Senator the Honourable Eric Abetz (Special Minister of State)

MEMBERS OF PARLIAMENT STAFF (COMMONWEALTH) CERTIFIED AGREEMENT 2001-2002

Senator the Honourable Eric Abetz (Special Minister of State)

Appeal against dispute over application of agreement.

[1] This decision concerns an appeal by Senator the Honourable Eric Abetz (Special Minister of State) (the Minister) against a decision of Commissioner Deegan dated 16 April 2004.[1]

[2] The decision of the Commissioner arose from a notice by Mr Mathew Stephenson to the Commission on 7 August 2003 under clause 65 of the Members of Parliament Staff (Commonwealth) Certified Agreement 2001-2002 (the 2001 Agreement).[2]

[3] Clause 65 of the 2001 Agreement concerns "Dispute Prevention and Resolution".

[4] In her decision, the Commissioner indicated she was satisfied the dispute before her was a dispute over the application of the 2001 Agreement,[3] the Commission was not restricted in its ability to deal with a dispute concerning a clause in the 2001 Agreement which involves the exercise of a discretion[4] and the certification of the Members of Parliament Staff (Commonwealth) Certified Agreement 2003-2006 (the 2003 Agreement)[5] did not remove the Commission's jurisdiction to deal with a dispute notified under the 2001 Agreement.[6] As a result, the Commissioner concluded the Commission had jurisdiction to deal with the dispute notified by Mr Stephenson.[7]

[5] We will shortly deal with the Minister's appeal, but before doing so we will detail some background relevant to the notice by Mr Stephenson under clause 65 of the 2001 Agreement.

[6] The Commission certified the 2001 Agreement on 29 October 2001.[8] The nominal expiry date of the 2001 Agreement was 28 October 2002.[9] Clause 2.1 of the 2001 Agreement says the parties bound by it are the Minister on behalf of the Commonwealth of Australia and employees employed under Parts III and IV of the Members of Parliament (Staff) Act 1984 (Cth), except for certain categories of employees. The excepted categories of employees are not relevant to this matter.

[7] Mr Stephenson commenced employment in the office of Senator Chris Evans in September 2002 as an Electorate Officer Band B classification. Before he commenced that employment, Senator Evans wrote to the Minister seeking his approval under clause 28.3(b) of the 2001 Agreement to have Mr Stephenson appointed to a salary point higher than the bottom point in the salary band.

[8] Clause 28.3 of the 2001 Agreement concerning "Salary Translation and Progression (including increments)" provides as follows:

"28.3 On appointment, the salary for Electorate Officers will be the minimum salary point in the band to which the appointment is made.

(a) The employing Member may engage new Electorate Officers at the Band A classification at any salary point between MOPS 2-1 and MOPS 3-2;

(b) The Minister may permit appointment at a higher salary point where the Minister is satisfied that the appointee has the competencies appropriate to the band and has particular experience and skills;

(c) An Electorate Employee may be advanced to the next salary point three months after appointment;

(d) An Electorate Employee who reaches the top of the salary range for the electorate officer position may, in certain circumstances, be moved to the next level."

[9] In November 2002, the Minister wrote to Senator Evans advising that he was unwilling to agree to his request for a higher commencement salary for Mr Stephenson.

[10] Subsequently clause 65 of the 2001 Agreement concerning dispute prevention and resolution was invoked in respect of the matter.

[11] Clause 65 of the 2001 Agreement ultimately empowers the Commission, consistent with s.170LW of the Workplace Relations Act 1996 (Cth) (the Act), to settle matters covered by the 2001 Agreement that are in dispute between the parties.

[12] Mr Stephenson's 7 August 2003 notice to the Commission under clause 65 of the 2001 Agreement stated the dispute related to "the Special Minister of State's unreasonable use of his discretion to appoint employees at a pay point above the minimum pay point under s.28.3(b) of the [2001] Certified Agreement, on the basis of their competencies, experience and skills."

