C2001/5866, Transcript of Proceedings [2002] AIRCTrans 1658 (15 May 2002)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N VT03740
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER EAMES

C2001/5866

AUSTRALIAN MUNICIPAL,
ADMINISTRATIVE, CLERICAL
AND SERVICES UNION

and

AUSTAR ENTERTAINMENT
PTY LIMITED and OTHERS

Notification pursuant to section 99 of the Act
of a dispute re conditions of employment

MELBOURNE

10.00 AM, WEDNESDAY, 1 MAY 2002

Continued from 9.4.02

PN937

MR D. MURPHY: I seek leave to appear for Austar Entertainment Pty Limited.

PN938

MR A. WATSON: I appear on behalf of the ACTU and with me is MS B. TKALCEVIC.

PN939

MS C. GORDON: I seek leave to appear on behalf of Customer Services Pty Limited and Foxtel Management Pty Limited.

PN940

THE COMMISSIONER: Thank you. Leave is granted in all cases. The - - -

PN941

MR J. NUCIFORA: Sorry, Commissioner, I am one of the few constants, I think, with MS R. NEWMAN on this matter. I just wanted to explain that I have another matter that was meant to commence now but there has been a hold-up. It will probably be at least half an hour and I will probably, if I may be excused for around half an hour to an hour in the course of the proceedings.

PN942

THE COMMISSIONER: We might not be here that long, Mr Nucifora. You have got to be optimistic.

PN943

MR NUCIFORA: I am sorry, Commissioner, I am being a bit presumptuous but I thought it might have originally taken a couple of hours back on 3 December 2001. If the Commission please.

PN944

THE COMMISSIONER: That is all right. Yes, Mr Watson.

PN945

MR WATSON: If the Commission pleases, the Commission will be aware that it issued a summons on 11 April 2001 directed to Greg Combet as the proper officer of the ACTU. We made application for that summons to be set aside and I want to, if I can this morning, develop the argument as to why the summons should be set aside. Can I hand up an outline of submissions with some case material and other material already in the proceedings.

PN946

THE COMMISSIONER: Thank you.

PN947

MR WATSON: I have got a copy, one copy each for the other parties. I am sorry I didn't realise there were going to be quite so - I don't know whether it is the Commission's practice to mark - - -

PN948

THE COMMISSIONER: I was going to, yes.

PN949

MR WATSON: Yes.

EXHIBIT #ACTU1 ACTU OUTLINE OF SUBMISSIONS

PN950

MR WATSON: The Commission will see in paragraph 2 we have set out the grounds on which we seek the setting aside of this summons. There are essentially three. The first is that the documentation sought is not relevant and we develop that argument by reference to the contentions which have been filed by Austar in these proceedings. The second is that the summons is too wide and oppressive and the third is that the summons seeks the production of material which go to the internal deliberations of the ACTU. Now in our submission, before I turn to the specifics of each of those grounds, in our submission the Commission has before it, in the conduct of the employers in these proceedings, the relatively text book example of delay and obfuscation.

PN951

They have, when one looks at their contentions which are in tab 2 and when I say the contentions, the contentions of Austar, they have clutched at every one of the traditional straws for employers in these matters. They have said no authorisation, no eligibility, no dispute, no interstate dispute, no genuineness. These are the traditional hallmarks of employers seeking to avoid dispute findings. It is not just that they have raised these things because, of course, they are entitled to raise them but it is the manner in which they have raised them. As we go through the contentions the Commission will see that there is little in the way of factual assertion and that is because, in our submission, they don't really have a factual basis for much of their case and hence the need for a fishing expedition which is what, we say, the summons in the instant proceeding is.

PN952

This is a case of a summons being used to establish whether there is a case rather than genuine issues having been raised and the summons being used to shed light on them. Secondly, what factual assertions there are in the contentions seem prima facie at any rate to be wrong in many instances. Thirdly, many of the conclusions of law stated simply do not follow from the facts as asserted in the contentions. Fourthly, some of the conclusions of law are simply wrong. The summons in this context is fishing, but the Commission should understand that in issuing its summons directed to the ACTU in the breadth that it has Austar is not merely dangling its line in the water waiting for a bite but it is actually actively trawling for red herrings.

PN953

An example of this, if I can take the Commission to it, is paragraph 426 of the transcript where you get a sense of just how much of a fishing exercise this is. At 426 Mr Lawrence, who appeared on that day for Austar, and that is the transcript of 19 March, says:

PN954

Now a lot of that material concerned the agency arrangement as you know and that was put as an important matter because it related to the genuineness aspect of the argument that had been foreshadowed ...(reads)... what should be put in the outline of argument -

PN955

etcetera, etcetera. In other words, look, we don't really know what there is in this case and we are just going to have a bit of a fish around and see if we can come up with something. That is the very tenor, we say, of the employer conduct in these proceedings. In short we invite the Commission to draw the conclusion that employer conduct in these proceedings generally, but particularly in relation to the Austar summons to the ACTU, is not about raising real and genuine issues but rather about, as we have said, delay and obfuscation.

PN956

In terms of our arguments about delay it might be said, well, why don't you just comply and get things over and done with and at least initially that was a relatively attractive proposition to us but there are two main reasons for not doing that. One is practical and one is a matter of principle. The practical matter first. Based on what has happened previously if we produce documents which we say on any view are irrelevant there will be an application as we understand it to cross-examine, there will be argument about whether we have produced all the right materials, there will be requests for additional materials, because some materials raise matters relevant to other unions we might expect that there will be applications for summonses to other unions and on and on and on the fishing expedition goes.

PN957

The point of principle is this, the material sought is, we say, not relevant and it goes beyond the parties in these proceedings. It deals as we will come to with the affairs of other unions, it deals with matters of internal sensitivity to the ACTU and in the circumstances we thing there is both, as we say, the matter of practice that this summons on past form won't be the end of the matter and the matter of principle that we should not be compelled to reveal matters which are relevant to other parties in these proceedings. So in essence it is to prevent further delay and further fishing and to ensure the rights of the ACTU and other unions are not infringed in this process in a trawl for red herrings that we seek that the summons be set aside.

PN958

The Commission has already been taken at some length to the principles relating to the issuing and setting aside of a summons in the Commission. I do just want to refer to the case of Federated Clerks Union of Australia v Alcoa. I know the Commission has been taken to it previously, I don't intend to take a great deal of time. It is at print H2892. It is at tag 3 of the folder which we have handed up and I want to take the Commission particularly to some passages at pages 2 and 4 of that decision. On page 2, if the Commission pleases, there is a paragraph commencing:

PN959

In its exercise of a broad discretion and judgment -

PN960

I want to commence about half-way through that paragraph, the sentence -

PN961

The documents sought must be of a nature capable of being relevant to an issue which might legitimately arise on the hearing of the matters in dispute.

