AG2003/44, Transcript of Proceedings [2003] AIRCTrans 1027 (24 March 2003)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N WT036
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT McCARTHY

AG2003/44

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by Silver Chain Nursing Association Inc for
certification of the Silver Chain Enrolled
Nurses Agreement 2003

PERTH

10.19 AM, FRIDAY, 7 MARCH 2003

Continued from 6.2.03

PN2099

THE DEPUTY PRESIDENT: Good morning, gentlemen. Mr Kelly, can I just address a couple of questions to you first. You've made a couple or more requests for, in effect, discovery and there was an original request back on 3 February in writing for discovery, a letter addressed to Mr Blackburn a copy of which you forwarded to me. The latest requests appear to go purely to the ballot related issues.

PN2100

MR KELLY: Yes. That is correct.

PN2101

THE DEPUTY PRESIDENT: Whereas the previous request went to a range of other issues of documentation and information.

PN2102

MR KELLY: Yes.

PN2103

THE DEPUTY PRESIDENT: Are you still agitating or requesting the documentation related information because there has been a significant amount of material that has been provided since that original request was made?

PN2104

MR KELLY: Sure. Well, I suppose the latter application for discovery in one sense, in our view, doesn't need to be considered because there is sufficient information before you now to determine that the application for certification should be refused and we can discuss that, I am sure we will discuss that later.

PN2105

But in the event that you come to the view that it is still possible for this application to be further considered, it would be our view that given that Silver Chain have acknowledged that there are a number of ballot irregularities that have occurred, we re-make our application for discovery in respect of lists of employees who were included, excluded and that type of material and I think that is the request that we've made, the latter request.

PN2106

THE DEPUTY PRESIDENT: So, can I put it this way. If I am not satisfied that the agreement is certifiable then the requests for lists of employees etcetera becomes unnecessary?

PN2107

MR KELLY: That is correct, yes.

PN2108

THE DEPUTY PRESIDENT: If I am satisfied, then is the only information you are requiring a list of employees, their status, which employees were issued with ballot packs and which employees were issued with agreement packs, is that the - - -

PN2109

MR KELLY: Yes. Basically all the - - -

PN2110

THE DEPUTY PRESIDENT: Is your request confined to that?

PN2111

MR KELLY: Yes. We would - - -

PN2112

THE DEPUTY PRESIDENT: So the request you made in the letter of 3 February, apart from the ballot related issues, you've been satisfied?

PN2113

MR KELLY: No. I mean, we made an application for discovery which you declined.

PN2114

THE DEPUTY PRESIDENT: Yes.

PN2115

MR KELLY: Now, we don't remake that application because you've made a decision in respect of that. Now, in light of the new information specifically related to the ballot.

PN2116

THE DEPUTY PRESIDENT: Yes.

PN2117

MR KELLY: We would say, if you are of the view that there is still some life in this application, which we submit there isn't, the Commission can't possibly be satisfied that all is well without having that material before it.

PN2118

THE DEPUTY PRESIDENT: Yes. Well it is one thing before the Commission as against before you.

PN2119

MR KELLY: And well, we would also seek access to that material.

PN2120

THE DEPUTY PRESIDENT: Yes.

PN2121

MR KELLY: Yes

PN2122

THE DEPUTY PRESIDENT: Well, coming back to 3 February request, notwithstanding that the request was denied, is there any documentation that is requested in there that hasn't been provided?

PN2123

MR KELLY: Well, we don't know what hasn't been. The employer has provided us with a number of documents which were either sent to employees or, you know, distributed in the workplace. We don't whether that is the totality of it or whether that is just a selective, the employer's selective - whether they have just provided what they seek to provide to the Commission to prove their case. So we don't know what - I mean, if they're going to tell us that, well, there is no other material or documentation relating to the agreement, well then obviously we would be satisfied.

PN2124

THE DEPUTY PRESIDENT: Can I put it this way. If there is anything that has not been provided that was requested in that request of 3 February, then you should alert me to that and if there is further information you request then you should provide some particularity of what you are requesting and the purpose of the request.

PN2125

With respect to the ballot information, as you acknowledge, if I am not satisfied that the agreement meets all the tests then it becomes irrelevant. If I am satisfied then I will consider that issue of your request for discovery and I will consider it on the basis of whether the information is provided to me or to you or to both of us. So I won't rule on that at the moment until I am either satisfied or not satisfied. Does that satisfy you?