[13] On 20 August 2003, the Commission certified the Members of Parliament Staff (Commonwealth) Certified Agreement 2003-2006 (the 2003 Agreement).[10] The nominal expiry date of the 2003 Agreement is 20 August 2006. Clause 2.1 of the 2003 Agreement says the parties bound by it are the Minister on behalf of the Commonwealth of Australia and persons employed under Parts III and IV of the Members of Parliament (Staff) Act 1984 (Cth) in classifications listed in Attachments A-C to the 2003 Agreement. Mr Stephenson is employed in a classification listed in Attachments A-C.

[14] Clause 6.3 of the 2003 Agreement provides that the 2003 Agreement applies to the complete exclusion of the 2001 Agreement, except for its provisions that continue to apply due to the operation of the 2003 Agreement. Clause 6.4 of the 2003 Agreement provides that the 2003 Agreement replaces the 2001 Agreement and clause 6.5 of the 2003 Agreement provides for an application to be made to terminate the 2001 Agreement in accordance with s.170MH of the Act following the certification of the 2003 Agreement.

[15] Clause 26 of the 2003 Agreement concerning "Salary Progression" provides as follows:

26.1 Subject to clause 26.2, on appointment/engagement, the salary for Electorate Employees will be the minimum salary point in the classification to which the appointment/engagement is made.

26.2 The employing Member may appoint/engage new Electorate Employees at the Electorate Officer A classification at any salary point between and including MOPS 2-1 and MOPS 3-2.

26.3 An ongoing Electorate Employee may be advanced to the next salary point three (3) months after appointment with the written approval of his/her employing Member.

26.4 An ongoing Electorate Employee who reaches the top of the salary range for an Electorate Officer classification may, after twelve (12) months and subject to competency assessment undertaken by the employing Member and in accordance with guidelines issued by the Department, be moved to the next classification.

26.5 Personal Employees will be appointed/engaged at a salary point within the classification to which the appointment/engagement is made.

26.6 An ongoing Electorate Employee who is promoted or transferred to a Personal Employee position may at the time be allocated to any salary point within the classification to which the promotion or transfer is made.

26.7 All ongoing Employees will be entitled to a salary increment after twelve (12) months of service at a particular salary point, subject to satisfactory performance."

[16] Clauses 63-66 of the 2003 Agreement concern dispute prevention and settlement and empower the Commission to settle disputes relating to the application of the 2003 Agreement, consistent with s.170LW of the Act.

[17] We now turn to deal with the ground of appeal advanced by the Minister.

[18] The Minister maintained the Commissioner erred in finding the Commission had jurisdiction to deal with a dispute about the results of the exercise of a discretion vested in the Minister by the 2001 Agreement. The Minister submitted the Commission lacked the requisite jurisdiction because, amongst other things, the nominal expiry date of the 2001 Agreement had passed and it had been replaced by the 2003 Agreement and because Mr Stephenson had no accrued right to have the dispute concerning the exercise of the Minister's discretion determined by the Commission.

[19] Of relevance to the Minister's ground of appeal is s.170LX of the Act. Section 170LX of the Act provides as follows:

"(1) A certified agreement comes into operation when it is certified and, subject to this section, remains in operation at all times afterwards.

(b) it is replaced by another certified agreement.

(a) ceases to be in operation if it is terminated under section 170LV, 170ME, 170MG, 170MH or 170MHA; and

(b) does not operate if subsection 170LY(2) applies.

The agreement may also be set aside under subsection 113(2A).

Note: Sections 170LV and 170ME deal with breaches of undertakings. Sections 170MG, 170MH and 170MHA deal with voluntary termination. Subsection 113(2A) deals with discriminatory agreements."

[20] In her decision, with respect to the aspects of the Minister's ground of appeal referred to above, the Commissioner said:

"Does the certification of the new Agreement remove any jurisdiction to deal with a dispute notified under the 2001 Agreement?

[54] This argument was put by the Minister's representative "in the alternative" should the Commission not accept the argument that the dispute was not over the application of the agreement.

[55] In my view the words "ceases to be in operation" in s170LX do not operate so as to remove all rights parties to an agreement may have under an agreement which has been terminated or replaced by another agreement. The words in question do no more than provide that an agreement does not continue to determine the rights and obligations of those parties covered by it when a new Agreement commences to govern the employment conditions. The superseded agreement continues to provide the rights and obligations of the parties to the Agreement in respect of that period for which it was in operation.