PN962

And that is, in essence, our first ground. We say the documents in this instance are not relevant. Then further down:

PN963

A party will not be required to produce documents where to do so would be oppressive or where the demand for production is a fishing expedition in the sense that it is an endeavour not to obtain evidence to support a case but to discover whether there is a case at all.

PN964

And that is, in a sense, our second ground and then over on page 4 his Honour refers to a principle in relation to internal deliberations:

PN965

The exercise of such a discretion in this case depends upon a finer balance than may often be the case. There are many instances in Australian practice recognising that participants in industrial relations will be sheltered from compulsory production of information categorised as internal to their deliberations in industrial relations matters.

PN966

And there is a reference to some cases there and then his Honour goes on in the next paragraph:

PN967

Against the application of the practice of sheltering the company's internal industrial relations deliberations in this instance must be balanced the consideration that production is sought to be compelled of what may be evidence relevant to important issues of fact.

PN968

And then in the subsequent paragraph his Honour weighs that balance and determines not to issue the summons and he does so on this basis. He says:

PN969

Resolution of the issues of fact as to the company's attitude towards the FSU and toward the maintenance of award coverage is not essential to the determination of the matters in dispute.

PN970

So it is clear in relation to our third ground that the Commission has a discretion that it is a balancing exercise between, if you like, the centrality of the material to the case which is advanced and the principle that parties in industrial matters are permitted to keep their internal deliberations to themselves. In paragraph 6 if I could return you to the outline if the Commission pleases, in paragraph 6 we set out in summary form the five bases on which Austar asserts that there is not an industrial dispute within the meaning of the Act and I have run through those already but they are essentially the grab-bag, their authorisation, eligibility, lack of an industrial dispute, lack of a dispute extending beyond the limits of one state and a lack of genuineness.

PN971

I want to turn to the contentions and take each of them in turn as a means of demonstrating that the material sought is not relevant. If I can go to the contentions which are at tag 2 and if I could just take the Commission at this stage to lack of authorisation:

PN972

The contention in relation to lack of authorisation is this that in order for the log of claims to give rise it must be authorised.

PN973

We have no quibble with that as an appropriate summary of the law and we, in fact, accept it in our outline. Then they say, well:

PN974

The ASU has at this stage provided no evidence that the log was so authorised and there is apparently a proposal to call Mr Slape to give evidence however Austar cannot address this issue in the absence of evidence.

PN975

Well, Mr Slape has been called now and he has given evidence and he says that he authorised the document. Now he has not been cross-examined but he says he authorised the service of the log and the rules are in evidence. Now on this issue the National Secretary of the union has either authorised the service of the log or he hasn't. That is a matter of fact on which the documents in relation to which the summons has been issued can have no bearing. He either authorised it or he didn't. Now that authorisation was either in accordance with the union's rules or it was not and again the documents in the summons can have no bearing on that issue.

PN976

It was either in accordance with the rules or it was not. You look at the rules, you construe the rules in the light of relevant authority and you determine whether that authorisation was appropriate. Now what has been requested therefore from the ACTU can simply have no bearing on that issue. The next issue they advance is one which goes to the eligibility rule of the ASU. Now again if I can take the Commission back to the contentions they say the union is only entitled to make demands in respect of persons who are or are eligible, nothing wrong with that as a summary of the law. They then refer to the decision of SDP Polites in Australis Media Limited determining that pay television was a new industry and then purporting to characterise the outcome of that decision. Then they say this, paragraph 9:

PN977

The ASUs rules do not, on their face, extend to the new industry of pay television.

PN978

Well, with respect to those who drafted the contentions, and we say this in paragraph 12 of our outline, that is an entirely specious argument. The ASUs eligibility rule is both an employer industry and an employee occupation rule. To succeed in this aspect of its contentions Austar would have to show that no employee employed by Austar is engaged in an occupation for which the ASU has coverage. It has got to go that far. In this regard the decision in Australis Media Limited is a red herring. The order resulting from that decision, which is print M4153, shows that the relevant order was not binding in any way on the ASU so there is no suggestion that as a result of 118A proceedings the ASUs rules have been cut back.

PN979

In any event, and this is the crux of the matter in terms of the summons, in any event none of the documents sought by the summons can be relevant to this issue. The Commission will be required to construe the eligibility rule of the ASU in light of the evidence regarding the work performed at Austar Pty Limited. Nothing in the documents sought by Austar in the summons will assist the resolution of these issues. You have got the rules in evidence. There will be some material about the work performed and the industry in which the work is performed. Those are the matters which will be relevant to the determination of that issue.

PN980

Discussions which were held at the ACTU or documents relating to an organising campaign, they are not relevant. They don't assist the Commission at all in the determination of that issue and in fact if the Commission took those into account there might be all sorts of issues about whether or not it had improperly gone to evidence beyond its proper function. The next matter that is raised in the contentions is the question of whether or not there is in existence an industrial dispute and again if I can take the Commission to the contentions in paragraph 10 they get the law wrong in our submission. They say:

PN981

A union is only entitled to make claims in respect of demands made for or on behalf of its members or for conditions necessary to protect conditions enjoyed by its members.

PN982

Now that is wrong, in our submission, that is not the law and I will come to the cases which establish that that is not the law. But then they go on in 11 and 12:

PN983

The ASU has adduced no evidence that it has any members engaged in the service of Austar.

PN984

Well, as I apprehend it there is now evidence. We have of course not seen what the employer tends to do in relation to that evidence but in any event it would seem at least prima facie that that factual contention is wrong and then in 12 they say:

PN985

In that Austar has its own award and that award follows like provision to other awards covering pay television operators there can be no undermining of conditions enjoyed by members of the ASU.

PN986

Well, whether or not that is the case we say it is of no consequence. The fact is that the proposition of law which has been advanced goes to, in 10 is not an appropriate proposition and not an appropriate summary of the authorities. Can I demonstrate that and then turn to the issue of relevance in any event. Can I take the Commission to the most recent - well, it is perhaps not the most recent but one of the more recent authorities dealing with the capacity of unions to make demands and the capacity of the Commission to make awards binding in respect of non-union members. It is re Finance Sector Union of Australia ex parte Financial Clinic Victoria Pty Limited and it is at tab 4 of our outline.

PN987

This is a useful case because to an extent it shows the High Court retreating a little bit from where perhaps it had been thought existing and established doctrine took these matters but what is clear, abundantly clear in the passages we will come to is that the retreat is nowhere near as far as Austar would have you believe in paragraph 10. At page 360 in the judgment of the majority, that is Mason CJ, Deane, Toohey and Gaudron JJ, at the top of that page in the first sentence:

PN988

It was held in Metal Trades -

PN989

and Metal Trades is really the foundation case in this area -

PN990

Metal Trades Employers Association and Amalgamated Engineering Union that the wages and conditions on which employees who are not members ...(reads)... prevent employers employing anyone on less favourable terms.

