Re Australian Railways Union & Ors; Ex parte Public Transport Corporation

[1993] HCATrans 115

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IN THE HIGH COURT OF AUSTRALIA	•
Office of the Registry

Melbourne	No M6 of 1993
In the matter of -

An application for a writ of

certiorari and a writ of

prohibition against THE

HONOURABLE JUSTICE PAUL

MUNRO, THE HONOURABLE DEPUTY

PRESIDENT SIMON WILLIAMS and
COMMISSIONER JAMES PATRICK

O'SHEA, members of the

Australian Industrial

Relations Commission

First Respondents

and

AUSTRALIAN RAILWAYS UNION, AUSTRALIAN SERVICES UNION,

METAL AND ENGINEERING WORKERS

UNION and ELECTRICAL TRADES

UNION

Second Respondents

Ex parte -

PUBLIC TRANSPORT CORPORATION

Prosecutor

Transport 1 13/5/93

MASON CJ
DEANE J
DAWSON J
GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 13 MAY 1993, AT 10.18 AM

Copyright in the High Court of Australia

MR R. MERKEL, OC: If the Court pleases, I appear with my

learned friend, MR L.S. KAUFMAN, on behalf of the

prosecutor. (instructed by the Victorian Government

Solicitor)

MR H. BORENSTEIN: If the Court pleases, I appear for the

second respondents. (instructed by Slater & Gordon)

MR D.J. ROSE, OC:  If the Court pleases, I appear with my

learned friend, MS M. BYRNE, for the

Attorney-General of the Commonwealth to put

submissions on any constitutional aspects, but only

if it seems necessary to do so after hearing the

parties. (instructed by the Australian Government

Solicitor)

MASON CJ: Thank you, Mr Rose. Mr Merkel.

MR MERKEL:  If the Court pleases, we have had handed up to

Your Honours the outline of our submissions.

MASON CJ: Yes, we have it.

MR MERKEL:  And also a chronology. We have also handed up

a folder of background documents which contain the

relevant awards, the Victorian Industrial Training

Act and the two cases which have been described as the TCR decisions of the Commission in 1984, that

is the redundancy decision. That is a

determination change in a redundancy case, which

was a test case which - - -

MASON CJ: There is an enormous volume of material. Is it

all necessary and relevant to the point of this

case?

MR MERKEL:  Your Honour, aspects of it are because they go

to the background which indicates that apprentices

have in the industry always been treated as a

discrete category, subject to discrete regulation,

and whilst the documents are voluminous, there is

only one or two very short passages I will be

referring Your Honours to.

MASON CJ:  I think a greater effort should be made in the

affidavit in support of applications for order nisi to isolate what is the real point or points, and to identify the materials that are strictly relevant.

The reader of these volumes faces an almost

impossible task in endeavouring to identify what

the relevant material is.

MR MERKEL:	Your Honour, I was not a party to the preparation of the material, but can only say this
from a practitioner's point of view: one of the
problems on an ex parte application is to ensure
that the material is properly there so one cannot
Transport	13/5/93

be accused of not having put it all in.	But having
said that, I accept what Your Honour says.

MASON CJ: Well, true, but there is a responsibility to put

it in a form that makes it readily comprehensible,

and you might see if you could convey that message

to those behind you.

MR MERKEL:  I will, Your Honour. If Your Honours please,

can I apologize for some of the typographical

errors appearing on the second page. Can I

indicate to Your Honours that the two logs in

question were the 1986 NWU log, and I ask

Your Honours to note that the ARU log was the 1991

log which appears at the application book, page 22,

and the two relevant clauses are clauses 84 and 85.

Just very briefly by way of background to

those logs, the background stems from the

termination change and redundancy decision in 1984

in which the Commission established certain

standards to apply for termination and redundancy,

and for a regime to be set up as a result of any

occasion that will result in termination of

employment.

As a result of that, logs, with appropriate

ambit, were served and the particular logs in
question, which are referred to in paragraph 2, are

what might be called "classic TCR logs" with ambit.

But the background to the decision in the case is

that apprentices were expressly excluded from the
operation of the TCR provisions, as were persons on
a contract for a fixed term, the notion of

termination of employment, not applying to them.

And the other category that was excluded were

persons on a contract for a fixed task. They,

likewise, on completion of the task, would not be

terminated.

The two relevant awards were the Railways

Miscellaneous Grades Award and the Railways Metal	Trades Grades Award, and I will take Your Honours
briefly to them at a later point in our
submissions. But can I indicate that those awards,
likewise, treated the terms and conditions applying to apprentices in a category apart from the general
terms and conditions applying to other employees,
and so it had been traditionally in the industry.

It is in that context that the 1986 and 1991

logs need to be approached. And if I could take

Your Honours directly to them. As was indicated in

our outline of submission, the dispute which arose,
arose as a result of the cutback in the Victorian
public sector and the failure, alleged by the

unions on the part of the PTC, to employ all of the

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apprentices who had entered into contracts of

employment in February 1989 with, as tradesmen,

when the contracts had terminated by effluxion of

time.

Now, we say what, in fact, happened is the contracts were due to expire by effluxion of time

on 31 January, and the question that came up and

the demand put by the unions, was for re-employment
of the apprentices, in the first instance, to

preserve the status quo, that is, of employment

until a final award could be made.

In the events that occurred there were 118

apprentices, of whom 70 were not to be employed as

tradesmen, therefore their engagement would expire

on 31 January 1993 and the award concerns the 70

who are not to be re-employed. The notifications

of dispute arose out of the Victorian Government's
plans for redundancy and retrenchment, with a

voluntary departure package, and when the matter

first came before the Commission it came before the

Commission as a general dispute resulting from the

Victorian Government's package. In fact the part dealing with all employees other than apprentices

was put aside and adjourned and was to be the

subject of consultation. So that the matter that

in fact proceeded before the Commission at the

hearing on 3 and 4 February was the issue of an

interim award for the apprentices.

Realizing that the dispute concerning

apprentices suffered from the vice of being an

intrastate dispute and also concerning the

contracts of particular individuals and therefore

not an industrial dispute, resort was undertaken to

the earlier logs. Those logs are exhibit 2, and I

take Your Honours straight to them. It is the 1991

Australian Railways Union log at page 22 of the

application book, and the second log which was said

to found jurisdiction was the MEWU log, which is

exhibit 5 at page 84.

I think the terms of the two logs are not

relevantly distinguishable for present purposes.

