PN1

THE SENIOR DEPUTY PRESIDENT: Yes, could I have the appearances, please.

PN2

MR F McMAHON: McMahon, F, your Honour, seeking permission to appear on behalf of the Tuna Industry Association.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN4

MR A CRABB: If the Commission pleases, Crabb, initial A, appearing for the AWU.

PN5

THE SENIOR DEPUTY PRESIDENT: Thank you. You really don't object to Mr McMahon appearing?

PN6

MR CRABB: No objection.

PN7

THE SENIOR DEPUTY PRESIDENT: There are definitely potentially complex issues that I think it will assist the Association to be represented by you, Mr McMahon, so permission is granted.

PN8

Before you say anything else, I just want to flag a potential threshold issue that I think we need to address, which is the relevance or otherwise of section 163 of the Fair Work Act. I don't know if you have had a chance to consider it. I know we've just handed a copy to you, but I don't know whether you had actually looked at this previously. I don't want to paraphrase it, but I guess potentially it does have relevance to this application. What do you say, Mr McMahon?

PN9

MR McMAHON: Your Honour, we have, wrongly or rightly, dealt with this question, I suppose, that rules being made in relation to modern awards, as such, and since 2010, there have been, as far as we're aware, three matters that have arisen: one came through the employer themselves, the other two, however, did come through the Fair Work Ombudsman and were referred back to Fair Work simply to confirm what I had advised the Fair Work Ombudsman at the time and that is that the Fair Work Commission had established quite clearly that these people were award free and that that matter had been settled, full stop.

PN10

THE SENIOR DEPUTY PRESIDENT: Yes.

PN11

MR McMAHON: Since then, it has arisen via a court case but it has never been re-agitated. There have been a number of reviews and so I guess in terms of this, we have believed that the decision of the Full Bench in 2009 and the fact that it has never been re-agitated since, that this would not concern us, so I didn't address it in my application, but I am happy to address it by way of further submissions, if that is satisfactory.

PN12

THE SENIOR DEPUTY PRESIDENT: Hasn't the Federal Court issued a decision saying that the relevant part of the industry is covered by this award, by the ports award?

PN13

MR McMAHON: The award in question was never raised by any of the parties either in what we would call the maritime industry or in the wild catch fishing industry at the time.

PN14

THE SENIOR DEPUTY PRESIDENT: I understand. I am referring to the more recent Federal Circuit Court matter, Fair Work Ombudsman v Australian Wild Tuna Pty Ltd & Anor [2016] FCCA 2626. I thought it was not contested that the award does cover the relevant - - -

PN15

MR McMAHON: Sorry, where are you in the - - -

PN16

THE SENIOR DEPUTY PRESIDENT: This is the decision of the Federal Circuit Court on 12 October 2016. Do you know what I am referring to?

PN17

MR McMAHON: 2016?

PN18

THE SENIOR DEPUTY PRESIDENT: That is the citation I am reading here. This is the Federal Circuit Court.

PN19

MR McMAHON: Yes.

PN20

THE SENIOR DEPUTY PRESIDENT: Which made a declaration that there were contraventions.

PN21

MR McMAHON: Yes.

PN22

THE SENIOR DEPUTY PRESIDENT: Because the employees were not paid in accordance with the award. The contraventions were admitted, they weren't contested, so there's not a lot of reasoning, I don't suppose.

PN23

MR McMAHON: Yes, I understand.

PN24

THE SENIOR DEPUTY PRESIDENT: We don't need to debate this now. My suggestion would be that we deal with the application, the relevance or otherwise of section 163 as a threshold issue because once that's disposed of, then I guess the rest of it, we can deal with that, if you like, the merits of the matter, yes.

PN25

MR McMAHON: Move on, yes.

PN26

THE SENIOR DEPUTY PRESIDENT: This is just a mention, I've got - there's a Full Bench - but I would think this is something that could be done in writing on the papers.

PN27

MR McMAHON: Yes. I have with me Mr Brian Jeffriess, who is the CEO of the relevant association here, but Mr Jeffriess is also an office holder in a number of the major seafood industry wild catch fishing industry councils and, as far as the case is concerned, if you did want to have some understanding of how that went, Mr Jeffriess would certainly be in a position to briefly advise you of how that got into the pathway, so to speak.

PN28

THE SENIOR DEPUTY PRESIDENT: I think it is probably not necessary at this stage to hear from him on those matters. My suggestion would be that we address just this issue of section 163 separately and in writing so the Full Bench can deal with it on the papers.

PN29

MR McMAHON: Yes.

PN30

THE SENIOR DEPUTY PRESIDENT: Would you be happy with that? Is that acceptable to you?

PN31

MR McMAHON: I believe so, yes.

PN32

THE SENIOR DEPUTY PRESIDENT: All right.

PN33

MR McMAHON: It's a rerun of what's been before, but that's important for this section, I understand.

PN34

THE SENIOR DEPUTY PRESIDENT: I don't know how long you would want. I am in your hands a bit in terms of how long would you want to put your submissions together on this?

PN35

MR McMAHON: Most of the evidence - as you know, this went on for two years. This is about one-tenth of documentation involved, but the evidence in relation to what led to the Full Bench decision last time would be reasonably easy to reassemble. I think probably a couple of weeks, just the same.

PN36

THE SENIOR DEPUTY PRESIDENT: I am not asking you to argue the merits. The question, I guess, is really that there's a special rule about reducing coverage.

PN37

MR McMAHON: Yes.

PN38

THE SENIOR DEPUTY PRESIDENT: If it was established that, in fact, despite what you say, the award does cover, I guess, tuna fishing in this case, or the fishing industry, then there seems to be a limitation on the Commission reducing coverage, if you like, once it exists.

PN39

MR McMAHON: Yes.

PN40

THE SENIOR DEPUTY PRESIDENT: I am suggesting that rather than arguing the merits at this point, it is more of a legal issue.

PN41

MR McMAHON: I understand, yes.

PN42

THE SENIOR DEPUTY PRESIDENT: And, I guess, to some extent, a factual issue as well.

PN43

MR McMAHON: Yes.

PN44

THE SENIOR DEPUTY PRESIDENT: Mr Crabb, what do you think about that? Will you want to make submissions on this?

PN45

MR CRABB: Thank you, your Honour. We will just reserve our right to make submissions, if need be.

PN46

THE SENIOR DEPUTY PRESIDENT: All right. Is two weeks enough?

PN47

MR McMAHON: I think so.

PN48

THE SENIOR DEPUTY PRESIDENT: What I suggest is we give you two weeks from today to just address the threshold issue of the application of section 163 of the Fair Work Act. So written submissions on that matter and the matter will be dealt with on the papers, unless there is some reason why that is not appropriate, but we will assume the Full Bench will be able to deal with it on the papers.

PN49

MR McMAHON: Yes.

PN50

THE SENIOR DEPUTY PRESIDENT: I don't know whether there is really much else we can do today. I don't really want to get into the merits of the application at this point.

PN51

MR McMAHON: No.

PN52

THE SENIOR DEPUTY PRESIDENT: Anything else? I think we can adjourn. We will issue formal directions. Thank you.

ADJOURNED INDEFINITELY [10.16 AM]