PN991

Now the proposition in paragraph 10 of the contentions says:

PN992

They have got to make a demand either for their own members or for the protection of existing conditions of their own members.

PN993

Well, it is clear that the doctrine of the High Court extends not merely to protection of existing conditions but also the establishment of conditions and an insurance, if you like, that non-union members will not be on any lesser conditions than those established. Then in the context of that case they go on to say a bit further down the page - well, they indicate in the next paragraph that it is common for demands to be made and then they say:

PN994

It is of some significance that in recent times the matters involved in industrial disputes have tended in practice to take on a broader aspect -

PN995

and they go to the Manufacturing Grocers case, a case with which I am sure the Commission will be aware, familiar, and the Shell case and essentially this is part of the judgment which sets up a little bit of a distinction between the question of identity of superannuation fund and other matters but for the purposes of this proceeding the really gutsy, if I can say so without being pejorative, paragraph starts at 361 -

PN996

The decision in the Metal Trades case was confined to claims by a union involving the terms and conditions on which non-members were to be employed. If a proposed ...(reads)... whether or not members of the union are concerned.

PN997

And then they say:

PN998

But different considerations arise if the proposed award is to deal with a matter that extends beyond wages and conditions as they affect individual employees.

PN999

Now this is a log about wages and conditions essentially. At 364 of that case they, in their sort of conclusion about the instant question in that proceeding, they say, at about point 2:

PN1000

A trade union certainly has an industrial interest in ensuring that non-members receive the same level of employment benefits as employees who are its members.

[10.23am]

PN1001

And they indicate that:

PN1002

Thus if members are to receive the benefit of superannuation contributions it has an industrial interest in ensuring that non-members also receive superannuation contributions in the same amount or at the same level and a claim to that effect is one that may give rise to an industrial dispute.

PN1003

So to go back, if you like, to where we were when one looks at paragraph 10 in our submission it misstates the law. When one looks at the facts asserted in paragraph 11 and 12, even if true they would not provide the foundation for a conclusion that there was no industrial dispute but finally of course in relation to this matter the fact is that the documents sought can have no bearing on the determination of the issues raised in paragraph 11 and 12. The existence or otherwise of members of the ASU is a matter which can be and has been the subject of direct evidence. Any documents which we provide would only be of the most indirect evidence as to that fact.

PN1004

The award regulation of Austar employees which is the subject of paragraph 12 is a matter of law in relation to which no document held by the ACTU on the categories contained in the summons can cast any light and they just don't even get to first base on those issues. Now the next issue which is advanced is interstateness and in our submission in paragraph 13 and 14 of its contentions Austar seeks in effect to re-write about 94 years of Australian Law since Jumbunna Coal. What they attempt in effect to do is say, well, we haven't been affected outside of our Queensland operations therefore there is no interstate dispute.

PN1005

Well, that does not avail them at all with the greatest of respect. It is the service of the log that creates a dispute which extends beyond the limits of one state. The service and the non-accession to the demands therein. If they want to show that there is no interstate dispute they have got to do much more than they do in paragraph 13. The facts in paragraph 13, even if made out, do not support the conclusion of law in paragraph 14. Can I take the Commission to re AMIEU ex parte Aberdeen Beef at [1993] HCA 17; (1993) 176 CLR 154. That is at tag 5 and I want to take the Commission to some passages in the judgment of Mason CJ and Brennan, Deane, Dawson, Toohey and Gaudron JJ at 158, 159 and 160.

PN1006

At 158 the High Court, in about the middle of the page, summarise the employer argument in that case on interstateness:

PN1007

The employer's argument is that each of the 19 classifications describes or categorises activities which differ significantly from the activities ...(reads)... rather than the single interstate dispute found by the Commission.

PN1008

So that is essentially - different facts of course but that is essentially the sort of proposition which we apprehend Austar is contending. We have only dealt with things in Queensland and whatever is happening at Foxtel, well, that is a different matter entirely. Well, the High Court reject absolutely that notion and at 159 they say:

PN1009

However recognising that the expression 'industrial dispute' in the Constitution is used in its popular and not in any narrow sense does not prevent ...(reads)... on behalf of a number of employees to a number of employers.

PN1010

And they then talk about the statutory definition and they go on:

PN1011

Nevertheless it remains possible to identify specific industries and in most cases it is still true to say, as Isaacs J did in Jumbunna Coal -

PN1012

as case of great vintage -

PN1013

and R and Commonwealth Court of Conciliation and Arbitration ex parte Jones, that the nexus of an industrial dispute is the industry itself.

PN1014

Now at 160 they go over and they say:

PN1015

It is not -

PN1016

this is the paragraph commencing after the quote -

PN1017

It is not of great significance that there was no exact coincidence between the activities carried on in the respective states in respect of which demands were ...(reads)... were made had a community of interest.

PN1018

Now we just, in this regard, remind the Commission that the contention which Austar advances is one which says we have only had involvement with ASU Queensland, it has only concerned itself with the conditions of employees, etcetera, etcetera, and then they say:

PN1019

Such a dispute has no interstate character.

PN1020

The conclusion of law is not supported by the facts asserted even if true and on that basis those matters should simply not form any basis for the issuing of documents. In any event it is hard to see how any of the documents which are sought in the summons could cast any light on those issues. Finally we get to genuineness. Can I take the Commission once again to the contentions. The contentions in this regard run to a few paragraph, some seven, I think, and paragraphs 15 and 16 are assertions of fact. We might say that as we read the evidence so far it is not clear that they are in fact accurate assertions.

PN1021

It is not clear that in fact there has been any assumption of members by the ASU from the MEAA nor that there has been any trade in members but whether or not there has is a matter which ultimately the Commission will have to decide upon of course but then they go on in 17 and 18 and 19 etcetera to say, well, the log of claims is brought only with a view to attracting the Commission's jurisdiction to make an award to apparently legitimise the arrangement and they go on and, in effect, re-state that proposition three or four times.

PN1022

In essence the proposition which is advanced is that the only basis for which the log of claims has been served is to attract the jurisdiction of the Commission. Now whether or not there has been a trade in members is, in a sense, irrelevant. The fundamental proposition - that is the factual basis on which they go on to assert things but the fundamental proposition which they have to establish and which the authorities make clear is that the only intention of the ASU in serving the log, the only intention, was to attract the jurisdiction of the Commission.

PN1023

It is not enough for them to say, well, that was one of their goals because the authorities make quite clear that what they have to establish is that the only intention of the ASU was to attract the jurisdiction of the Commission and in that regard can I take the Commission to R v Ludeke ex parte Queensland Electricity Commission. I have cited Cohen's case but I won't take the Commission to it. R v Ludeke [1985] HCA 55; (1985) 159 CLR 178 and can I take the Commission to 181 and 2. At the foot of 181 they say:

PN1024

So if the only purpose of serving a log of claims is to take a step in enabling the Commission to settle an intrastate dispute, non-acceptance of the log of claims does not generate a real and genuine interstate industrial dispute -

PN1025

and they cite Caledonian Collieries and R v Blakeley -

PN1026

but it is not an objection to the genuineness of the dispute that the purpose of delivering a log of claims is to create an industrial dispute which will thereby give the Commission jurisdiction to make an award -

PN1027

and they go to R v Dunlop Rubber and then further down the page they say, in the next paragraph -

PN1028

The existence of an interstate industrial dispute is not negatived by the fact that at an earlier time there came into existence an intrastate industrial dispute ...(reads)... very often have their origin in a dispute in one state.