The logs were comprehensive and the matters dealt

with are set out, and I go to the 1991 ARU log is

the example at pages 23 and 24. Apprentices were

dealt with at page 25 in clause 3, and I should

indicate the reason why the log was based upon a

four year apprenticeship was that that was the

period of apprenticeship required by the prevailing

award. I will take Your Honours to that.

So that the situation with apprentices is that

their employment was regulated by the Victorian

Industrial Training Act 1974. Regulations under

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that Act provided for a form of indenture of

apprenticeship. It was for a fixed term but the

term was open, but under the relevant awards

governing these apprentices the fixed term for

their apprenticeship was four years.

So the award deals with apprentices at

clause 3, the other conditions of employment being

governed by the regulations and the award

provisions. The relevant clauses which have been referred to as the TCR clauses, are 84 and 85, at

pages 41 to 43 of the application book. And can I

indicate at the outset, our submissions in respect

of these clauses are twofold. One is that, having

regard to the background, and on a proper

construction of the logs, the clauses are addressed

to the employer in a manner that would have them

only relate to employees on what were referred to

in the Commission decision under open-ended

contracts. They have no applicability and would

not be seen or understood to have applicability to

employees on fixed term or fixed task contracts,

because their employment would not be terminated by

the employer and they also have no applicability to

apprentices whose industrial regulation was dealt

with elsewhere and would not be seen or understood

by an employer to be dealing with apprentices.

That apprentice exception arises for two

reasons. One is the apprentices have always been

dealt with as a discrete topic and are dealt with

in this log as a discrete topic; secondly, there is

no relevance to termination of employment of an

apprentice who is under a fixed term contract under

an award with no right of re-employment under the

contract. Indeed, the contract, which I will take

Your Honours to in due course, has an express

stipulation that employment on the expiration of

the term of the apprenticeship is not guaranteed.

any event, without resort to the background, in our The clauses on their proper construction, in

submission, lead to that conclusion. Clause 84

deals with the employer not having:

the sole right to commence or terminate

employment.

And the provision of an employer wishing to

terminate employment, we say, has no applicability
to a contract that will expire by effluxion of

time. Then in addition a number of provisions are

set out concerning dismissal and reinstatement and

they bear some similarity to the provisions

considered recently by Your Honours in the Boyne

Smelters case.

Transport 13/5/93

Then clause 85 deals with redundancy and

retrenchment and we say this arises and must be
read together with the notion of termination of

employment referred to in clause 84. There is a

regime sought to be established starting in

clause 85(a) with consultation with the Union.

85(b) deals with the same subject. Preference for

Union members for retention in employment in 85(c).

Transfer to other duties in (d) and then (e):

Where the union agrees terminations of

employment due to redundancy are unavoidable -

there are provisions for a regime to be imposed

upon the employer as to how the termination and the

redundancy is to occur.

And then in 85(e)(iii) at the top of page 43

the provision for payment is dealt with and the

provision provides that an:

employee whose employment is to be

terminated -

and then there are a number of provisions: "two
years' notice"; "redundancy pay"; "income

maintenance" and a number of other matters which

would provide the ambit necessary to enable

improvement of conditions beyond those provided for

in the 1984 TCR decision of the Commission.	And
then in (f):

An employee shall be entitled to the above

mentioned benefits and payments in full

notwithstanding that the employee leaves

his/her employment during the period of notice

of termination given by the employer.

So we say implicit on any proper construction of

the log is the requirement that it will be

activated where an employer is contemplated giving

notices of termination of employment and a payment

provision may arise in the event that notice of
termination is given in accordance with the claim

set out in the log.

Can I now briefly take Your Honours to the

MEWU log, which is at page 84, which is the second

log said to give ambit for the final award made in

the present case. The TCR clauses in that log are

17 and 18; they are at pages 86 and 87, and they

are not relevantly distinguishable from those that

I took Your Honours to.

The provisions concerning apprentices and

juniors in slightly different form; they are dealt

with at clause 24 at pages 88 and 90. Page 89 was

Transport 6 13/5/93

inserted by error. Could I ask Your Honours to

disregard it; it is the same as page 87. And

again, one has the provision, as with the ARU log, for apprenticeship for a fixed term of four years.

At the top of page 90:

Apprentices shall receive the same special

rates and conditions which apply to tradesmen.

and they:

shall receive full daytime training -

And we say that that log likewise would be read and understood by an employer, receiving it in the

context in which it was sent, as not relating to

apprentices in the TCR provisions or to fixed term

contracts.

Can I take Your Honours next to the indenture

under which the apprentices were employed. That is

at page 124 of the application book. Can I

indicate to Your Honour, and I think my learned

friend, Mr Borenstein, will be handing up a copy of the regulation pursuant to which this indenture was required under the Industrial Training Act, but the form of indenture is provided for in the

Apprenticeship General Amendment No 2 Regulations

1973, and that requires a standard form which is in

the form entered into in the present case and is

approved by the State Training Board, which is the

statutory body which regulates apprenticeship under

that Act.

Can I just indicate, Your Honours, at page 124, the term of the indenture is four years and

commencing from 1 February, 1989. There are a

number of provisions at page 125, which I do not

need to take Your Honours to, but they have been
held to create the relationship of employer and

employee. And in clause 4 at page 125:	This indenture shall be read subject to and so
as to require compliance by the parties hereto
with the provisions of the Industrial Training
Act 1975 and the regulations made thereunder
and with any award ..... made pursuant to the
Commonwealth Conciliation and Arbitration Act, 1904, as amended, or the Public Service Act,
1974.

In addition there were employment conditions signed

Authority, the predecessor to the Public Transport by the apprentices with the State Transport the statutory form.

Transport 13/5/93

They provide, particularly in (d), (e) and

(f), but particularly in (d) an acknowledgement

that the employee is -

not eligible to enter the Superannuation

Scheme and that I am not guaranteed employment

on completion of my apprenticeship.

There is a provision in (e):

However, on completion of my apprenticeship,

should a vacancy exist in my trade, I will be

eligible to apply for permanent employment and

Superannuation.

There is another provision about country applicants

in ( f) •

The evidence before the Commission was that in

the past there had been a practice of re-employing
apprentices and that they had a reasonable
expectation on completion of their apprenticeships,

subject to qualifications being achieved and

performance being satisfactory, that they would be

likely to be employed as tradesmen.· · But the

contract, in our submission, is clearly one for a

fixed term expiring as it does on 31 January 1993.