[56] If the legislature had intended that the termination of an agreement would have the effect of completely extinguishing all rights employees or employers may have had as a consequence of the agreement, in my view, a more explicit statement to this effect would be required. I do not accept the argument that the parties would need to provide for such situations in the terms of the new agreement. In my view such provisions would be necessary only if the legislation explicitly removed all rights and liabilities under terminated agreements. In such circumstances the parties would be aware that such a consequence flowed from the making of a new agreement and would be alerted to the need for savings provisions.

[57] I accept the arguments put by the applicant and the CPSU that to find otherwise would lead to absurd results and would enable an employer to deny an employee rights merely by delaying a settlement of a dispute until a new agreement was certified.

[58] If I am wrong about the continued effect of terminated or replaced agreements, it is my view that the Commission had the jurisdiction to deal with the dispute at the date of lodgement, and that the subsequent certification of the new Agreement did not remove the jurisdiction to deal with that dispute to finality. The applicant had, in effect, an accrued right to have his matter dealt with once the jurisdiction of the Commission was invoked.

[59] In this respect, I accept the applicant's argument that the reservations concerning accrued rights expressed by the High Court in Attorney General (Qld) v AIRC do not apply to this matter as it does not concern the making of awards and a quasi-legislative power to create rights and liabilities, but involves a power of private arbitration and the determination of existing rights. It is quasi-judicial function."[11]

[21] On appeal, the Minister submitted that on certification of the 2003 Agreement, the 2001 Agreement ceased to operate due to s.170LX(2) of the Act. As a result, the 2001 Agreement has no life. It no longer governs the rights of persons bound by it and the Commission is deprived of any power to settle matters in dispute under the provisions of the 2001 Agreement. While the 2001 Agreement continues to have effect for the purposes of s.178 of the Act, it has ceased operation and the Commission needs the continued operation of the 2001 Agreement to give it power to settle a dispute over the application of the 2001 Agreement.

[22] The Minister went on to say that the Commissioner's interpretation of the phrase "ceases to be in operation" in s.170LX of the Act does not give the phrase its ordinary and natural meaning in the context in which it appears.

[23] Moreover, the Minister said the Commissioner's interpretation of the phrase is not necessary to protect employee rights. A replacement certified agreement can have transitional provisions relating to the survival of rights under a previous certified agreement. However, the 2003 Agreement does not have such transitional provisions.

[24] Indeed, the Minister emphasised, the 2003 Agreement says that it replaces the 2001 Agreement and its procedures for preventing and settling disputes only empower the Commission to settle a dispute to the extent it relates to the application of the 2003 Agreement. Further, the parties to the 2001 Agreement and the 2003 Agreement expressly agreed that both the 2001 Agreement and the 2003 Agreement operate as "closed agreements". Clause 4 of both the 2001 Agreement and the 2003 Agreement provide:

"This Agreement constitutes a closed agreement in the settlement of all matters for its duration. The parties undertake for the life of this Agreement that there will be no further claims that would increase labour costs, except where consistent with the terms of this Agreement."

[25] Accordingly, the Minister maintained there is no basis on which to infer the procedures for preventing and settling disputes in the 2001 Agreement continued in operation following its replacement by the 2003 Agreement.

[26] With respect to the Commissioner's reliance on Mr Stephenson having an accrued right, the Minister pointed out that in Re Joy Manufacturing Co Pty Ltd[12] the Commission suggested the termination of a certified agreement can have the effect of divesting parties of their accrued rights under the certified agreement.[13] Further, in Re Timber Industry - Brown and Dureau Building Materials Pty Ltd - Morwell/CFMEU - Award 1996[14] the Commission suggested that in relation to awards, specific orders are necessary to preserve accrued rights if the award is set aside.[15]

[27] In addition, the Minister maintained Mr Stephenson was seeking the creation of a right to be commenced at a pay point higher than the minimum. In Attorney-General (Q) v Australian Industrial Relations Commission and others,[16] the High Court held that doctrines of accrued rights had no application where a matter concerned the creation of rights.