PN2126

MR KELLY: I think so.

PN2127

THE DEPUTY PRESIDENT: Yes, okay. Mr Blackburn.

PN2128

MR BLACKBURN: Yes, your Honour. If you're happy I will proceed then, shall I?

PN2129

THE DEPUTY PRESIDENT: Yes.

PN2130

MR BLACKBURN: Thank you. Your Honour, have you had the opportunity to look at the submissions that we provided on 18 February?

PN2131

THE DEPUTY PRESIDENT: Yes. I have.

PN2132

MR BLACKBURN: So what I propose not to do then is go through those submissions.

PN2133

THE DEPUTY PRESIDENT: Thank you.

PN2134

MR BLACKBURN: It will give us both some - everyone some relief. Your Honour, if I might by agreement with Mr Kelly to assist Mr Bradshaw, if I might call him first and then I propose to make some remarks in relation to the two decisions that have come down since we were last before you, one in Grocom and the other in Energy Developments.

PN2135

THE DEPUTY PRESIDENT: Yes. Thank you.

PN2136

MR BLACKBURN: Thank you. I call Ross Bradshaw.

<ROSS EDMUND BRADSHAW, SWORN [10.24am]

<EXAMINATION-IN-CHIEF BY MR BLACKBURN

PN2137

MR BLACKBURN: Your Honour, I have a copy of the affidavit Mr Bradshaw sworn on 20 February, if that could be provided to the witness or if you have a copy that can be provided to the witness. Mr Bradshaw, can you please state your full name and your occupation?---Okay. it is Ross Edmund Bradshaw, I am Chief Executive of Silver Chain.

PN2138

And the document that has been handed to you, is this your affidavit?---It is.

PN2139

And do you swear that to the best of your knowledge and belief it is true and correct?---I do.

PN2140

Your Honour, if I could seek to have the document tendered?

EXHIBIT #A29 AFFIDAVIT BY ROSS EDMUND BRADSHAW

PN2141

MR BLACKBURN: Mr Bradshaw, if I could take you to paragraph 13 of the affidavit, which refers at subparagraph (a) to a casual employee identified as NJ, who didn't work during the voting period and you say that she had been omitted from the mailing list as a result of being wrongly classified as AWA and you also say in the preamble to that paragraph that she was not entitled to vote in any event. You say that she was wrongly classified as AWA, do you know what industrial instrument, if any, she was employed under?---Yes. I do. She is employed under Silver Chain's standard individual workplace agreement, which is the State based agreement.

PN2142

Thank you. Nothing further, your Honour.

PN2143

THE DEPUTY PRESIDENT: Thank you. Mr Kelly.

<CROSS-EXAMINATION BY MR KELLY [10.27am]

PN2144

MR KELLY: Mr Bradshaw, you were the signatory on a statutory declaration that accompanied the original application that was submitted to the Commission?---I was.

PN2145

Yes. And would you accept that the information provided in that statutory declaration was sloppy?---No.

PN2146

All right. Would you acknowledge that the information provided in it was wrong?---Well you are you saying, the information, as if the whole thing is. Clearly we have acknowledged there were some people who should have received voting papers who didn't if that is the point you're getting at.

PN2147

All right. So, where it says in that statutory declaration, for example, that all employees were mailed a copy of the proposed agreement on 20 December 2002, you acknowledge now that that is wrong?---That is correct.

PN2148

All right. So I put it to you again that this statutory declaration was put together, well, sloppily, without due attention to detail?---You may wish to, you're wrong.

PN2149

All right. So, are you saying that you prepared the statutory declaration to the best of your ability?---It definitely was done to the best of our knowledge and ability.

PN2150

All right. And so what, you put due attention to detail in preparing it, did you?---Yes.

PN2151

All right. You didn't just slap it together?

PN2152

MR BLACKBURN: Your Honour, I object. The question has been asked about five times.

PN2153

MR KELLY: This is cross-examination, I can ask the question in as many ways as I like. May I proceed, Commissioner?

PN2154

THE DEPUTY PRESIDENT: Yes.

PN2155

MR KELLY: You didn't just put the statutory declaration together carelessly or without attention to detail?---Mr Kelly, we tackle these issues well - - -

PN2156

Can you just answer the question?---I am. We tackle these issues seriously, it was tackled seriously with due diligence and to the best of our ability and to the best of the resources that were available to us.