We say that the construction for which we have

contended appears on any view from a reading of the

logs on their own, but can we just indicate to

Your Honours - and this is how we go to the

background material which is referred to in

paragraph 5 of our outline of submission -

Your Honours, in the Shell case, (1992)

174 CLR 345, and I do not need to take Your Honours

to the passage, in the joint judgment of

Your Honour the Chief Justice and Justices Deane,

Toohey and Gaudron at page 360 at point 2, in

discussing the interpretation of the log in the

second sentence, Your Honour said:

And that requires that the log be approached

having regard to the general context in which

it was made.

The authorities footnoted at the bottom of the page

were Kirsch's case and Wooldumpers; particularly

explaining how a log should be approached with a

if I can take Your Honours to a passage from

view to resort to background material. That is in

166 CLR 311, and Your Honour discussed the approach

to the logs at pages 334 to 335, particularly at

335 point 3, where Your Honour said:

Transport 8 13/5/93

However, the accepted approach to the meaning of industrial demands requires no more than

that "the party to whom they are addressed

ought fairly to understand what he is

requested to do on the specific matters which

form the subject of the alleged grievance.

Then Your Honour refers to Kirsch's case, and in

particular it is the last paragraph that has an

analogy to the present case. Your Honour referred

to the understanding in respect of reinstatement

until the decision in the Ranger case, and we say

that applying the reasoning of Your Honour in that

last paragraph at 335 going to the background

material - and if I can just briefly take

Your Honours to the background material, we say it

would be inescapable that an employer reading the
logs I have taken Your Honours to would understand
them to exclude apprenticeships from the operation

of the TCR logs, and had they acceded to those claims, they would have acceded to them in the understanding that apprentices, and any other

persons on fixed term contracts, would not be

governed by those term~nation provisions.

It is in that context, if I could now just

briefly take Your Honours to the background

documents which we have referred to in paragraph 5

of our outline. Can I take Your Honours to that

folder, and even though the folder is voluminous,
the references I want to take Your Honours to in it

are very short.

There are five documents. The first is the

Railways Miscellaneous Grades Award. Could I take

Your Honours firstly to page 28 of that award where

rates of pay of junior employees are dealt with and
at paragraph (b) there is a provision for pay for
apprentices, and then can I go next, and more

importantly, to page 77, which is clause 41 of the

award where the conditions of employment of

paragraph (g) where the award requirement	apprentices are set out and, in particular,
applicable to apprentices at the date of the logs
in question is a four year fixed term. Now, that
was a mandatory term, it was not discretionary, and
that was the award requirement.

Similar provisions prevail in the second

award, which is the second document, the Railways

Metal Trades Grades Award 1953. Rates for apprentices are dealt with at page 26, under

clause 6, and the general conditions of employment
governing apprentices are at clause 22, at pages 57

and 58. Under clause (i) there is, again, a

mandatory, non-discretionary period of

apprenticeship of four years. I should ask

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Your Honours to note that in (j), other conditions are in conformity with the practice of the State

Transport Authority, and I have taken Your Honours

to the documents, or the conditions, of the

employment for the State Transport Authority.

The third document by way of background is the

Industrial Training Act and, again, I do not need

to trouble Your Honours with the detail of that Act

but can I just indicate that Part IV deals with a

legislative regulation of apprentic9ship, that is

at page 259, dealing with the proclamation of

apprentice trades and Division 2 of that part, at

page 260 onwards, deals with the manner in which

apprentices are to be trained, a number of

statutory provisions regulating their employment.

Again, I do not need to trouble Your Honours with

the detail, other than to say that the statutory

provision deals with a regulation that treats

apprentices discretely and apart.

Not included in our documents, but can I just

ask Your Honours to note, was the repeal in 1990 of

the Industrial Training Act - it just may have some
relevance to the 1991 log - and its replacement by

the Vocational Education and Training Act 1990,

which set up a new regime for the training of

trainees who were, in effect, to replace - and

apprentices, in substitution for the earlier

provisions. Now, no new principle arises, they are

still dealt with under separate statutory

regulation.

The last two documents are the two TCR

decisions.	Document 4 is the report of the first
decision handed down on 2 August 1984.	Can I take

Your Honours, just briefly, to a number of passages which make the point that it was clear that fixed

term contracts were not to be the subject of the

case. The ACTU, which was conducting the case on

behalf of the unions, has its submissions

concerning redundancy set out at page 197,

paragraph f, where the ACTU claim specifically

excludes:

employees under fixed term contracts.

That is in the third last line of that paragraph.

Could I also just refer Your Honours to a

short passage in the decision at page 222,

paragraphs d and e where there is, again, an

indication that the intention of the decision is

that it would not apply to contracted employees who

are contracted for a specific job.

Transport	10	13/5/93
MASON CJ:	What use are you making of this?	I have not

quite followed the relevance.

MR MERKEL:	The use we are making of it, Your Honour, is that the Commission treated the claims in the logs
that I have taken Your Honours to as TCR claims
arising, in effect, from the regulation in that
regard, stemming from these decisions and the
background material, in our submission, is such that an employer would recognize the claims as
arising from these decisions and unless there was
some express inclusion of apprentices or fixed term contract employees, any reasonable reading of the
logs, given that background, would assume that
apprentices or fixed term employees are not covered by the claims in the logs.
MASON CJ:	So you are merely using the decisions to back up

the interpretation that you say should be given to

the actual provisions of the log?

MR MERKEL:  Yes, that is the only reason, Your Honour. And

finally can I take Your Honours to the second

decision at pages 697 to 698, starting with

"Exemptions from redundancy clause" - and again, I

will not read what is set out, Your Honour. We

rely on what is set out at those two pages, but

particularly clause 11 of the provision that was to
be inserted in the Metal Industry Award at

paragraphs g and hat page 698, where there is an

express exclusion from the redundancy provisions
of:

apprentices or employees engaged for a

specific period of time or for specified task

or tasks.

Now, we say that the conclusion that one arrives at

is that the notifications of dispute concerning the

non-re-employment of the apprentices was an

intrastate dispute, the resort to the logs as

providing the necessary ambit is bereft of support
within the logs, properly construed and having

regard to the industrial background from which they

stemmed.	So that we would submit that there is no
ambit for the award that was in fact made.	I will

have to come to the detail of the award in due

course, if I might, but it was an award which, in

effect, required the offer of voluntary departure

packages to the 70 apprentices on an assumption

that they were, in effect, open-ended contract

rather than fixed-term employees.