PN1029

And they go on to go to the Caledonian Collieries case which is one of those rare examples where a demand was held to be nothing more than an attempt to give the Commission jurisdiction in what was genuinely an intrastate matter. Now in that regard the Commission has to ascertain - for the purposes of this argument the Commission has to ascertain the intention of the ASU but it is, in our respectful submission it is the flip side of the proposition in relation to authorisation, that the only person's intention for whom it is relevant for the Commission to consider is the National Secretary of the ASU.

PN1030

CFMEU ex parte W. Dean and Sons, which is the authorisation case, says the log has to be properly authorised otherwise there is not a valid dispute. The only person the ASU contend in these proceedings who authorised the service of the log is the National Secretary, Mr Slape. It is therefore his intention which is the relevant issue. It doesn't matter what someone else said in a meeting some five months earlier, and the documents, in our respectful submission, sought in the summons simply do not assist in the determination of that issue. In relation to paragraph 1 of the summons the evidence so far, and the basis for the application as we understand it, the evidence so far establishes the existence of a single meeting convened sometime in the first half of 2001.

PN1031

The evidence does not establish that Paul Slape was even present at that meeting, and in fact he was not. Documents in relation to that meeting cannot therefore, in our submission, cast any light on the intention of Paul Slape serving the log. He was not at the meeting; the meeting occurred a significant time before the service of the log and the evidence of Mr Warren and the documentary evidence produced so far at any rate confirm that ultimately issues between the ASU and the MEAA regarding coverage of employees employed by Austar were resolved without the involvement of the ACTU.

PN1032

So to the extent that those matters are said to form the central underpinning for this argument that the whole thing is merely an attempt to attract the jurisdiction the evidence so far is that the ACTU was not involved. There is therefore simply no basis on which to require the ACTU to produce the documents in paragraph 1. I can say quite frankly that the ACTU has no documents relating to paragraph 2 of the summons but in any event the same argument applies. The evidence in the proceedings to date is that the ACTU was simply not involved in that arrangement. Paragraph 3 of the summons draws an even longer bow. It seeks materials which on any view of the evidence to date are simply not relevant to the question of the intention of the ASU in serving the log.

PN1033

Paragraph 3 - I have put the summons at tab 1 - paragraph 3, which is on the second page:

PN1034

All notes, memoranda, correspondence, minutes of meetings, resolutions or any other documentation relating to discussions or meetings held between ...(reads)... campaign and/or demarcation protocols.

PN1035

Now, firstly, the material in that goes to a wide variety of matters extending far beyond the unions involved in these proceedings and the employers involved in these proceedings, but on any view it is difficult to countenance that it casts any light on the question of the intention of the ASU in serving the log. On that basis therefore we say we have made out our first proposition, that the matters sought are simply not relevant. We make two further propositions in the alternative. The summons in our submission is too wide and oppressive. The ACTU regularly convenes meetings of affiliates in order to assist in the resolution of disputes relating to industrial representation of employees between unions.

PN1036

In our submission it is in the public interest that it continue to perform this role. The documentation sought in the summons, particularly in paragraph 3, extends to a wide range of documents which include affairs of other unions and deal with issues of some sensitivity in relation to the call centre campaign and the organising activities of a range of unions. Those documents include material relevant for strategies regarding recruitment of members by unions that are not party to these proceedings. They include strategies for the agitation of issues against employers who are not party to these proceedings.

PN1037

They include strategies for the advancement of conditions of employment of members of unions both involved in these proceedings and not involved in these proceedings against employers not involved in these proceedings. In our submission far too wide. Next we say that the summons seeks documents relating to the internal deliberations of the ACTU. The documents sought in the summons relate, in our submission, to internal deliberations of the ACTU in the discussion of industrial representation issues between affiliates and in relation - that is I suppose paragraph 1 - and in relation to the organising campaign in call centres in relation to paragraph 3.

PN1038

For the reasons already set out we contend that the documentation sought has no relevance, but even if contrary to those submissions the material has some relevance in our submission it is of such peripheral relevance as not to warrant a departure from the Commission's principle, that the internal procedures of the ACTU should not be subject of the summons. Those are my submissions in relation to the setting aside. If the Commission pleases.

PN1039

THE COMMISSIONER: Thank you. Mr Murphy.

PN1040

MR MURPHY: Thank you. Commissioner, as you would expect my client does not accept the matters put by my learned friend. The material sought from the ACTU is relevant to the genuineness of the industrial dispute because the material already before the Commission makes it clear that the ACTU has a role in relation to demarcation disputes between the ASU and the MEAA. In the ASU witness statement, ASU13 with the attachments to the statement of Paul Slape, at annexure C, there is a reference to this agreement between the ASU and the MEAA.

PN1041

Paragraph 7 in that agreement provides for a dispute resolution mechanism in relation to the agreement that involve the ACTU officers. This agreement with its reference to the dispute resolution role by the ACTU shows the link between the ACTU to the proceeding and to the genuineness of the dispute, given the previous exclusive coverage of call centres by the MEAA as a result of the Australis case. In the transcript at paragraph number 192 on 28 March Mr Slape said that the agreement:

PN1042

...was important in serving of the log of claims.

PN1043

So the genuineness of the agreement and the implications of the agreement are a central matter the Commission will need to determine. My learned friend's submissions are really based on asking the Commission to construe the contentions that have been filed by Austar without Austar even producing its evidence and hearing the case or even allowing the ASU to complete its case. So he wants the Commission to determine the validity of this summons without hearing any evidence at all as though that was the end of the proceeding and it is not.

PN1044

At paragraph 130 Mr Slape refers to this issue, that the ASU reject that there was any compromise. But also says that these sorts of compromises and discussions occur between unions. So what you have got, the background to the agreement and to this log of claims has been ACTU involvement in over-arching agreements in relation to coverage over some time, which is referred to by Senior Deputy President Polites in the Australis case, Mr Slape conceding that these sort of 118A agreements have occurred in the industry, an actual agreement between the parties in September 2001 that allows for an ACTU dispute resolution role and that we say draws the ACTU in as being relevant to whether or not this is a genuine dispute as distinct from a demarcation dispute and that is the issue that we have got to be able, in our submission, to agitate in the hearing and we need to look at these documents.