PN2157

All right. But ultimately, it was wrong?---Ultimately, as we've already acknowledged, one component of it was incorrect.

PN2158

All right. Okay?---I don't acknowledge the whole declaration is wrong.

PN2159

No one is suggesting the whole thing is wrong, but ultimately you accept that some of the information was wrong?---I accept that we did not mail voting papers to some people who were, as we've since discovered, employees.

PN2160

All right. So some of it was wrong?---I just told you.

PN2161

Well, you can say yes. It is a simple question, was some of the information wrong?---Well - well, all I will say is that, as we've already - - -

PN2162

But was it wrong?---Well, Mr Kelly, you either want me to give you the answer or say your - - -

PN2163

Yes, I do. I just want you to tell me, was some of the information in the original statutory declaration wrong?---The answer to that is that the section that said that we mailed voting papers to - or papers to all ENs employed by Silver Chain at the time has since now found out to be incorrect.

PN2164

All right. Now, the second - well, the affidavit that you've put together for these proceedings you've put together with due care and due diligence?---This one before me now?

PN2165

Yes, that is correct?---Yes. Correct.

PN2166

All right. Okay. Now, you say in the affidavit that at paragraph 10 - no, paragraph 8, that:

PN2167

On 7 February 2003, I instructed Silver Chain Industrial Relations Officer, Alexandra Robinson, to fully investigate the matter is that correct?---That is correct.

PN2168

All right. So, you then at, I think at paragraphs 10 and 11, 12 and 13 you refer to information that Ms Robinson has advised you, is that correct?---That is correct.

PN2169

All right. So is it correct that you didn't conduct the investigation yourself but Ms Robinson conducted it on your behalf?---That is correct.

PN2170

Right. Okay. So you personally didn't check the mailing lists and the people who were included and excluded it was Ms Robinson who did that?---I've - I've seen the working paper but in terms of the interactions with the Managers validating the list no, I didn't do that.

PN2171

All right. Okay. So it could be that Ms Robinson has made an error and the affidavit that you've provided just reflects the advice that she has given you?---Well, the affidavit reflects the advice that was given to us, I am confident that it is accurate.

PN2172

All right. But you were confident that the information provided in the original statutory declaration was correct, weren't you?---That is correct.

PN2173

All right. So I put it to you that in the same way that the original statutory declaration was incorrect it may well be that the information in your current affidavit could be incorrect?---If I believed that I would have sent in the affidavit that I thought it was accurate. We followed a process, I am confident we've - we've done what is humanly possible to validate the list.

PN2174

All right - - -?---We are happy to explain what we did.

PN2175

But you did that for the statutory declaration, didn't you, you didn't put it - as you've told me, you put the original statutory declaration together with due diligence and expertise?---That is correct - that is correct.

PN2176

You didn't do it slap dash?---No.

PN2177

No, all right. But some aspects of it were wrong and you've acknowledged that, of the original statutory declaration?---I've acknowledged one aspect was.

PN2178

Yes. All right. I put it to you that equally, if Ms Robinson has made an error that would be reflected in your current affidavit?---Well, I've repeated the advice that I've received so that would be correct.

PN2179

All right. Okay. Can I just ask you, at paragraph 9 I think you refer to an inactive list?---Yes.

PN2180

I think it is referred to at 5 as well. Do you know how many staff are on the inactive list?---How many are?

PN2181

Yes?---No. I don't have that figure in my head.

PN2182

Have you got any idea, was it five, 50?---Well to the extent that it has an impact on this issue, we've documented the staff on that list because the inactive list - my understanding, the inactive list is that it is a list of people on unpaid leave or maternity leave and given that and we have - - -

PN2183

But have you got any idea, like, are you able to say whether it is five or 100, like, have you any idea?---Well it won't be 100.

PN2184

All right. It won't be 100 but it may be more than five?---Well, it will be - it will be the people we've reported here.

PN2185

All right. So these are the only people on the inactive list, the ones who are referred to in the affidavit?---To the extent that they're Enrolled Nurses and affected by this process, yes.

PN2186

No - no. You've referred to an inactive list - - -?---Yes, well - - -

PN2187

You've told me you don't know how many people are on it?---Yes.

PN2188

I'm just trying to get, are there more people on the inactive list than are referred to in your affidavit?---In terms of Enrolled Nurses.