The second way in which it is put, again in

reliance on Wooldumpers and the reasoning in Boyne

Smelters, is that the award lacks any relevant

connection as that has been defined in the cases

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with the dispute, could not properly be said to be

a settlement of the dispute as found. I have not

taken Your Honours to the dispute findings, but at
the back of the documents in respect of each log
there was a dispute finding in terms of the claims

in the log and we would, without taking

Your Honours to it, rely on the principles set out

at page 334 of Wooldumpers, to say that the award

in the present case lacks the necessary connection

it must have with the claims in the log and the

dispute found.

Now we say that when one comes to analyse the

decisions of the Court we say that this is a case
that falls within the Wooldumpers analysis;

certainly not the Boyne Smelters analysis. There

is no express claim in respect of redundancy for

employees; not even a regime in respect of

redundancy for such employees, nor could there be

unless the notion of the fixed term contract
provision required under the two awards was itself

the subject of a claim in the log, which it is not.

The logs are premised upon a four year term, in
accordance with the award, rather than any change;
So we say there could be no logical connection

between the award made and the dispute as found. They are our submissions on the first ground,

the lack of ambit and the fact that there is no

industrial dispute in respect of which the

Commission could exercise its jurisdiction. Those

matters are set out at paragraphs 1 to 5 of our

outline of submission. Could I now go to the

second and independent basis upon which we

challenge the award which was made.

GAUDRON J: This now assumes that the claims did extend to

apprentices?

MR MERKEL: Yes, Your Honour. Assuming we fail on the first

ground, we now go to the second.

DAWSON J: What was the scheme of the award? To make these

people employees, otherwise than under the

apprenticeship contract, so as to extend the

redundancy provisions to them?

MR MERKEL:  We say that that must be an underlying premise

on which the award is based, Your Honour. Although

the Commission disavowed an intention to order re-

employment. But we say that an underlying premise

of the award - and I will have to take Your Honours

to it because it is not easy to follow - but an

underlying premise of the award is that there would

be an obligation on the Government to offer

voluntary departure packages to any employees

applying for it.

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The only persons who could apply for a

voluntary departure package were persons who were

not on a fixed term of employment, therefore for an

award to operate there had to be an assumption that

they were not on a fixed term contract but

employees on an open ended contract. We say that

that really is the point of our second ground, that
the award was premised upon a fiction which the

Commission has no jurisdiction to create and

thereby enlarge its jurisdiction.

DAWSON J:  Why could it not vary the apprenticeship

contract, in effect?

MR MERKEL: Well, it decided not to vary the apprenticeship

contract. Assuming there was ambit it may have
imposed a new obligation on the employer that

superimposed that obligation on the contract and then extended the contract. But for a number of

discretionary reasons the Commission declined to

follow that course and there set out in the

decision reasons such as not enforcing a contract, not requiring the apprentices to in effect compete with a shrinking job market with qualified

tradesmen.

A number of considerations which were really

going to the merits which said that we will not -

in fact had the Commission dismiss the Union's

application for an interim award, which was really to extend the contract of employment, in effect by

preserving the status quo do that when the

Commission came to deal with the matter on a final

basis it would be in a position to say, well we

have the choice of either varying the contract and
extending employment or maybe giving some other
form of relief such as that dealt with in the TCR

decision.

But our second ground really picks up the very

point that Your Honour has put to us.	And can I
Hamilton Knight where that very same point was	just briefly take Your Honours to a passage in
made. Your Honours will recall in Hamilton Knight
the question of the jurisdiction of the Commission
to make an award in respect of pensions payable
after employment arose and there is a passage from
the judgment of Justice Fullagar, 86 CLR 283, at
page 319, which dealt with objects His Honour had
to the various provisions of the award, and to
understand the section can I just read the third
line:

the second provides that the relation of

employer and employee shall, notwithstanding

that the employee may be retired by the

employer, continue so long as the employer is

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entitled to rights under the substantive

provisions for pensions which follow.

Then His Honour, at point 4, sets out the objection to the second provision and says it:

goes deeper, is that where, as here, the

dispute is between employers on the one hand

and employees on the other hand, the

jurisdiction of the Court and of the

commissioners extends only to the creation of

rights and duties between employer as such and

employee as such. Neither the Court nor the

commissioners can enlarge their own

jurisdiction by declaring that a relationship
shall be deemed to subsist which does not in

fact subsist.

And we say that an award in the present case does

precisely that. And if I can now take Your Honours

to firstly the voluntary departure package, which

is at page 100, because the award is premises upon

that package being offered to the employees.	The
process by which this was to occur is that

employees were asked to express interest in whether
they wished to have an offer which would enable

their voluntary departure upon the package offered by the government. At page 2, under the rules for

the VDP as it was called - this is at page 101 -
the package contains a set of rules, but
importantly for present purposes was the first,

that there would be a resignation from employment,

and further down Your Honours will see the third

last point:

Staff on contract or fixed term employment are

not eligible.

That is repeated in the whole scheme of

instruction.	Can I just briefly go next to
page 104, where the more detailed rules are set out

about who can apply, and at line 6 to be eligible,

the third point, it is eligible only for staff

employed:

on an open ended continuing basis.

Clause 4, point 3, at line 20, excludes staff:

employed for a term or contracted period, or

until the completion of a particular job -

then the scheme of payments is set out, so that the

package, by definition, but also in principle,

because it is a voluntary departure, and premised

upon that, can only really be offered to persons

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who, under a contract, are in continuing

employment.

Now, in that context, can I take Your Honours

to the award that was, in fact, made. It is at the

second volume of application book, page 434.	The
award was binding upon the two unions having

coverage of the apprentices - that is the ARU and the MEWU - and the Transport Corporation. It was

to relate in clause l(c) to employees who entered

into an Indenture of Apprenticeship, so it was

defined in terms to relate to the 70 employees who

had been advised that their contracts would expire

by effluxion of time at the close of business on

29 January and that they would not be re-employed

as tradesmen by the PTC.

There is a reference to an undertaking given

on behalf of the Corporation in the transcript, and

can I just give Your Honours the cross-reference in

the application book. That undertaking, at

page 58, appears at application book, page 257. In
effect, it was an undertaking by the Public

Transport Commission that it would not take the point that the fact that the award was made after

2 February would, in effect, disqualify the

Commission from having jurisdiction to make an
award, but that was given without prejudice to the
rights and contentions being put forward by the

PTC. But I do not think anything in the present case turns upon that particular matter.

Then in clause 2, it said:

This Award shall be read as though it is part

of each of the foregoing Awards -

and I have taken Your Honours to those awards, and

we say that the incorporation, by reference to the

awards, makes good the background point that we

made earlier, that it is a substantial departure

from the awards brought in by the side wind of the

earlier logs in giving them an ambit they did not
have.