PN1045

The Commission needs to draw these documents, to require the ACTU to produce these documents, and then there should be an argument about whether the documents should go into evidence. Now my learned friend refers to the fact that the evidence doesn't sustain the role of the ACTU at this point. In evidence on 9 April Mr Warren, the General Secretary of the MEAA at paragraph number 780, gave evidence that there was discussions between officers and staff of the ACTU about the call centre campaign. At paragraph number 784 he said there was evidence about a meeting convened by the ACTU at the New South Wales Labor Council including officers of the ACTU between the ASU and CPSU and the MEAA were also present.

PN1046

At paragraph number 792 he refers to the call centre process and to a call centre group of unions and the call centre group of unions is convened by the ACTU and that is the point we are making, that really the ACTU was centrally involved in this call centre campaign and in the call centre group of unions. At paragraph number 813 Mr Warren refers to an ACTU protocol. He is asked by Mr Lawrence at that point - he is being questions about some documents that he produced in MEAA1 and he says:

PN1047

I assume they are talking about the agreed protocol as part of the call centre campaign.

PN1048

And the next question:

PN1049

Yes. So that would be the ACTU protocol?---Protocol.

PN1050

Thank you.

[10.49am]

PN1051

So what - the background to this subpoena issued by the Commission is the call centre campaign co-ordinated by the ACTU with a protocol that has been produced in some documents, the copy of the protocol has been produced in some documents that have been produced to my client by Mr Warren, the Federal Secretary. You will recall, Commissioner, that he said, his letter says to Ms Cotterell - I hand up a copy to the Commission of the documents, two copies, a copy for my learned friend, and I just at this point want to take you to the opening - they probably should have been sent directly to the Commission by Mr Warren but he has just sent them to our client, to my client, and I don't know whether they should be admitted into evidence at this point but for the purposes of this submission, Commissioner, could I just take you to the first page where he says:

PN1052

As you know at the hearing on 9 April I undertook to make certain extra inquiries about our files and to look for documents in the branches.

PN1053

And he made some inquiries and he has come up with some documents. So you recall Mr Lawrence cross-examined him extensively on the return of the summons to him and essentially he hadn't looked very far at all so he then, after he was cross-examined, he did look. Now those documents are very relevant because you will see in them, early in the piece, there is a document of 4 July 2001 which is a letter from the ASU to Mr Combet and the second paragraph of the letter refers to the issue of disputes between coverage - over coverage between unions and the responsibility to organise and then he has attached the policy, the ACTU policy, for new member organising.

PN1054

So that indicates - that is material that has come forward since the cross-examination on 9 April of ACTU involvement in this particular matter before the agreement that we are referring to. Now I will come back to those documents but I have highlighted those documents to you. I want to just continue with the references to the transcript, Commissioner. At paragraph number 895 Mr Warren refers to the issue of demarcation in the pay television area being settled by the decision of Senior Deputy President Polites in 1995 and that is a reference to the Australis decision and that - I don't know whether that decision has gone into evidence at this point but there has certainly been reference to it, Commissioner, but the decision is print M3518 and at page 12 of that decision there was a reference by the Commission, by Senior Deputy President Polites to an agreement between the MEAA and the NUW under the auspices of the ACTU.

PN1055

Now that is some years ago but it indicates that there is this history of ACTU involvement in settling demarcation disputes in the pay television industry that is referred to in 1995 and now we are coming forward to 2001 and this is why we are seeking the subpoena on these particular documents. The role of the ACTU is mentioned in documents that were produced by the MEAA the first time they appeared. In MEAA1 there is a letter from Mr Warren to Mr Slape and it refers to the ACTU call centre campaign in a letter dated 20 December 2000 and another letter dated 29 January 2001 and a further letter of 1 March 2001.

PN1056

In addition to that - so in the letters, in the documents produced by the MEAA there is reference to ACTU involvement in this call centre campaign in those letters in MEAA1. Documents that have been generated by the ASU also refer to a call centre charter and a minimum standards code. So we have got the first set of documents produced by the MEAA referring to the ACTU, documents produced by the ASU also referring to a call centre charter and code and then these further documents where there is a reference to the letter from Mr Slape - sorry, Martin Foley to Mr Combet with the attaching - attaching the protocol.

PN1057

Now in that bundle of documents you see the first of them - yes, the last document in the pile, in what I have handed up to the Commission, there is a letter from Mr Foley to Mr Pound, the MEAA Victorian Branch Secretary, and he says:

PN1058

I wish to confirm matters raised in our telephone conversation regarding the issue of union coverage at Foxtel and Ticketek as partners in the ACTU call centre group and in line with ACTU protocols we believe that it is in the interests of both unions to resolve these matters in a spirit of co-operation and in the interests of helping one another to achieve the best outcome for members in potential workplaces.

PN1059

And he therefore proposes in a sense a trade of members between the parties. So that is the beginning document in a sense of a trail that links the ACTU into this issue of the genuineness of the dispute and the log of claims that has been laid against my client by the ASU. It is also relevant in Mr Slape's relevant which as you will recall, Commissioner, there is a big lot of annexures to it. One of them is D5 and in D5 in the documents that accompanied the, when the matters were first issued to the Commission, they were blanked out, a number of sensitive matters were blanked out. D5 is a letter from Martin Foley, Branch Executive President, to Mr Slape of 21 June 2001. Does the Commission have that?

PN1060

THE COMMISSIONER: Yes, I have got that, yes.

PN1061

MR MURPHY: Now you will see that it is blanked out - you will see that - I want to take the Commission to the third paragraph and the paragraph starting with the words, "Therefore". Now you will see that that - is your copy blanked out?

PN1062

THE COMMISSIONER: Yes, it is.

PN1063

MR MURPHY: Yes, well, the ASU subsequently provided to the solicitors for Austar unblanked out copies because they said they were sensitive but the particular sentence that I want to read out I don't think ought to be sensitive, that is blanked out, and it is relevant to the role of the ACTU because what that full paragraph reads is:

PN1064

Therefore we must inform you that should the matter not be resolved within seven days we will be forced to act in our own behalf and approach the MEAA locally to resolve the issue and failing that seek to invoke the ACTU "use it or lose it policy with the relevant officers of the ACTU.

PN1065

There is no end of quotes. And then it goes on again:

PN1066

Failing that we would seek advice as to how to challenge the section 118 order from the early 90s granting the MEAA coverage. If necessary we will begin our own efforts in attacking the MEAA coverage legally.

PN1067

Now I will hand up a copy of the unblanked, the unblanked out letter that Mr Foley wrote to Mr Slape which Mr Slape had annexed to his original statement. Now - - -

EXHIBIT #A6 LETTER FROM MR FOLEY TO MR SLAPE

PN1068

MR MURPHY: Yes, thank you. So the date of that letter is very significant, Commissioner, because you have the original letter between the two parties of 3 May referring to the ACTU, then you have the letter of 21 June between Mr Foley and Mr Slape and then not two weeks - referring to the use it or lose it campaign, a policy of the ACTU, in relation to coverage and you then have the letter to Mr Combet on 4 July 2001 and going to the bundle that I have handed to you the further letter to - the second letter, the third letter in the group is a letter from Mr Foley to Mr Pound, the Secretary of the MEAA, advising that he has referred the matter to the ACTU for assistance.