PN2189

No - no. All staff who are - you've referred to an inactive list - - -?---Well, I don't - I don't believe that is - - -

PN2190

How many - I'm trying to get from you, Mr Bradshaw - - -?---Well, I - I can't answer that question because you're asking me in relation to Registered Nurses, administration staff, you know, care aids, home helps. I mean, why would have I studied that.

PN2191

All right. So the inactive list that is referred to in - if you just - we will get through it much quicker. So the inactive list contains people other than Enrolled Nurses on that list?---Well, it - can I - can I explain how it works because it is not a list.

PN2192

THE DEPUTY PRESIDENT: Well, Mr Kelly, Mr Bradshaw is entitled to give an explanation, you've asked the question. It will either be given in re-examination I would assume or it will be given now. It would be more efficient, I think, to be given now. So, Mr Bradshaw, can you give the explanation?---Yes. So in terms of the payroll system, employees of all classifications can be tagged as inactive. So, as such, it is not a list until you produce it for a particular inquiry, so that employees either active or inactive and that depends on the nature of the work they're doing. So the production of the list that you're asking me about is not a global list, it is a list that is produced in relation to Enrolled Nurses. And to the extent that we're talking about that list, yes, the people referred to in that list have been reported on in this - this document.

PN2193

All right. So if you just created a list of inactive Enrolled Nurses?---Yes.

PN2194

Would there be more people on that list than are referred to in this affidavit?---No.

PN2195

No. So when you told me earlier that you didn't know how many people were on the inactive list you're now saying the only people on the inactive list are the one, two, three, four, five, six, six people referred to in the affidavit?---Not necessarily, I would have to count them I haven't - I haven't analysed it in that way. The people on the inactive list are those who are on maternity leave or on unpaid leave. So that a casual who - we refer to in here, like a casual who didn't work in the voting period that person wouldn't be on the inactive list.

PN2196

Would not have been on the inactive list?---No.

PN2197

All right. Okay. So let us go through them?---So we should go through them if you like.

PN2198

All right. So "T" - - -?---"TC" would be.

PN2199

Would have been on the - this person had been on the payroll departments inactive list?---For the period the person was on maternity leave.

PN2200

Yes. All right. Now "B"?---"DB"?

PN2201

"DB"?---Was a - was a casual and that person would not have been, that person was missed because we incorrectly had the person flagged as being on an Australian Workplace Agreement.

PN2202

All right. Okay. Now "MS"?---"MS" was on the inactive list.

PN2203

All right. So that is two?---"KH", that employee commenced maternity leave, so in that situation the person or I understand was sent - went onto the inactive list when they went on maternity leave on the 25th of December.

PN2204

So they were placed on the inactive list?---That is right.

PN2205

All right?---And that is the reason why they were missed from the voting papers.

PN2206

"TO"?---The person "TO" was a casual so would not have been, that - that is on our casual list.

PN2207

All right?---"NJ" was, again, incorrectly classified as an AWA.

PN2208

All right. Okay. Yes?---And "LB" failed to return from maternity leave in September 2002, so was on our inactive list although not an employee or a employee depending on your interpretation.

PN2209

Okay. So in respect of Enrolled Nurses only, is it your evidence that the only people on the inactive list are "TC", "MS", "KH" and "LN"?---That is my understanding.

PN2210

All right. Your understanding, are you certain of that or is that what you've been told?---Well, it is based on the information I have been advised and that is my understanding, yes.

PN2211

Right. Okay. And that is the information that you've been advised by Ms Robinson?---Yes.

PN2212

All right. Okay. I have got no further questions.

PN2213

THE DEPUTY PRESIDENT: Thanks, Mr Kelly.

PN2214

MR BLACKBURN: Yes. Thank you, your Honour.

<RE-EXAMINATION BY MR BLACKBURN [10.39am]

PN2215

MR BLACKBURN: Mr Bradshaw, why are you confident that the information provided to you by Ms Robinson is correct?---Well, we did a number of things. Firstly, we were embarrassed by the error and the - the - we did a number of things to check it. So, we checked our complete list of employees, produced a complete list of employees, identified whether or not they were included in each of the mailing lists that one has associated with the voting process. We - and that was all employees no matter how - all ENs, no matter how tagged, whether they were tagged as an AWA or not and whether they were tagged as inactive or active. That list was then broken up to our - by our various management areas and distributed to them to validate to make sure that there was no one missing, no one on there that was incorrectly tagged. We then - then contacted all our managers in all our country areas and checked with them to validate that there were no ENs working in the areas that we hadn't identified at all and validated that. Then, my understanding is, Ms Robinson actually checked the employee files for those that were tagged as AWAs to confirm whether or not they actually had an AWA or an individual State workplace agreement. And then we checked - in terms of the casual, for example, "NJ" that worked - that didn't work in the voting period, went and validated the dates and times the employee was paid to work for and on that - in that particular one I confirmed this morning with one of our payroll staff, who went and physically checked the file that it was in fact a Silver Chain State workplace agreement. Then that was it, the list was validated and there were no discoveries outside those that are documented here and that is about as comprehensive as we could do. It listed all ENs on our payroll irrespective of how they are flagged.