Then in the definitions, the departure package

is referred to and it is in fact at exhibit 11,

which I have taken Your Honours to, at page 100.

There is a reference to:

"the Transport Superannuation Board is the

Fund established by the -

Act, and can I just explain just briefly, by way of

background, the problem that arose in respect of

superannuation.

Transport 15 13/5/93

Prior to repealing legislation in 1992, an

apprentice did have a right to participate on the

expiration of his apprenticeship to a

superannuation entitlement under the Act. That

provision was repealed and under the regime
applying to the present apprentices, when they

departed, to get rights under the Act they were to

be either retrenched or were to resign, and neither

was in fact appropriate. The Commission was

critical of the Public Transport Commission for, in

effect, saying they had resigned rather than had
been retrenched but, in reality, the definition of

"retrenchment" and "resignation" in the Act did not

comfortably apply to the circumstances of the

apprentice at all; in fact, both seemed to assume

that they would not be entitled on completion of

their package. I just mention that by way of

background, it does not relate to any of the

jurisdictional issues.

Now, the critical clause is clause 4, which

gives rise to the fiction which we say is created

by this award. Clause 4 starts off, in 4.1,

covering an employee:

whose cessation of employment was notified, or

was to be notified to the Transport

Superannuation Board ..... as a resignation from

employment, shall, notwithstanding any

provision, contractual term, or action of the

Corporation to the contrary be entitled in
respect of his or her service with the Corporation or its predecessor to make application to the Corporation for a VDP by

5pm on 10 February 1993.

The second clause is the operative one, which

imposes the duty on the employer. It says that:

In respect of any application for a VDP made

by an employee covered by this Award, it is

the duty of the Corporation to consider and

decide whether an offer of a VDP shall be

made, and for the purposes of such
consideration and decision the employee shall

be deemed to be an employee whose terms of
engagement stipulated that the employee was to
be employed on an open ended continuing basis.

And we say that is the fiction which has been created to, in effect - - -

GAUDRON J: It is not a fiction which goes to jurisdiction,

though, is it, as you seemed to suggest earlier?

It is a fiction that goes to the basis on which an

application is to be dealt with.

Transport 16 13/5/93

MR MERKEL:  We say, Your Honour, and again there may be a

point of contention about it - we say that a VDP in

terms and imposing an obligation on the employer is

only capable of being offered to an employee who

is, in fact, on an open-ended contract. It has no logical application and could have no operation on an employee who is not then employed. We say that

is the underlying premise. If we are wrong on that, then what Your Honour would say is right.

But we say that what is done here - - -

GAUDRON J: Th~ VDP is just a scheme, is it not? It exists

outside the award. I do not know if it has a

statutory base or not, but it just says, "Well, you

treat these people as though this applied to them."

MR MERKEL:  What Your Honour says is correct, but it still

is an offer that is only capable of being made to

employees who are on subsisting contracts of

employment which are open-ended.

GAUDRON J:	Why is that?
MR MERKEL:	Because in terms, that is all it can apply to,

Your Honour.

GAUDRON J: That is all it can apply to? Whose terms?

MR MERKEL:  Its terms are, Your Honour - may I put it this

way in answer to what Your Honour says: if the

scheme was not based upon the VDP and it merely

said that the employer shall offer the following

package to apprentices, then what Your Honour says

is right. If the package was calculated by

reference to criteria that picked up some other

calculation, that would not go to jurisdiction.

But that is not what the Commission has done; the

Commission has deemed them to be employees on

open-ended contracts so that they are eligible to

apply for the VDP, and I say that is the

difference. If that does not go to jurisdiction, then the

second point fails. But we say that the terms, in

fact, used impose an obligation on the employer to

offer to the apprentices the VDP on the basis that

those apprentices are employed on an open-ended

continuing basis. We say that is the fiction.	It
may have been able to achieve the same result by
just a mathematical calculation, but that is not
what they did, and they did not wish to do it
because the VDP itself left open the possibility
that the apprentices could be re-employed.

In other words, the scheme of this award was

not a compulsory retirement package of payment of a

sum of money; it was to set in train a structure by

Transport 17 13/5/93

which the PTC could re-employ the apprentices and

if it did, then it would not fall under any of the

financial obligations in respect of their

departure, and it is only if they did not re-employ

them that clause 2 would require them to make the

departure offer.

But, Your Honour, it really turns upon whether

those words and the structure of what the

Commission has done creates the fiction in the

Hamilton Knight sense, or merely just sets up a

scheme by reference to which a calculation can be

made. We say it is the former and we say it falls

foul of the principle in Hamilton Knight which we

say is correct.

DAWSON J: But even if it is the latter, is it something

which takes place after the employer employee

relationship has ceased to be?

MR MERKEL:  Yes, it does take place, Your Honour, after the

expiration of the term of employment.

DAWSON J: Is it something governing the terms and

conditions of employment in those circumstances?

MR MERKEL:  We would say not, Your Honour, because it is

inherent that it will be offered at a later point,

but on the other hand I do not want to transgress
the undertaking given by the Commission at

page 257, but that undertaking is without prejudice

to all of the Commission's rights. But we would

say that inherent in the scheme was the regulation of a post-employment relationship because it tried

to preserve the right of the employee to be

re-employed and it only activated the VDP

provisions in the event that the employee was not

re-employed. But we say that is why the scheme was

as complex as it was, because it was not just an

imposition of a financial obligation, it went far

further than that and tried to impose a very

different obligation.

We say that the provision that is saying in

deciding the application they shall not
discriminate against the apprentices, in effect

imposed upon them one of two obligations, either to

re-employ or offer a VDP, and both we say are
necessarily created on a fiction of continuous

employment, not a fixed term, or alternatively fall

afoul of what Your Honour has put to me, namely

that they seem to regulate a relationship after

employment. It is one of the two and both would

fall afoul of the power of the Commission.

Transport 18 13/5/93

Clause 3 seeks to, in effect, ensure the

employees do not fall between two stools. That is

at the top of page 436:

An employee covered by this award who does not

make application for a VDP within the time

allotted by this award or who does not receive

or accept an offer of a VDP, or who is not an

employee in respect of whom the Transport

Superannuation Board has been or was to be

advised that the employee had resigned his or

her employment, shall be entitled to be paid

by the Corporation in addition to all other

monies due a retrenchment severance benefit on

the basis that the termination of employment

takes effect from 18 February 1993 and is
deemed to be a retrenchment of an employee

whose original term of employment included a

term that the employee was to be employed on

an open ended continuing basis.