PN1069

So we say that all those documents indicate that there is ACTU involvement in the sense that the next item in the chronology is the agreement of 12 September with the ACTU in a sense dispute resolution clause in it in paragraph 7. Now what I want to now address is why the individual elements of our summons, or the summons that was issued by the Commission, are relevant to the issues that Austar wishes to agitate as to the genuineness of the dispute and first I want to refer the Commission to the summons issued by the Commission to MEAA on 5 March 2002, paragraph 5, and I might say, Commissioner, listening to my learned friend Mr Watson he was really acting as an advocate for the ASU as though he was giving the final address in this hearing.

PN1070

He wasn't addressing the role of the ACTU as such in most of his submission is what we are here about which is to argue whether or not the ACTU should be the subject - should be required to return this on this subpoena. Now the summons issued by the Commission on 5 March 2002, paragraph 5 of that, the Commission - and that has been called on by the Commission. The wording of the summons that was issued, paragraph 5 of the summons directed to the MEAA, it says:

PN1071

All notes, correspondence -

PN1072

etcetera -

PN1073

relating to officers or employees of the ASU acting in any capacity on behalf of or with approval of MEAA in respect of employees of Austar.

PN1074

Now then when I then take you to the summons issued against the ACTU what it is - the wording is the same but it is not directed to the MEAA, it is - paragraph 1 - it is directed to:

PN1075

All notes, memoranda -

PN1076

etcetera -

PN1077

of employees of the ASU acting in any capacity on behalf of or with the approval of the MEAA and/or the ACTU in respect of employees of Austar.

PN1078

So the counterpart - it is seeking documents that are similar to the documents that were ordered for the MEAA to produce but whether the - for ACTU involvement in this and given the material that is already before the Commission as to ACTU involvement in a call centre campaign, in a demarcation protocol, in this agreement that is referred, that is in evidence by Mr Slape, in our submission this is directly relevant to the question of whether this is a genuine log of claims by the ASU or merely a manifestation of a demarcation dispute or some sort of compromise or body trade for members between the two unions arising out of some dispute between the unions as distinct from a genuine dispute trying to advance the wages and conditions of members.

PN1079

The request that - the summons, paragraph 1 of the summons is not too wide because it specifically focuses on Austar and the production of any documents will allow the Commission to determine the importance of this agency agreement which Mr Slape has conceded was important, agreed between the two unions, and whether the later dispute is a genuine dispute or really not a genuine interstate dispute. We submit that it won't disclose any internal deliberations of the ACTU and even if it did the Commission should be - the documents should be produced to the Commission to determine whether they are a genuine internal deliberations or whether in fact, in order to determine whether this dispute is genuine even if they were internal deliberations the material is probative for the matters that are being put by Austar and therefore should go into evidence because just to call a matter an internal deliberation of the ACTU it is not a blanket Crown immunity claim, it is a question ultimately as to whether the material in the document will be probative of the issues that the Commission has got to determine which is the genuineness of the dispute.

PN1080

So that is what I say about paragraph 1 of the subpoena and my learned friend says respectively there is no documents relevant to that, well, the question immediately arises, well, when Mr Combet got the letter from the MEAA what did he do about it, where is the file that he generated.

PN1081

MR WATSON: I don't say there is no - I didn't say no document is relevant to paragraph 1, I said no document is relevant to paragraph 2.

PN1082

MR MURPHY: All right. Well, paragraph 2, I don't know whether that is 2(a) or 2(b) because paragraph 2(a) - - -

PN1083

MR WATSON: Both.

PN1084

MR MURPHY: All right. Well, in any event the question arises, well, what happened to Mr - did Mr Combet generate a file in relation to that. Paragraph 2, it is similar to paragraph 6 of the summon that was issued by the Commission to the MEAA and it is in a sense the counterpart. Again it is specifically focussing on the agency agreement and given the prior history of the ACTU in over-arching and auspicing membership disputes between, resolution of them between the parties, between its affiliates, the membership. In the earlier documents from the MEAA you will recall that there was an issue that the MEAA joined the ACTU call centre group. So they were part of this call centre group which was - clearly arose when the campaign was organised and they came into it later and you have got the call centre group, you have got a protocol for the organising, you have got the matter being referred to the ACTU, you have got an agreement in relation to the coverage and then you have got this industrial dispute, log of claims, which has been issued.

PN1085

Now my friend complains about paragraph 3. We say that that is not too wide, it is not oppressive and it is not fishy. There is clearly a demarcation dispute resolution mechanism in the call centre industry. The ACTU has a protocol regarding such disputes. The membership of both the ASU and the MEAA are members of this ACTU call centre group and it is common ground that there was an ACTU call centre campaign and it is all in the context that the MEAA had exclusive coverage under the 1995 agreement for pay television.

PN1086

So we say therefore that the documents are relevant to the three parties and are specific to the call centre campaign - the MEAA, the ASU and the ACTU - and relevant to the call centre, to the demarcation protocols and they are the two central issues in the genuineness of the dispute and they are also relevant, despite what my learned friend says, to whether it is a genuine interstate dispute or just a dispute really in one state. What is being put by Austar in its contentions is essentially this is not a genuine dispute under the requirements of genuineness, this is a sham dispute that is really a demarcation dispute.

PN1087

It is said that these are too wide and fishy. I would submit to the Commission they are not because the call centre campaign is well known, it has been in the papers, and that really indicates that the demand in paragraph 3 relates to that call centre campaign. No one in the ACTU would be confused about that. Similarly in relation to demarcation protocols, it has already been annexed to the letter that was sent to Mr Combet and it was put that the ACTU regularly settles demarcation disputes between affiliate unions and it is in the public interest that it should be able to do that. That is accepted but that is different from this issue as to whether in context of a demarcation protocol the ACTU should be, in a sense, able to say, well, look, we are not going to provide any documents to assist the Commission to determine whether or not out of one of these agreements a subsequent log of claims by a union that didn't have coverage is a genuine industrial dispute.

PN1088

Paragraph 3 of the summons that has been issued by the Commission it relates - my learned friend says, look, there will be all sorts of meetings with all sorts of unions in the ACTU and that is accepted but this asks specifically for meetings involving the three players here, ASU, ACTU and the MEAA and clearly since the letter to Mr Combet by the ASU it is likely there would be such meetings and they would be relevant to determining whether or not a subsequent log of claims are genuine. Now I would just like to refer you to, shortly to one case I haven't been able to bring a copy for you but I will hand it up. It is just a decision of Senior Deputy President Williams in the Australian Building Construction Demolition Employees and Builders Labourers Federation, 27 January 200, print S2656. It is just a summary of the issues in relation to the summons, to the issuing of summonses by the Commission and it sets out what is required.