[28] Moreover, the Minister said, it is not obviously appropriate that the concept of an accrued right may be transposed from cases about the effect of statute repeal to a case about the effect of the cessation of an agreement between parties, even though the agreement has acquired statutory force from its certification by the Commission. Rights under an agreement depend on the agreement's express or implied terms and there is no evidence of a term in the 2001 Agreement to the effect that a proceeding under its procedures for preventing and settling disputes may be completed notwithstanding the 2001 Agreement's cessation.

Mr Stephenson's and CPSU, the Community and Public Sector Union's Submissions

[29] In response to the appeal submissions of the Minister, and in opposition to the granting of leave to appeal and in support of the dismissal of the appeal, Mr Stephenson and the CPSU, the Community and Public Sector Union (the CPSU) submitted the Commissioner's finding that the phrase "ceases to be in operation" in s.170LX of the Act does "no more than provide that an agreement does not continue to determine the rights and obligations of those parties covered by it" is not a finding that the 2001 Agreement continues to be in operation but simply a finding that permits rights bestowed by the 2001 Agreement to be pursued.

[30] Mr Stephenson and the CPSU said the term "ceases to operate" does not encompass an extinguishment of rights where the jurisdiction of the Commission has been properly invoked prior to the cessation of the operation of a certified agreement, as occurred in this case. On that basis, the decision of the Commission in Coochey v Department of Defence[17] can be distinguished. To allow the Commission's jurisdiction to be subject to some other act, such as the certification of a replacement agreement, would introduce significant uncertainty as to the rights of the parties to a certified agreement that remains in force. It would also lead to absurd results, such as the prolonging by a party of each step in the procedures for preventing and settling disputes so as to have the dispute over the application of the agreement overtaken by the certification of a new agreement. The Minister's submissions require the inferring of words into a new agreement to the effect that no commenced proceeding survives the certification of the new agreement.

[31] Mr Stephenson and the CPSU maintained that obligations which arose during the course of the 2001 Agreement and rights which became crystallised continue, notwithstanding any termination or cessation of the operation of the 2001 Agreement. The 2003 Agreement has no effect on an antecedent event and can only operate prospectively in the absence of express terms to the contrary. There are no such express terms to the contrary in the 2003 Agreement. There is no agreement between the parties that the private arbitration clause in the 2001 Agreement will not operate after the termination or cessation of operation of the 2001 Agreement.

[32] Mr Stephenson and the CPSU pointed out that an agreement can continue to have effect even if it has ceased to be in operation. A person bound by the terms of an agreement which has ceased to be in operation pursuant to s.170LX of the Act can nonetheless rely on the terms of the agreement in proceedings such as those under s.178 of the Act.

[33] Moreover, they maintained, if rights can survive, equity and good conscience dictate that they should survive. So, where proceedings have been commenced, the Commission should assign meaning to sections in the Act in a way that maintains the right and proceeding, unless the particular words and context are incapable of sustaining that outcome. Section 170LX of the Act is not such a section. Other circumstances assisting the Commission to reach such a conclusion are that the Act is to be construed beneficially and there is a presumption against retrospectivity when interpreting a statute, whereby only where there are clear words will a provision be interpreted to change rights and obligations prior to the commencement of the provision.

[34] They said it is a long held tenet that where rights are affected there is a presumption against an interpretation of a statute that denies the rights unless the language of the statute is reasonably capable of no other construction[18] and where two meanings to a statute are open it is proper to adopt the meaning that avoids consequences that appear irrational and unjust.[19]

[35] In regard to the Commissioner's reliance on the doctrine of accrued rights, Mr Stephenson and the CPSU submitted that at the time the 2003 Agreement was made the Commission had been vested with power to settle the matters in dispute, so Mr Stephenson's rights had accrued to him and were protected from any change striking down the legal basis for his claim.

