and the establishment of a fair and relevant safety net comprised by a number of awards would embrace the concept of completing arbitrary classes of employers covered by awards and employees covered by awards, without any reference to the work that's actually performed.

PN160

This proposed award contains no reference to the work that's actually performed. It refers to classification descriptors. The classification descriptors refer to what you did at school and how long you've worked there for, they say nothing about the type of work that you do. Think about the type of industries that this would displace. It's said that in the other material supporting this that it would operate in - one of the major industries there is accommodation. Have a look at the classification - have a look at the coverage terms in the Hospitality Award. It describes an industry. It describes what that industry means. It describes what the exceptions to that description of industry are. It describes what the award doesn't apply to. It talks about the work of employees, picking up glasses, removing food plates, ordering and stock control, parking guests cars, taking reservations, greeting and seating guests. Cleaning duties using specialised equipment and chemicals. That's a class. It's a class of employees. It tells you what their actual work is. This doesn't tell you what their actual work is. It says nothing about their particular employment.

PN161

In relation to the point about Norfolk Island being a landmass being separate and distinct from the Territory of Norfolk Island. I mean we've made the point in our submissions that there is no employment on those islands. The tour operators that take guided treks out there, who's conducting those guided treks? Clearly they're employees who are employed on Norfolk Island. They're within that description that's offered in the award of the employees that are covered by the award. It's not the case that were all the boxes ticked and this enforced that you would have the modern award system as we know it applying on Phillip Island and whatever other rocks are out there, and this applying on a landmass of Norfolk Island because the tour operators that go out to those islands are based on Norfolk Island itself. That's where the employment is.

PN162

His Honour the Vice President's quite right and it's a point that we make in our submissions, that if this is correct there's nothing wrong with cutting the territory in two, applying two identical awards to them and saying well here's an award that applies to the left-hand side and here's an award that applies to the right-hand side. In the end you've achieved the same thing but the magic in it, the magic in it is said to be but we don't say territory. That solves the whole problem apparently. We don't say territory. We don't use that expression. The word territory isn't actually expressed so we're home.

PN163

We'll just consider this; if that's the case what's section 154(1)(a) - what's the difference between section 154(1)(a) and section 154(1)(b). When the Full Court considered what section 154 means, it said that there was some overlap but also some differential between what section 154(1)(a) were getting at and what section 154(1)(b) was getting at. If what section 154(1)(b) means is you're home provided you don't use the words "stable territory", there's nothing to distinguish it from section 154(1)(a). There's nothing to distinguish it.

PN164

The invitation to simply ignore what a Full Court of the Federal Court has said about the purpose of section 154, the objective of section 154, why section 154 - what section 154 does, it's just not a submission that ought to be made in this place. The decision, the making of the decision in that case required the court to determine what section 154 was getting at, what it meant, and it did and we're stuck with it.

PN165

There was - the effect of the provisions is clearly relevant on the basis of the construction that the court has given us of section 154. References were also made to well, how does all of this work in the context of the other awards that have been made in particular enterprise awards, and your Honour drew attention to one answer to that proposition which is section 168A.

PN166

I'll also point out that I did examine the Christmas Island award. That award was made by way of an order that referred to a decision that was given in transcript. That transcript is 23 May 2016. It was a day of hearings in which a number of enterprise awards were made by consent with relatively short submissions but one of the submissions that was made in support of the Christmas Island consent enterprise award was that it applied to a geographically distinct part of an enterprise.

PN167

Low and behold when one looks at the relevant provisions of the Fair Work Act and the relevant provisions of schedule 6 of the transitional provisions of the Consequential Amendments Act, it was permissible to have an enterprise award applying to an enterprise or part of an enterprise and a permissible part of an enterprise included an enterprise - part of the enterprise that was geographically distinct, and you'll find that at item 17 of - sorry, item 6 - no, I think it's actually item 2 of schedule 6 of the Transitional Provisions Consequential Amendments Act and section 168A(4) I think it was - sorry, A(5) - A(6).

PN168

So the fact that there is a reference to Christmas Island in the coverage terms of the Christmas Island Award doesn't condition the coverage in as much as it is a description of the fact that there is a geographically distinct part of an enterprise.

PN169

VICE PRESIDENT HATCHER: Sorry, just to be clear because it applies to an administrative entity - - -

PN170

MR CLARKE: Yes.

PN171

VICE PRESIDENT HATCHER: Could you make an award as a modern award do you say?

PN172

MR CLARKE: Sorry, what was that?

PN173

VICE PRESIDENT HATCHER: Could you make that award, that is the Christmas Island Administration Enterprise Award, could you make that as a modern award?