So the same fiction is carried through to clause 3. Such retrenchment benefit shall not be less

than an amount equivalent to the amount -

and then it picks up the amount they would have got

under the superannuation fund, and that is the

imposition on the PTC in the event that the trustee
of the fund does not make a payment, the PTC picks
up the difference. Clause 4 provides that they do

not get any benefit for the period from 29 January

to 18 February.

We would submit that that does fall within the

principle that we have enunciated. It fails in the

same way, we say, as the log in Reg v Gough; Ex

parte Meat and Allied Trades Federation of

Australia fails. That is reported in 122 CLR 237.

It is not on our list of authorities. Could I just
hand up copies of that to Your Honours.	And I just

refer to this decision by way of analogy. That

case concerned a log which is set out in the

opening paragraph of Chief Justice Barwick's

judgment at page 240.

There are two parts to the log: the first was a prohibition upon giving notice of termination and

a second was if a dispute arose under the clause

the Commission could order reinstatement. The

second part of the claim was found to comprehend a

judicial function and prohibition was given against

any proceeding on the log, notwithstanding that the

first part of the log was accepted as being within the power of the Commission. The point we make is

that we say that the various elements of clause 4

are interwoven and interdependent and if the

Transport 19 13/5/93

fiction that we have put forward as being created

by clause 4 as established we would say that

prohibition ought to follow.

Before leaving the question of the fiction, I

should briefly indicate to Your Honours how the

Commission approached in its decision this question

of the nature of the contract of employment.	The
Commission indicated it did not need to decide

whether the contract was for a fixed term or not.

We would submit that it was inescapable that the

contract was for a fixed term but Their Honours

approached it on, in effect, a broader basis.	But
at page 457 to 458 of the application book

Their Honours discussed the contract of employment at the last two lines of the page, where the bench said:

We do not find it necessary to attempt to

construe these terms -

that is of the contract

to test whether in the circumstances that have

arisen, the PTC has a legally sound basis for

contending that the relationship was brought

to an end -

They then discuss that point further and come to a

conclusion on the question of the contract at

page 464, where they reiterate, at line 13:

In the determination of the merits of

this matter we do not consider it is necessary
for us to express a concluded view about the

precise content and effect of the contractual

relationship between the PTC and its

apprentice employees as a matter of law.

And then they found that there was an understanding

that there would be re-employment, and at the last

four lines, lines 21 to 25, the bench says:

Each of the 70 employees had grounds for a

reasonable expectation that a trade position

would be offered upon completion of their term

of indenture subject to certain disqualifying

factors.

The bench returned to that topic at page 476, where

at lines 28 to 30 they say:

We do not suggest that as a matter of

construction of the contract their legal

status ever became other than employees still

engaged in apprenticeship training and

employment.

Transport 20 13/5/93

And the basis on which the Commission proceeded

appears at page 477 at line 12.

MASON CJ: But what is that next sentence on page 476:

The employer acted in a manner intended to

bring the relationship to an end, precisely at

the term of the Indenture. Had the employer

not taken that action, the persons concerned

would not have been disentitled to continued

employment or to payment for it.

That must be a finding: they are in employment

unless the action is taken to terminate the

employment.

MR MERKEL:  I think, Your Honour, that is not the way in

which they approached it. I took Your Honours to

these passages because the bench intermingled two

different strains of reasoning: one is, "What was

the contract of employment?" and two, "What, in

fairness to the employees, should we do approaching

the industrial relationship, ignoring the strict

legal terms of the contract?" We say that it is

clear from the passages we have taken Your Honours

to, but also from the decision itself, that the

Commission never found it had to decide what the

contract was, because it approached the second line
of reasoning, namely, "What, in an industrial

context, should we do?"

MASON CJ:  What do those two sentences mean?

DAWSON J: And the next one, the third one?

MASON CJ: That is line 31 and onwards.

MR MERKEL: Well, we say, Your Honour, it is an acceptance

that the contract terminated on 31 January, because

the employer acted in a manner intended to bring

the relationship to an end precisely at the term of

the indenture. What they are saying is, had the

employer not taken that action, that means by re-

employing them as tradesmen, because their

indentures expired. So that the point, really, is

the only conduct that could be open to the employer

that would have continued or recreated a

relationship was by actual employment of the

apprentices as tradespersons after 31 January, and

that was never done, and there was no finding that

it could have been done or that it was something

that was even a possibility, because they had

indicated the contract would have expired by

effluxion of time in this correspondence in

December.

Transport 21 13/5/93

But we say that the Commission has used

language - and this comes up really at page 477,
line 12 - and we say -

MASON CJ: Yes, that, again, is subject to the same

difficulty.

MR MERKEL:  Yes, and what we are saying is that, on a proper

reading of the decision - and I have only taken

Your Honours to passages where they said, "It's not

necessary for us to decide what the contract was.

The only way in which one can approach this

decision is really on the basis that in the

circumstances we consider it is open to treat the

employees as no longer being, in substance,

apprentices in the sense used in the TCR case.	We
consider them to be equivalent to unattached

employees whose entitlement by custom or practice

to progress beyond that stage was arrested".

Now, we say that that is an industrial

relations, not a legal entitlement. It is
absolutely clear from the reading of the decision
that they never found it necessary to decide the

legal entitlement. But we say, had they found it

necessary to decide it, it was not open to them on

the evidence to conclude that the 70 employees were other than employed on the contract of employment I

have taken Your Honours to.

What Their Honours indicated is that there was
an expectation or a likelihood of re-employment but

no guarantee and, indeed, that is what the contract

says. So we say that these clauses must be

understood not as legal findings but as a basis in

an industrial relations context for saying, "We're

not precluded, as a matter of jurisdiction, from

saying that we can do what's fair and impose

whatever obligation we want because the ambit is

there from the earlier logs".

So we say that one could not find any finding

of fact that says the contracts in fact were not
for a fixed term but were for something other, and

we say if there was such a finding of fact on the

evidence before the Commission, it was not open to

them and it would have been perverse, because there

was no evidence given in respect of any of the

individual employees, 70 employees. There were

individual examples which were no more than

inducing an expectation that there would be a

likelihood of re-employment, and that is how they

expressed it.

So we say that a fair reading - and I do not

want to take Your Honours to all of it, I will take

you to the main passages - results in that

Transport 22 13/5/93

conclusion. So we submit that the award is built

upon a fiction, in the Hamilton Knight sense, and

that is a further ground why there was no

jurisdiction to make it.