[36] As in Esber v The Commonwealth and another,[20] Mr Stephenson and the CPSU said, there is nothing in the 2003 Agreement standing in the way of giving effect to the terms of the 2001 Agreement. The accrued right in this case is akin to that in Esber's case in that what the Commission is being asked to do is determine, in effect by a review, Mr Stephenson's rights, pursuant to the terms of the 2001 Agreement, under the 2001 Agreement. The circumstances differ from those in Attorney-General (Q) v Australian Industrial Relations Commission and others. There has been no repeal in that there has been no narrowing of the circumstances or limiting of the effect or exclusion of the application of the 2001 Agreement to particular circumstances. Further, there is no repeal within the meaning of s.8A of the Acts Interpretation Act 1901 (Cth) (the Interpretation Act). The terms of the 2001 Agreement continue to have effect notwithstanding the 2001 Agreement ceasing to operate and Mr Stephenson has an accrued right within the meaning of s.8 of the Interpretation Act to have a dispute as to the application of the 2001 Agreement determined by the Commission.

[37] In addition, they said, Mr Stephenson is not seeking the creation of a right but the recognition that from the commencement of his employment he was more appropriately placed at a higher classification level. Such a determination is more akin to a declaration or opinion of an existing entitlement. The exercise of such a "private arbitration" power has effect, not because the Commission is inappropriately exercising a type of judicial power, but because the parties had agreed to submit their disputes for settlement by the Commission and to accept such decisions as binding on them. The Commission in such circumstances is not exercising the "quasi-legislative" power considered in Attorney-General (Q) v Australian Industrial Relations Commission and others. Rather, the Commission's jurisdiction is one of private arbitration involving the vindication of existing rights. This is a quasi-judicial power in the sense discussed in Attorney-General (Q) v Australian Industrial Relations Commission and others.

[38] Finally, Mr Stephenson and the CPSU maintained the 2001 Agreement has an existence and operation independent of certification. To the extent the 2003 Agreement might operate to the exclusion of the 2001 Agreement, that does not equate to an intention to terminate the 2001 Agreement.

[39] The grounds of appeal advanced by the Minister raise issues going to the Commission's jurisdiction and powers in respect of procedures for preventing and settling disputes in a certified agreement, when the certified agreement has ceased to operate because of the provisions of s.170LX of the Act. Given those issues, in our opinion the matter is of such importance that in the public interest leave to appeal should be granted. Accordingly, we grant leave to appeal.

[40] The Commission's jurisdiction and powers in respect of procedures for preventing and settling disputes in a certified agreement were considered by Vice President Lawler in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Telstra Corporation.[21] His Honour said:

"[32] As the High Court in the Private Arbitration Case [Construction, Forestry, Mining and Energy Union v The Australian Industrial Relations Commission[2001] HCA 16; , (2000) 203 CLR 645] has reminded us, s.89(b) of the Act is a source of jurisdiction and authorises the Commission to discharge `such... functions as are conferred on the Commission by this or any other Act.' One of the functions conferred on the Commission by the Act is the consideration, in connection with an application for the certification of an agreement made under Part VIB of the Act, of whether or not to approve (pursuant to the power in s.170LW or one of its predecessors) the dispute settlement procedures in the agreement empowering the Commission to `settle disputes over the application of the agreement'.

[33] It follows that the source of the Commission's jurisdiction when it deals with a dispute notified under a dispute settlement procedure in a certified agreement approved under s.170LW or one of its predecessors is:

(i) Section 89(b) of the Act in combination with an approval pursuant to s.170LW (or its relevant predecessor)

`in conjunction with' [Private Arbitration Case at [32]]

(ii) the agreement of the parties that empowers the Commission to settle disputes.

[34] Each of these sources give rise to limitations on the Commission's jurisdiction to exercise powers when dealing with a dispute notified under a dispute settlement procedure in a certified agreement approved under s.170LW or one of its predecessors. Respectively, those limitations are:

(i) the limitation in s.170LW that the Commission can only approve dispute settlement procedures in a certified agreement empowering the Commission to settle `disputes over the application of the agreement'; and

(ii) any express or implied limitation arising from the terms of the agreement of the parties.