PN2216

Thank you, your Honour. Nothing further.

PN2217

THE DEPUTY PRESIDENT: Thank you, Mr Bradshaw, you're excused.

PN2218

THE WITNESS: Thank you.

<THE WITNESS WITHDREW [10.43am]

PN2219

MR BLACKBURN: Your Honour, do you have a copy of the submissions dated 7 March, which I have provided to your associate in this matter?

PN2220

THE DEPUTY PRESIDENT: Yes, I do. I assume Mr Kelly has a copy?

PN2221

MR KELLY: That is correct.

PN2222

MR BLACKBURN: Yes, he has now. Your Honour, as appears in the outline, our last set of submissions was filed on 18 February and of course in re-listing the matter, you invited the parties to comment on the decision of Vice President Ross in Grocom, which came down on 12 February. That decision deals with the requirement for informed consent and then subsequently on 21 February, Vice President Ross and two other members, a Full Bench of the Commission, issued a decision in Energy Developments, which your associate provided to us this morning and which we anticipated you would be interested in hearing something about. So I propose to deal firstly with the issues raised by Grocom. Does your Honour have a copy of that decision? I have got copies here.

PN2223

THE DEPUTY PRESIDENT: No, as a matter of fact I don't. If you can provide a copy, I would appreciate it. Thank you.

PN2224

MR BLACKBURN: In Grocom, and there is no particular need to go to it I think, Vice President Ross held that genuine agreement for the purpose of section 170LE of the Act requires employees to be advised of the consequences of their vote in their consent to be informed, but that is something more than is set out in the terms of section 170LK(7) which simply required the employer to take reasonable steps to explain the terms of the certified agreement. This issue, however, is not new. Vice President Ross has raised it on previous occasions and in a working paper that the union submitted in a previous proceeding before you in this matter and as a result, we address this issue of the requirement for informed consent as a component of genuine agreement, in an outline of submissions dated 6 February, paragraphs 24 to 72 and we rely on those submissions again.

PN2225

Now, the first point that we made at paragraphs - which were summarised at paragraphs 42 and 43, those earlier submissions, is that in our view, given the lack of evidence provided by the union to illustrate that any employees were mislead or did not understand what they were agreeing to, because it was the union's contention, which was not supported by the evidence, but it was nonetheless their contention that employees were confused about the agreement being a union, or non-union agreement and didn't understand in that respect.

PN2226

Given the lack of evidence provided by the union, the question of whether genuine agreement for the purpose of section 170LE(a) requires the consent of employers to be informed, and then the further question of what constitutes informed consent was, we said, not one that the Commission in this case needed to determine. The question arguably did arise in relation to those five employees to whom Silver Chain provided inaccurate pay projections, but as we showed on that occasion and have since shown again, even if it is assumed that those five employees all voted and all voted "yes" and would, had they known the true position, all voted and all voted "no", it would still have been a valid majority.

PN2227

So, in our view, the question of informed consent is not one that arises directly, other than perhaps in relation to those five employees, and that continues to be our position. We did, nonetheless, address the issue in paragraphs 44 to 72 of our submission for 6 February and we said - I'm now at paragraph 9 of today's outline - we said that the requirement for genuine agreement in 170LE(a) ought not be used to introduce tests that were inconsistent with the tests that were already in section 170LK and in particular 170LK(7) and 170LT(7) and those sections, of course, only require reasonable steps to explain the terms of that certified agreement.

PN2228

We said, and we say again, that had Parliament intended there to be a requirement for informed consent, it would have been very easy to state that requirement in clear, unambiguous terms. In fact, to quote from the very decision that Vice President Ross referred to in Grocom, that is, the matter of Thompson v Gordon Co, it is a strong thing to read into an Act of Parliament words which are not there. In the absence of clear necessity it is the wrong thing to do. We submit that is exactly what members of the Commission, or at least Vice President Ross and those who follow him, have done in respect to this issue of informed consent.