Can we now go to the third ground on which we

challenge what occurred.

GAUDRON J: Could I interrupt you there? That really

presumes that one is concerned with the industrial

relationship between the apprentices and the

Transport Commission exclusively. What if one were

looking from the point of the industrial

relationship of the persons who remained in

employment and the Commission?

MR MERKEL:  The bench referred to that in the concluding

passages. At page 481, at line 27 through to

line 35, there was an endeavour by the Commission

to, in effect, source what it was doing in

something beyond the relationship of the PTC and

the 70 employees. But, we would submit that it is

very difficult to understand on what basis that was

really being done, because at page 477 at point 5,

the Commission, at lines 19 and 20, said:

We consider it highly undesirable that we

should set a precedent which might influence

employers against taking on apprentices.

They had departed, fundamentally, in this way from the TCR decision.

GAUDRON J: But that was an industrial consideration rather

than, what I am talking about, a consideration of

relationship. What if it were the case that the

remaining employees said to themselves, "Look, if

they retrench or leave - if they do not have to pay
the apprentices a retrenchment package, they will

retrench them in priority to us, save to the extent

where there is a shortage of tradesmen in their

particular area and there will be fewer

retrenchment packages for us. Therefore, we want

to make sure that the apprentices get the same

retrenchment package, in our interests, so that

they are spread evenly across the workforce".

MR MERKEL:  Your Honour, it is difficult to discern that,

other than as a hypothesis, because the government

had offered the VDP to all open-ended employees,

and it was a matter for them to accept or reject.

The notion that the apprentices, the 70 concerned,

would have their contracts continued, for the
purpose of either re-employment or being offered a

departure package, is very hard to relate, on the

evidence before the Commission, to any interest

that any other employee has.

Transport 23 13/5/93

If it was to create a new regime for apprentices, that would affect the class of

apprentices, but it is not easy in any realistic

sense to relate anything in the evidence that could

justify the other employees having any interest in

the sense Your Honour is raising it with me, in the

outcome concerning the 70 apprentices.

GAUDRON J:  The evidence may be one thing; what I am

querying is whether one can assume that there is an

absence of jurisdiction in all circumstances just

because the employment relationship has terminated
and that provisions such as appear in clause 4 of

the award are fictions, designed to cure a

jurisdictional defect.

MR MERKEL:  Your Honour, we would say - if I can answer in

two parts: on the evidence before the Commission,

we say that is an assumption. It may be that there

are cases where even though a group of employees

has had their employment terminated, what

Your Honour says may be applicable; that there may

be, in the circumstances surrounding their

termination, a legitimate interest that could give
rise to a log on the part of other employees
because they are affected, but we say that is not

an issue that arises in this case because really

the group concerned were discrete; were treated in

isolation and even though there was disputation

about it, it came about as a general disputation

about the Victorian Government's package, but once

isolated down to the apprentice situation, they

really stood as a group apart, and we say that

there was no legitimate interest, other than a

regime for apprentices, which was not the subject

of this award.

Indeed, the Commission was concerned about

creating a precedent, so that we say that there

would be no factual support for that approach that

Your Honour has put as a possibility in the present

case.

DAWSON J:	Where did the interstateness come from with these logs of claims? Were they served on someone
who - - -

MR MERKEL:  A number of respondents, Your Honour. I think

the original claims were served Australia-wide. I

am not sure how wide the respondency is, but we can

find out and give Your Honour the answer to that.

There is no question that the original logs were

interstate claims.

DAWSON J: And you say apprentices were, except in a limited

way, excluded from those logs and therefor this is

essentially intrastate.

Transport	13/5/93
MR MERKEL:	Yes, Your Honour.
DAWSON J: There is a dispute,	I mean undoubtedly there

might be a dispute about it.

MR MERKEL:  There is no doubt about that, Your Honour. Yes,

Your Honour, in the ARU claim the dispute - the employers in respect of whom a dispute was found,

is set at page 47 and they cover similar

authorities in each of the States, or most of the

State. Something similar, I would expect, would be

in respect of the other dispute finding,

Your Honour, for the second log; that is the MEWU

log.

The third basis on which we seek relief is the

denial of procedural fairness or natural justice in
respect of what occurred within the Commission -

the others are at page 96, Your Honour.

DAWSON J: Thank you.

MR MERKEL:  We set out the complaint or the grounds on which

we raised that issue at paragraphs 8 and 9, and

could I take Your Honours to the chronology, just

to give Your Honours the factual background that

led to this ground being raised. In the chronology

that we have handed up to Your Honours, we have set

out the general background, but can I go to the

first page for the period December, 1992 to

January, 1993, so that Your Honours can appreciate

how the proceedings developed in the Commission.

There were various logs by a number of unions

relating not just to apprentices, but to the

proposed restructuring in the public service and

those notifications are set out in the application

book.	The proceedings initially came on before
Commissioner O'Shea.	And can I take Your Honours

to the proposed interim award, which is at

page 139, because when the proceedings first came

before the Commission they were general and it was

only as they evolved that the - sorry, I think

there is a mistake in reference. At page 139 is

the transcript of proceedings before the

Commissioner, but the proposed form of interim award sought by all unions is at page 195.

When the matter came on in the Commission, what was proposed was, in effect, the maintenance

of the status quo to prevent termination, so that

employment relationship was still subsisting and,

on a hearing in relation to a final award, the

as a result, the interim award, which was initially

sought, was to ensure there was no termination of

employment subject to the conditions set out.

Transport 25 13/5/93

Now, the proceedings in the Commission

resulted in a referral of those matters to the

Full Bench and then on 29 January the proceedings

in the Commission commenced and the application at
that point of time was to obtain an interim award
in respect of all the employees, not just

apprentices, so that passages that are set out at

page 205, 211 and 213 were an award of general

application. But at page 217, line 13, the problem

of the apprentices was raised as being discrete and

requiring urgent attention, and that was part of

the submissions put forward by counsel for the

unions.