Other constraints on the Commission's jurisdiction to exercise power may arise from other provisions of the Act that apply according to their terms ...

[35] Following the Private Arbitration Case it is now well settled that the power exercised by the Commission when it arbitrates a dispute notified under a dispute settling procedure in a certified agreement (previously approved under s.170LW or one of its predecessors) is a power of private arbitration [Private Arbitration Case at [32]] conferred on the Commission by the agreement of the parties in circumstances where s.89(b) of the Act `authorises the Commission to exercise those functions that it derives from [s.170LW and its predecessors]' [Private Arbitration Case at [6]]."

[41] With respect, we concur with the views of his Honour as set out above.

[42] Further, we think s.170LX of the Act is another constraint or limitation on the Commission's jurisdiction to exercise the private arbitration power arising from the procedures in a certified agreement for preventing and settling disputes.

[43] We have come to that view for the following reasons.

[44] Section 170LW of the Act, which Vice President Lawler refers to as a source of the Commission's jurisdiction to exercise the private arbitration powers in a certified agreement, is as follows:

"Procedures in a certified agreement for preventing and settling disputes between the employer and employees whose employment will be subject to the agreement may, if the Commission so approves, empower the Commission to do either or both of the following:

(a) to settle disputes over the application of the agreement;

(b) to appoint a board of reference as described in section 131 for the purpose of settling such disputes." (Underlining added)

[45] The wording of section s.170LW of the Act makes it clear that the Commission's jurisdiction to exercise the private arbitration power given to it by the disputes prevention and settlement procedure in an agreement is dependent on the agreement being a certified agreement.

[46] An agreement which authorises the Commission to exercise such a power of private arbitration cannot operate with that effect unless it is a certified agreement.

[47] As the High Court pointed out in Construction, Forestry, Mining and Energy Union v The Australian Industrial Relations Commission (the Private Arbitration Case):[22]

"To the extent that s.170MH of the IR Act operates in conjunction with an agreed dispute resolution procedure to authorise the Commission to make decisions as to the legal rights and liabilities of the parties to the Agreement, it merely authorises the Commission to exercise a power of private arbitration. And procedures for the resolution of disputes over the application of an agreement made by parties to an industrial situation to prevent that situation from developing into an industrial dispute are clearly procedures for maintaining that agreement. Parliament may legislate to authorise the Commission to participate in procedures of that kind. Accordingly, s.170MH of the IR Act is valid.

Although it is by no means clear, it may be assumed, for present purposes, that cll 21 and 22 are designed to ensure more than the maintenance of the Agreement. That, however, does not have the consequence that those clauses are wholly invalid. Nor does it follow that they are wholly invalid because they extend beyond what is authorises by s.170MH of the IR Act.

The parties to an industrial situation are free to agree between themselves as to the terms on which they will conduct their affairs. Their agreement has effect according to the general law. If their agreement is certified, it also has effect as an award. To the extent that an agreement provides in a manner that exceeds what is permitted either by the Constitution or by the legislation which gives the agreement effect as an award, it cannot operate with that effect. But the underlying agreement remains and the validity of that agreement depends on the general law, not the legislative provisions which give it effect as an award."[23] (Underlining added)

[48] Section 170MH of the Industrial Relations Act 1988 (Cth) (the IR Act) was, so far as is relevant, in similar terms to s.170LW of the Act and clauses 21 and 22 of the Gordonstone Mine UMW Enterprise Agreement 1995[24] (the Gordonstone Agreement) were procedures for the resolution of safety and industrial issues, with clause 22 providing for the parties to the Gordonstone Agreement agreeing to abide by any decision determined by the Commission relating to a dispute at Gordonstone Mine.

[49] A corollary of our conclusions about the effect of ss.170LW and LX of the Act is that if a certified agreement empowering the Commission to settle disputes over the application of the agreement ceases to operate because of the provisions of s.170LX of the Act, then the Commission no longer has jurisdiction to exercise that private arbitration power in the agreement.

[50] From 20 August 2003, therefore, when the 2001 Agreement ceased to operate because its nominal expiry date of 28 October 2002 had passed and it was replaced by the 2003 Agreement, the Commission no longer had jurisdiction to exercise the private arbitration power in clause 65 of the 2001 Agreement.