PN2229

There is no express requirement in the Act for informed consent and in the absence of clear necessity, in our view, it is a wrong thing to do to read into the Act such a requirement, particularly when section 170LK and 170LT are so clear on what, in fact, the employer is required to do. We submitted on 6 February that Parliament had taken a practical approach to the making of agreements and our conclusion was that provided the employer did not coerce employees or engage in some other unlawful activity and provided the employer took reasonable steps to explain the terms of the agreement in ways that were appropriate, then the agreement would be able to be certified.

PN2230

We pointed out that if the Act were to require informed consent as a condition of certification, or alternatively if the Act were to permit an intervener to go behind the vote and inquire into the mental element of approval, which was the phrase used by Vice President Ross in the working paper that he authored, then that would create enormous uncertainty and the agreement making process would come to a halt. And we said that the balance which Parliament had struck was won by simply requiring reasonable steps to explain the terms of an agreement, was one that recognised industrial commercial realities and the Commission shouldn't seek to introduce additional tests.

PN2231

We did recognise, on the other hand, that the word "genuine" in section 170LE(a) couldn't be ignored and had to be accorded some meaning, and we said that it would not be consistent - sorry, it would not be inconsistent with the limited obligation deliberately imposed on employers in section 170LK(7) for the word "genuine" in 170LE(a) to be construed as implying an absence of coercion, undue influence, unconscionable conduct or misrepresentation. And we said that there was an analogy there with the general law, because at common law, an agreement can be set aside if one or other of those grounds is made out, but otherwise the courts would hold parties to their agreements.

PN2232

We said at paragraph 57 of our original submissions, which is reproduced halfway down page 3 of today's outline, that it would be wrong in our view to go further and suggest that the notion of genuine agreement permitted a party seeking to prevent certification in circumstances where all of the other express statutory requirements had been met and there was no misconduct on the part of the employer to go behind the ballot and inquire into the level of understanding of individual employees. We pointed out that it wasn't clear in any event how one could embark on that inquiry, because how would the Commission test the understanding of the employees concerned?

PN2233

Given that genuine agreement is one of the requirements of a valid majority, would the Commission plainly test the level of understanding of those employees who had voted for the agreement? What level of understanding would be sufficient? And so forth. Now, that is what we said on 6 February. In light of the decision in Grocon and perhaps the fact that the matter has therefore arisen again, we have now added to that submission. We point out at paragraph 14 of the outline, that our submissions that we made on 6 February are supported by the decision of his Honour Hayne J, now of the High Court, in Willow Fashions Australia Pty Limited In Liquidation, which was the decision of his Honour when he was on the Supreme Court of Victoria in 1995.

PN2234

I will hand up a copy of that decision and in this decision, his Honour had to consider the issue of informed consent, which he did on page - commencing on page 8 of the judgment, the only case that I have been able to find in which the issue of informed consent has been considered in an employment context. There may be others but this is the only one that came to light. It involved the transfer of two employees from one company to another and on page 8 under the heading of: Informed Consent, his Honour noted that it was submitted on behalf of the appellants that the transfer of the employment requires the consent of the employees.

PN2235

So much might be accepted. It was then submitted that the quality of consent that was required was informed consent in the sense that employees had been told - should have been told but were not and a range of things were then set out. So the proposition was that informed consent was required as a condition of the employees agreeing to a transfer of employment. It was then submitted that the employer owed an obligation to inform its employees of these facts because the employer stood in a fiduciary position to those employees by reason of the unequal bargaining position of the parties. His Honour then notes, however, that:

PN2236

Other than some brief references to general propositions set out in cases such as Hospital Products Limited and United States Surgical ...(reads)... accurately, that a failure to supply information of the kind which the appellants now say should have been given to them -

PN2237

the appellants were the employees -

PN2238

means that contracts of employment may later be disclaimed by the employers concerned.

PN2239

His Honour then notes that:

PN2240

Of course in some respects there are fiduciary obligations found in the relationship between employer and employee, duties of ...(reads)... the contract may, at any time in the future be said by the worker not to be binding.

PN2241

His Honour then says:

PN2242

For a number of reasons, I consider that no such obligation exists.