PN1089

It points out that there are three steps involved in the return of a summons that first involves the objections of witnesses to the subpoena, which is really the step we are at now. The next step is the decision concerning the preliminary use of the documents and then the third step is the admission of the documents into the evidence. Now we would submit that on the material we have put so far there is clearly going to be some documents that are relevant and then they should be brought, the summons should be called on and then the Commission can determine the next step. What Senior Deputy President Williams says at paragraph 13, he talks about the power to issue summonses. He says:

PN1090

The power to compel production of documents is discretionary and not mandatory.

PN1091

He says in the case of a corporation it is to be directed to the proper officer - this was:

PN1092

It must specify with reasonable particularity the documents which are required to be produced.

PN1093

We say they do, and I have gone through each of the three paragraphs:

PN1094

Too wide or imprecise a description may render the summons oppressive to the person to whom it is directed.

PN1095

And then he goes on:

PN1096

The documents sought must be of a nature capable of being relevant to an issue which might legitimately arise on the hearing of the substantive matter.

PN1097

Well, we have got the evidence of Mr Slape that the agreement was important in the log of claims. So that gives the link. My learned friend says, well look, it is - in determining the genuineness of this log of claims we have got to look at the focus on the mind of Mr Slape, the person who made it. That he said the agreement was relevant was important to that, on transcript, and then you go back to the background to that agreement, the protocols, the call centre campaign. So that, and the ACTU has got its hands all over that.

[11.12am]

PN1098

And that is why the documents are relevant to whether ultimately he was genuinely making that log of claims and it says:

PN1099

The production of the documents must be sought for the purpose of the particular litigation, ie, for the purpose of obtaining evidence to support a case and not for some spurious or private purpose.

PN1100

Now here we say that they are being sought for this particular case namely to whether or not it was a genuine industrial dispute and then in paragraph 14 he discusses this issue of internal deliberation and there is a quote from re Marks ex parte the building constructions unions and he says:

PN1101

When an application is made for the issue of a summons the Commission has a discretion to grant or refuse it. Generally speaking the Commission will exercise its discretion in favour of the applicant unless it appears that it would be vexatious or frivolous or otherwise an abuse of process to issue the summons.

PN1102

And he says this statement is equally applicable to the setting aside of a summons and at paragraph 13 he refers to internal deliberations:

PN1103

Although the Commission should be ...(reads)... to the Commission of evidence relative to important issues of fact.

PN1104

Now it is an important issue of fact as to the antecedence to this agreement and to whether or not, following that agreement, whether it is a compromise between the ASU and the MEAA, the 12 September agreement and the protocol. They are important issues of fact to determine whether ultimately the log of claims is genuine. So I will hand up a copy of this decision for the Commission. So replying specifically to what my learned friend says he has basically asserted that the contentions that have been put by my client are in a sense the usual suspects for challenging disputes. We say that he is taking the cart before the horse because the issue ultimately is whether the production of these documents will assist Austar in its own case and we say it is not as though we have been fishing for a case, the material already before the Commission indicates ACTU involvement and therefore that will provide - may provide evidentiary support for what is being alleged already.

PN1105

He says, one of the arguments he says he has got a practical objection to the production, that it is going to require cross-examination of people. They are all matters that the Commission could determine at the time ultimately when the documents are produced. Whether they go into evidence will be a matter of subsequent determination by the Commission as will the question of cross-examining witnesses. He says that they are not relevant, the documents are not relevant beyond the particular parties to the application. Well, we submit that on the material already before the Commission the documents are relevant because the ACTU had this over-arching role.

PN1106

He mentioned the Australis case and I have already referred you to the page and it refers to an earlier ACTU agreement. He has asserted that the organising campaign is not relevant to this proceeding but it is clearly relevant because, as I said, on the chronology there was an organising campaign and the MEAA were not a member of it. They had pre-existing exclusive rights in the pay TV industry. They joined the call centre campaign. There is then a dispute about who has got coverage in the Austar call centre and then the matter is referred to the ACTU and low and behold there is a resolution, an agreement between the parties with a dispute resolution involving the ACTU officers.

PN1107

He mentions paragraphs 15 and 16, as to whether the genuineness - he points to assertions of fact as to whether or not the log is genuine but ultimately whether there has been a trade in members here it will be a matter for the Commission to determine at the end of the day. I have mentioned the question of the intention. The only person whose intention is relevant is Mr Slape, the National Secretary; that he himself has conceded that that agreement was important. And so we say that the subpoena should be called on and that it won't, it is not - we are not involved, the Commission hasn't issued a fishing exercise, it is not seeking internal deliberations and even if the documents show up internal deliberations then they should be the subject of inspection so that whether they go into evidence or not should be determined. Unless there is anything further.

PN1108

THE COMMISSIONER: Thank you, follow all of that. What do you people say?

PN1109

MR WATSON: Just some matters by way of reply. My learned friend's argument concedes by implication, it seems to me, that they really don't have a feather to fly with in terms of the issue of the summons in relation to any of the grounds advanced in their contentions except genuineness. He makes the assertion in relation to interstateness but it didn't seem to be at all developed in his argument. So it is in relation to genuineness that I will focus my reply. The essence of the proposition put in relation to this is that because the ACTU is mentioned in some correspondence that therefore somehow or other that necessarily means it is inherently relevant. That is the essence of it. It is dressed up a little bit but that is basically what it boils down to.

PN1110

But I took the Commission in my argument to the relevant portion of the contentions and I will take the Commission back to that. At paragraph 15 and 16 they say:

PN1111

The ASU has sought to enter into an arrangement with the MEAA by which the ASU would assume certain members of the MEAA. Such a trade in members, if it be at all legitimate, cannot give rise to an industrial dispute.

PN1112

Now we have said, in any event, that is wrong but - as a conclusion of law, but my learned friend said on numerous occasions the ACTUs involvement is all over this but that is entirely contrary to the evidence of Mr Warren. Yes, there was correspondence. There was correspondence to the ACTU asking for things to be invoked and the like and the evidence of Mr Warren is that there was a meeting not attended - he doesn't say Mr Slape was there and I am instructed he was not there - there was a meeting, and this is at 784 of the transcript:

PN1113

...a meeting convened by the ACTU sometime in the first half of 2001.

PN1114

Who attended?---Representatives of ourselves, the ASU and the CPSU and there may have been one other union there and of course officers of the ACTU.

PN1115

So that is at 784 to 787:

PN1116

Yes, and this was designed in whole or in part to deal with the issue that had arisen between the ASU and your union?---No, it was to deal with an issue between the ASU and the CPSU ...(reads)... resolved out of discussions between myself and Mr Slape.