The proceeding then went into evidence on the

position of the apprentices and four apprentices

gave evidence at the passages we have set out in

the chronology. And then the PTC at that point of
time was raising the issue before the Commission

that there was no power to make an order in respect

of apprentices on the basis, which is not pursued

in this Court, that they were not employees, and

the issue was raised at page 255, line 13, that, in effect, the logs that were being acted upon did not apply to apprentices in any event, and there was

the undertaking that I had referred to at page 257

through to page 259. What the Commission then did

at page 259 line 30 - - -

DAWSON J:	Now you say that undertaking had the result of continuing to the employees, do you?
MR MERKEL:	Your Honour, what was said - I think it is at

page 257 - the form of the undertaking is at

lines 10 to 30 - was expressed by Mr Douglas,

appearing as counsel for the Transport Corporation,

at line 12:

We cannot give an undertaking, Your Honour,

because of the position that we hold as to the

legal position of these people concerned. But

being by us saying this; we would be prepared	the problem may well be resolved for the time	to accept that these people, the 70 odd people
concerned, would be as from the end of today
on leave without pay for whatever period is necessary with respect to this proceeding
being conducted in a full and proper manner.
And that during that period the people
concerned would be regarded by us as being in
the position that they are right at this
moment, whatever that position might be. That
is, at 20 minutes to three on Friday,
29 January. So that we freeze the situation
at that point and during the intervening period regard the 70, the group of 70 as

beyond that.

GAUDRON J:	No, but if the award were quashed on the basis of a denial of natural justice, it having been a
void or voidable decision, then presumably the
undertaking is still there, still waiting for an
award to be made.
MR MERKEL:	Your Honour, all I can say is that it speaks in

its terms - - -

GAUDRON J: Well, perhaps nothing turns on it.

DAWSON J: But it would be still there.

Transport 86 13/5/93

MR MERKEL:  Well if that is the case, then that is the case;

I can only say that what is said, has been said,

and that is the undertaking given, but we would

submit it was really - given the reservations

within it about being without prejudice to the

argument that the employment had in fact

terminated, a fair reading of the undertaking is
that it was to permit the award to speak as at the

date it was made and provided it, in effect,

extended the contract of employment, if that is

what it was going to do, the point could not be

taken that it had been terminated between the day

it was given and the date of the award. And that

is the context in which it was given. It was not given in the context of, in fact, what transpired before the Commission, which did not require any

undertaking at all, because on a termination

payment the award could have spoken at an earlier

date. So we say that the undertaking has proved to

be a non-event in the events that have occurred
but, as I have said to Your Honours, it says what

it says, and I cannot really add to it, other than

to say it was designed and given for a more limited
purpose than that which it has been suggested it

has.

DEANE J: But if you were to succeed on your natural justice

point, which would be on the basis that all that

was before the Commission was an application for an

interim award, why should we, in the context of the

way the matter was conducted, and including your

133 notice, make an assumption that objectively

there is no industrial dispute here? Why should

not we simply, if you succeed on your natural just

point, say, "Well, it's still been at the
application for interim award stage and, in the
context of the way it has been conducted below, the
appropriate course is to send it back, leaving the
respondent free to rely on your 133 notice and to
adduce other evidence to establish the existence of

an interstate dispute if the material currently

there is inadequate to do that"?

MR MERKEL:  Your Honour, I do not think I could contend that

anything that this Court would decide on the three

discrete grounds we have raised would preclude the respondent from really raising an issue before the

Commission. We have confined ourselves to three

discrete grounds and we would say the decision need

not - and we would not put that it should - travel

beyond those grounds. We would say that

jurisdiction sought to be exercised does not exist,

for the two reasons we have put. We would say that

this Court can deal with those grounds and it need

not really go into the quite separate question,

which is not before this Court, as to whether there

was, or was capable of being, circumstances that

Transport 87 13/5/93

gave rise to an industrial dispute in some other

context.

DEANE J: Well, I am really suggesting to you, if you

succeed on your natural justice point, in light of

the fact that the closest you can get to a precise

submission that the old logs did not cover this -

even accepting the apprentices were employees - is

what is on 396, that we should not get involved in

that but should simply send it back so the question

can be fairly and directly addressed in a situation

where_ the points you are taking are made clear to

the other side.

MR MERKEL: With respect, Your Honour, we say that the

question of the ambit in the old logs is a question

which was before the Commission; was relied upon by

the Unions and was raised in the running and was

dealt with by the Commission on an erroneous basis.

We would submit that the decision as to ambit is

one that has been properly and fully ventilated

before this Court and should be dealt with, but it

does not preclude the respondent from raising an

industrial dispute in a different way. But we

would submit, with respect, that the notification

of the PTC should not bear upon that issue.	It is
a separate and discrete question.

It is really as if the PTC is being blamed for

the point about the logs, but we say the logs were
put in issue by being tendered by the Unions, who

moved away from seeking to rely on the dispute over

the apprentices because they must have taken the decision that that did not involve an interstate

dispute.	They sought in their relief to rely upon
the earlier logs.	It is in that context and that
context alone that the earlier logs came up.	The

question of the PTC's notification was not a matter

before the Commission when it dealt with this

interim award.	So we say that in effect the whole
matter has been turned around and we would submit
that it should not be.	So we say it is the Union

that created the question of the logs as the

foundation of jurisdiction. We - - -

McHUGH J: Well, you did submit that it was a purely

intrastate dispute. Your referred us to the

passage on 397 about:

There is no ambit in the logs -

but if you go up three or four lines:

By making that submission, my learned friend

indicates fairly and squarely that the nature
of this dispute is purely of an intra-state

nature.

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MR MERKEL:  Yes, Your Honour, and that is how it was and

that is why the Union moved away from that issue

because it - that is precisely correct. So we say

it is the Union that created what, we say, is the

artificiality which we come here to complain of

because it was a reliance on a log that did not
have the ambit. That is why we said, in our first

paragraph, it was to escape that problem that they

went back to the earlier logs. It was open to them

to do exactly what Your Honour said and it is, no

doubt, still open to them to do it. Nothing we ask

in this Court would preclude them, but we say the

ambit does not exist as a matter of law in the

earlier logs. If the Court pleases.

MASON CJ: Thank you, Mr Merkel. Yes, Mr Borenstein.

MR BORENSTEIN:  Your Honour, might I just briefly indicate

that the application that my learned friend made about the disposition of the matter when it gets

back to the Commission, if it is sent back, is a

matter that I would oppose. I would submit that

the Court ought to give no directions as to how

the - - -

MASON CJ: That the Court ought to - - -?

MR BORENSTEIN: Give no directions about who should hear the

matter if the Court sends it back to the

Commission. The circumstances in the case which my

learned friend relied upon are quite different to

the circumstances that obtain here. In that case

there were questions of the court having passed

judgment on the credibility of witnesses, and so

on, and the issues here are just not the same.

MASON CJ:  Thank you. The Court will consider its decision

in this matter.

AT 4.03 PM THE MATTER WAS ADJOURNED SINE DIE

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