PN174

MR CLARKE: Well - - -

PN175

VICE PRESIDENT HATCHER: Or would it offend 154?

PN176

MR CLARKE: It would offend section 154 if it were to be made today. The path by which it was made is obviously no longer open, there are explicit provisions in the Fair Work Act that say the Fair Work Commission must not make an enterprise award. It was a time limited process to do that.

PN177

VICE PRESIDENT HATCHER: So you're not saying make it as an enterprise award, make it as a modern award.

PN178

MR CLARKE: No, that's - no, we would say you could not make it as a modern award.

PN179

VICE PRESIDENT HATCHER: Because that offends 154(1)(b).

PN180

MR CLARKE: It would offend section 154 and moreover a proper construction of the classes of what our permissible coverable terms should take into account the fact that the once existing legislative pathway to have modern awards that applied only to one enterprise has been cut off. There are two reasons as to why you wouldn't do it now. Conscious decision to cut that pathway off and you just can't do it anymore. You would necessarily have to take that into account when deciding what type of coverage terms you could have now for a modern award.

PN181

Now insofar as there are - there may be other awards that might be said to be defective in some way, it's important to note that there is in effect a validation provision for those that were made during the modern award process. You know, without conceding that there are any that are defective, schedule 5, item 2 and item 14 in schedule 5 of the Transitional Provisions and Consequential Amendments Act. Item 2 of that schedule provided that the Commission could - sorry, that the Australian Industrial Relations Commission was to continue to apply section 576 et cetera, of the Workplace Relations Act as it then was in order to complete the award modernisation process. Item 14 of that schedule provided that once that had been done those awards were taken to be modern awards.

PN182

Insofar as there's some excitement about the vagueness of the coverage terms expressed in the submissions in relation to the Miscellaneous Award, what we would say about that is schedule 5 of the Transitional Provisions Consequential Act also called up the continuing operation of the award modernisation request to complete that process. The Commission were specifically directed by paragraphs 4 and 4(a) of the award modernisation request to create an award, a modern award to cover employees who are not covered by any other modern award and who perform work of a similar nature to that which has historically been regulated by awards. The Commission is to identify this award as such. The modern award is not to cover those classes of employees such as managerial employees et cetera.

PN183

That award is clearly the Miscellaneous Award. The Miscellaneous Award is given a special status in the Fair Work Act because section 163 and section 164 that deal with changing the coverage of modern awards and reducing the coverage of modern awards and revoking modern awards pose a test - post a requirement for the Commission to say well look, 163(1), you can't make determination varying the modern award to stop people being covered by it unless you're satisfied that they'll instead be covered by another award other than the Miscellaneous Modern Award that's appropriate to them. The Miscellaneous Award is defined in subsection (4) as the award that's expressed to cover employees who are not covered by any other modern award.

PN184

Same with section 164, you can't revoke a modern award unless you're satisfied relevantly that they'll be covered by a different award other than the Miscellaneous Modern Award. So the Miscellaneous Modern Award is somewhat of a special creature. It's not special in the sense that as with other awards they were deemed to be modern awards by item 5 - schedule 5 of the Act, so they are what they are. But they have a special - so it was required to have particular coverage terms. It did have those particular coverage terms and it's nonetheless deemed to be a modern award. So the vagueness there is intentional and expressly the coverage terms in that award in such terms is expressly acknowledged by section 163(4). So it's just to deal with some of the matters raised about coverage.

PN185

In relation to the power to make an interim award, it appears that really the argument is that they don't want you to make an interim award at all. They want you to make a modern award and have it operate for a particular period for time, and say that because we want to have it operate for a particular period of time there should be some lesser bar that applies in terms of how satisfied you need to be about the modern awards objective and so forth. I just remind the Commission that the pathway to the making of a modern award in the modern award review, which the applicants voluntarily bound themselves to as the sole source of jurisdiction for what they were seeking, is section 156. Section 156 was already obviously discussed in some detail in the penalty rates decision in the Full Court, and it was accepted - paragraph 29 of that decision - that the power to vary an award in a review was conditional on there being a review to begin with, and the review took its ordinary meaning of surveying and looking back upon the awards, and plenty of authority, including the most recent of the Full Bench decisions that I've cited in our submissions about needing to ensure that the modern award objective is being met and only including terms that are necessary. I could go on about that. I'm sure the point is understood in the submissions.