PN1117

So the contention which is advanced is, look, there is this agreement and somehow or other that means there can't be a dispute. Well, it is wrong as a matter of law but even if it were right what does Mr Warren say about the agreement, he says, look, it was resolved out of discussions between myself and Mr Slape. Now that is, in our respectful submission, the short answer - when one looks at the authorities about whose intention the Commission has to consider, that is the short answer about paragraph 1 of the summons. The short answer about paragraph 1 is that the evidence to date is that there was one meeting in the first half of June 2001. Mr Slape - there is no evidence Mr Slape attended and as I say I am instructed he did not, and then the evidence of Mr Warren is that the agreement which arises, and this I suppose in essence goes to paragraph 2 as well, the agreement which arises, arises out of discussions between himself and Mr Slape. No ACTU involvement. That is what we say about that.

PN1118

Now my learned friend made a number of assertions that the MEAA had previously had exclusive coverage of call centres although I think at one point he did say the pay television industry. On any view that is wrong. I referred the Commission to the order in the Australis matter and I can hand - I only have one copy, I am sorry, and it is an Osiris print copy but I can hand that to the Commission. The Commission will see the following: firstly, it is limited to Australis, it is not a general order in relation to the entirety of the pay television industry; secondly, it does not bind in any way the ASU. Whatever coverage the ASU has in relation to pay television existed prior to that order and continued to exist after that order, completely unaffected.

PN1119

The notion that somehow or other the MEAA had some exclusive area of coverage, whatever the practice of the matter - they may have in practice been the only organisation with members - but as a matter of law the suggestion that somehow or other any agreement reached by Mr Slape and Mr Warren altered the law seems on the basis of the material advanced simply unsustainable. Now the essence of, as I say, the argument against us is, well, things are referred to and therefore they are relevant and therefore they should be produced. But that is precisely - that is precisely the point we make about this being a fishing expedition because then there will be things that are mentioned in our documentation or unions that are mentioned and so then there will be a need, you know, it will be said, well, these things are mentioned or referred to in correspondence and so we need to get to the bottom of those.

PN1120

That is precisely the point. The mere fact of a reference to the ACTU, the mere fact of a reference in evidence to a meeting which did not involve the person whose intention, so far as the genuineness issue, is the critical issue is not to the point and going to letters from Mr Foley to Mr Slape they might indicate all sorts of things about Mr Foley's intentions. They might, if they are put to Mr Slape, indicate something about his intention but they tell you nothing about the ACTU and any documents held by the ACTU can have no bearing on those issues. I mean, the fact that Mr Foley says that at some point or other he intended to invoke the ACTU processes says nothing about whether he did, nothing about whether the ACTU agreed to.

PN1121

I mean, this is the very issue and all of these things are seen against a backdrop where the evidence of Mr Warren and of Mr Slape is, look, we sorted this out amongst ourselves. Now my learned friend attempts to justify paragraph 3 of the summons in this way. He says, well, it is limited to meetings which involve the ASU, the ACTU and the MEAA. Well, that is right, it is, but whether it is that he doesn't know or whether it is a convenient gloss I am not sure but the fact is that there are many meetings of the ACTU in relation to the organising and implementation of the call centre campaign which involved the ASU, the ACTU, the MEAA and other unions. That is the very proposition we make, that many of those meetings involve the affairs of other unions related to the affairs of those unions vis-a-vis other employers.

PN1122

It is for that reason that we say it is too wide and it is for that reason, we say, it goes to internal processes and that in the balance that evidence is so peripherally relevant, even if we are wrong, even if we are wrong about our fundamental proposition, it is so peripherally relevant that it simply ought not to be produced. Those are the submissions in reply. If the Commission pleases.

PN1123

THE COMMISSIONER: Thank you. Can I just ask in relation to the Labor Council Meeting that was held in New South Wales and I note the references you have taken me to in the transcript in terms of Mr Warren's recollection, are you able to tell me whether or not there were any minutes of that meeting that were taken by the ACTU?

PN1124

MR WATSON: There are no minutes, there are notes - there are notes.

PN1125

THE COMMISSIONER: And in terms of - I take it had there been a resolution determined at that meeting there would have been a record of such a resolution if it involved the ACTU?

PN1126

MR WATSON: There are, if you like, notes. There is no - yes - how do I put this. There are notes of conversations conveying the views of the ACTU with relevant officers of relevant unions, yes.

PN1127

THE COMMISSIONER: Right, and that following that meeting the MEAA and the ASU and I assume the CPSU, since they got a mention in dispatches, determined their own positions following that meeting, would that be right?

PN1128

MR WATSON: Indeed.

PN1129

THE COMMISSIONER: In relation to point 2 of the summons you say there is no material at all that you would be able to produce?

PN1130

MR WATSON: Yes. We say there is no material relevant to either of the matters in (a) or (b).

PN1131

THE COMMISSIONER: All right, thank you. Mr Murphy, the document that you handed up contained what I understand was the protocol that is in place, is that right?

PN1132

MR MURPHY: Well, that is - - -

PN1133

THE COMMISSIONER: Or what you believe to be the - - -

PN1134

MR MURPHY: We assume that, yes, because it refers to that in the letter to him.

PN1135

THE COMMISSIONER: Yes. The only - is there a page missing because mine starts half-way through 2.4, I assume, and then - - -

PN1136

MR MURPHY: Yes, well - - -

PN1137

THE COMMISSIONER: Which suggests there is another page somewhere.

PN1138

MR MURPHY: Well, no, we have given you what we got. I suspect that - - -

PN1139

THE COMMISSIONER: What was given by the MEAA?

PN1140

MR MURPHY: Yes. I suspect that was really just - it might have been a longer document. He has just pulled out the relevant bare part of the protocol.

PN1141

THE COMMISSIONER: Yes.

PN1142

MR MURPHY: There was reference in the transcript. I can't recall - there was a reference to - I think Mr Minuzzo producing - Nucifora asking that that protocol be produced at one stage in the, or saying that that could be produced. Now maybe the whole document - he was virtually saying that the ACTU, before they became involved, could produce the protocol but whether this is the document we can't say.

PN1143

THE COMMISSIONER: Look, I think that is right and it is the reason why I included it in the summons that I originally issued.

PN1144

MR MURPHY: Yes.

PN1145

THE COMMISSIONER: All right. Having considered the submissions of the parties in relation to the issuance of the summons and bearing in mind that the substantive hearing of the application is set down for two weeks time and I am very reluctant to delay those proceedings any further, I am satisfied that the submission that has been made by the ACTU is appropriate in the circumstances. I am satisfied with the explanation that has been provided to me of the circumstances around the campaign, the call centre campaign, and the involvement of the ACTU and I accept the submissions of Mr Watson in relation to this matter and I will set aside my summons. The Commission stands adjourned.

ADJOURNED INDEFINITELY [11.32am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #ACTU1 ACTU OUTLINE OF SUBMISSIONS PN950
EXHIBIT #A6 LETTER FROM MR FOLEY TO MR SLAPE PN1068