[51] It is clear the 2003 Agreement replaced the 2001 Agreement given the 2003 Agreement was certified on 20 August 2003 and given the terms of the 2003 Agreement, including:

• clause 6.3 - which provides that the 2003 Agreement applies to the complete exclusion of the 2001 Agreement; and
• clause 6.4 - which provides that the 2003 Agreement replaces the 2001 Agreement.

[52] We also consider the Commission's power to privately arbitrate the dispute notified by Mr Stephenson to the Commission on 7 August 2003 ceased with the 2003 Agreement having regard to the terms of the 2003 Agreement, including its clauses 6.3 and 6.4 and clauses 63-66 which only empower the Commission to settle disputes over the application of the 2003 Agreement.

[53] Further, in our view, the fact that the 2003 Agreement does not contain a provision consistent with clause 28.3(b) of the 2001 Agreement also tells against the Commission having the power of private arbitration in respect of the dispute notified by Mr Stephenson on 7 August 2003.

[54] Finally, we do not accept Mr Stephenson has an accrued right to have his dispute over the application of the 2001 Agreement dealt with by the Commission. We have come to this view having regard to the fact the 2001 Agreement ceased to operate on 20 August 2003 in accordance with the provisions of s.170LX of the Act and also having regard to the abovementioned provisions of the 2003 Agreement and the absence from the 2003 Agreement of a clause consistent with clause 28.3(b) of the 2001 Agreement. In our view, these factors displaced any prima facie preservation of such a right.[25]

[55] It is apparent from our reasoning that we consider the Commissioner erred in concluding that after 20 August 2003 the Commission still had jurisdiction to deal with Mr Stephenson's notice of 7 August 2003 under clause 65 of the 2001 Agreement.

[56] Given our conclusion that the Commission had no jurisdiction or power to deal with Mr Stephenson's notice under clause 65 of the 2001 Agreement after 20 August 2003, we do not need to deal with the other bases on which the Minister maintained the Commission lacked jurisdiction in respect of Mr Stephenson's notice under clause 65 of the 2001 Agreement.

[57] In the circumstances, we uphold the appeal and quash the decision of Commissioner Deegan dated 16 April 2004.[26]

Mr R. Crowe of counsel, with Mr D. O'Donovan, for Senator the Honourable Eric Abetz (Special Minister of State).

Ms M. Cooper for Mr Stephenson and the CPSU, the Community and Public Sector Union.

1 Mathew Stephenson v Senator the Honourable Eric Abetz (Special Minister of State), PR945876,

2 AG811509 [PR910712], 29 October 2001 per Deegan C.

3 Mathew Stephenson v Senator the Honourable Eric Abetz (Special Minister of State), PR945876,

5 AG827272 [PR936557], 20 August 2003 per Deegan C.

6 Mathew Stephenson v Senator the Honourable Eric Abetz (Special Minister of State), PR945876,

8 AG811509 [PR910712], 29 October 2001 per Deegan C.

10 AG827272 [PR936557], 20 August 2003 per Deegan C.

11 Mathew Stephenson v Senator the Honourable Eric Abetz (Special Minister of State), PR945876,

14 AW799050 [PR901818], 5 March 2001 per Munro J.

16 (2002) 213 CLR 485.

18 Sargood Bros v Commonwealth [1910] HCA 45; (1910) 11 CLR 258 at 279.

19 _Qantas Flight Catering Limited v Australian Municipal, Administrative, Clerical and Services Union -

New South Wales and ACT (Services) Branch_, PR939695, 22 October 2003 per Ross VP,

20 [1992] HCA 20; (1992) 174 CLR 430.

22 [2001] HCA 16; (2001) 203 CLR 645.

24 G0551 [Doc N5884], 21 October 1996 per Hodder C.

25 Attorney-General (Q) v Australian Industrial Relations Commission and others, (2002) 213 CLR 485

26 Mathew Stephenson v Senator the Honourable Eric Abetz (Special Minister of State), PR945876,

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