PN186

The additional point I wanted to make about that, or to emphasise, is that we've made the case that for this award to have any sensible operation you're going to need to vary other awards, and you can't vary other awards under section 163 unless you're going to be satisfied that the workers are instead going to be covered by another award that's appropriate for them. So you're effectively being invited to adopt a lower bar test because of a short operation on what the objective means and what variations are necessary, not only for the making of this award, but to the necessary antecedent step of determining how other awards should be varied. It's a big step, and really, what is being sought is a modern award by another name, without the complexity of having to establish what one would normally have to establish to make a new modern award in a review. I think the rest of the matters that were raised are covered adequately in our written material.

PN187

JUSTICE ROSS: Thanks, Mr Clarke. Anything in reply, Mr Ward?

PN188

MR WARD: Just very briefly, your Honour. I'll just make a couple of very quick points if I can. As to the construction of section 143 and the notion of class, nothing Mr Clarke says disposes of the exceptionally broad language of how the class can be constructed. As we've said earlier, it's the broadest possible statutory construction without limiting it in any way. A class can be described in a complex way, it can be described in a simple way, but we've chosen a simple way, that is, private sector - people employed by private sector employers under certain classifications.

PN189

The Miscellaneous Award has certain things applying to it that make it particular, but we simply drew attention to it because it adopts a simple way of describing classes. In its classification structure, it effectively has somebody who has a trade certificate, somebody who has more than a trade certificate, somebody who has less than a trade certificate and the like. It might be said that those are unusually simple classes of employees; it might be said that describing the class of employers under that award as all employers in Australia is an unusually simple way of doing it, but that doesn't mean it's not comprehended by section 143. So describing a class of employers as private sector employers, as we have for the purposes of Norfolk Island, there's no warrant in the language of section 143 to say just because it's simple it fails.

PN190

What Mr Clarke wants you to read in section 143 is that the examples in section 143(6) are in effect not examples but they're requirements. You've got to go further. You've got to describe work. You've got to describe industry, or parts of industry, and there's no warrant in the statute for that. So we would ask the Commission to be cautious of the very tortured approach Mr Clarke has adopted to the notion of class.

PN191

He says that I'm wrong about a point I made to the Bench earlier. That was the way we've crafted clause 4.1 of our instrument, that if one of the employees covered by that instrument guided a tour on Norfolk Island, he says well that instrument would still apply. That's a delightful possibility to take up, for this reason: that would mean that all we have to do is to amend clause 4.1 to say that it applies to people principally working on Norfolk Island; they may very well work anywhere else in Australia, and we overcome section 154 completely, that is, there's nothing barring the application of that instrument if we simply insert the word "principally." That's a delicious invitation from Mr Clarke - happy to take it up, wasn't one we'd thought of earlier - but if the instrument simply included the word "principally employed", then it would appear that while the effect of it practically might mean that it has limitations, in its words it is not limited in any sense purely to Norfolk Island. It could apply at large across Australia, and we take up that invitation as a potential alternative proposition.

PN192

I don't think we said at any stage that there is a lesser bar to section 134. I've gone back over all the materials we've filed, I've contemplated what I've said - I don't think we said there's a lesser bar. We said there is a problem, and that is, in a very unique situation, the Bench should struggle, with respect, as to whether or not the imposition administratively of the current awards on Norfolk Island employers and employees means that section 134 is not met. It's a unique situation. We have said that in the context of that it's essential and urgently necessary for the Bench to reflect its judgment on these employers and employees and arrive at a conclusion, and our invitation for that is to do that through an interim decision, that is, to do it quickly. Now it might later on through more refined judgment form a slightly different view, but then the Commission accepts that the modern awards objective is not a - it's not fixed, it's not granite. It might from time to time change and the formulation that might give rise to meeting the modern awards objective might change.

PN193

But we're asking you to exercise that discretion in a very unusual and very unique situation and we think it's the appropriate course because of the uniqueness of the situation. Now I've heard what he said about varying other awards. I'm really sorry but our application doesn't seek to vary any award. It simply seeks to have the Commission exercise its powers under a particular part of section 156 and make a modern award. We seek that modern award to be expressed to exclude other modern awards but there is no application before you today to vary anything. We're not trying to directly or indirectly vary.

PN194

We have an alternative application which we filed which was to vary all of those awards. We're currently not pursuing that application. We're pursuing this one, that is the interim award. I accept that if we were pursuing the other application we'd obviously be seeking to vary awards. But in closing I'd just simply say that however he wants to dress that up, the fact is there's no application before you today to vary an existing modern award. Those are our submissions in reply.

PN195

JUSTICE ROSS: Anything further? Thank you both. We'll adjourn and we'll reserve our decision.

ADJOURNED INDEFINITELY [11.07 AM]