PN2243

He then sets out a number of considerations which, in our submission, are the sorts of considerations that this Commission should be turning its mind to before coming to a conclusion that informed consent is a requirement. Firstly his Honour says:

PN2244

What is its content? What is the information which either the present employer or the intending employer should impart ...(reads)... sufficient to constitute a concluded contract. Here it is not shown that they did not.

PN2245

So his Honour is saying that all that is required is an assent which is sufficient to constitute a concluded contract at common law. That is consent in the absence of duress and undue influence and misrepresentation, coercion and so forth. It is not correct to say that informed consent is required in such a case for a range of reasons. What would be the content of the informed consent, what would be the consequences of such an obligation and so forth. Those comments, we say, are equally apposite in the present case, particularly when one has regard to the various decisions, most of those being decisions of single members, most of which have done no more than simply cite the decision in Toys R Us, which did no more than in one paragraph say, under a different statutory regime, that informed consent was a requirement of genuine agreement.

PN2246

So no reasoning in any of those decisions. No Commissioner has considered the consequences of holding that informed consent is required and what we are now getting, as occurred in Grocom, is the Commission now saying: well, informed consent is an element of genuine agreement. On this occasion we didn't tell them this and therefore there was no informed consent. On another occasion it would be something else you didn't tell them and there would be no informed consent.

PN2247

THE DEPUTY PRESIDENT: But doesn't Grocom really say: well, the consent wasn't informed because there was inadequate disclosure and it is really that inadequate disclosure that invalidates the agreement? Isn't that really what it gets at?

PN2248

MR BLACKBURN: Yes, but the disclosure in that case didn't actually go to the terms of the agreement that the employees were being offered. The disclosure in that case was the failure to disclose, the thing that was not disclosed was the fact that other employees had been offered different agreements and there was the possibility that the other employees might have voted down their agreements and these two employees would have voted their agreement up and therefore would have been the only employees on those conditions.

PN2249

Now, all the Act requires is that the employer take reasonable steps to inform the - to explain to the employees the terms of the agreement that has been offered to them and presumably that was done. But there is no criticism in the judgment to say that wasn't done, but the criticism is that the employees weren't informed that other employees had been offered other agreements and this was all under the umbrella of the need to provide - the need to have informed consent. So Vice President Ross, in our submission, has sought to import into the words of this Act an obligation to explain not only the terms of an agreement but also the effect and the consequences of an agreement.

PN2250

Once you start doing that, you start going into a whole range of possible issues which may need to be explained in certain circumstances. Now, in our submissions in reply on 6 February, we addressed the working paper that was authored by Vice President Ross and John True QC and we pointed out that the statements made in the working paper were supported by very limited authority. The only Commission decisions cited in the paper were single member decisions, none of which contained any detailed consideration of the issue and all of which had been content to reproduce the same passage from his Honour's own decision in Toys R Us.

PN2251

So it is almost that simply by saying it is so and without any actual consideration of the argument, the Commission is arriving at a position where it is almost becoming accepted wisdom, if you like, that informed consent is a requirement of genuine agreement, yet nowhere can you find any considered discussion of what is meant by informed consent, how the Commission will determine what is informed consent and so forth. Now, the other problem with all of these decisions tracing back to Toys R Us, and they all do, is that Toys R Us was concerned with the approval of an enterprise flexibility agreement under the former Act. We have set out at paragraph 19 of the outline the provisions of the former Act and I will also hand up, your Honour, a copy of the provisions. I think I may have handed up a copy of 170NC previously. Does your Honour wish to mark this at all?

PN2252

THE DEPUTY PRESIDENT: No, it is not necessary.

PN2253

MR BLACKBURN: Thank you. And there are two relevant sections. There is 170NC(1)(h), which deals with enterprise flexibility agreements and there is a corresponding provision, 170MC(1)(f), which deals with the making of certified agreements under the former Act, and both are in materially the same terms, except one refers to approval of a EFA and the other refers to the certification of an agreement. And looking at paragraph 19 of the outline, what the Act said was that the employer was required to take reasonable steps firstly to inform the employees about the terms of the agreement, which is the requirement in 170LK(7) and to explain to those employees the effect of those terms, which is not in the current Act, and down at paragraph - at placita 4 - to inform those employees of the intention to apply to the Commission to approve implementation of the agreement and about the consequences of approval.

PN2254

So there is an express requirement in both the enterprise flexibility agreement provisions and the certified agreement provisions in the former Act for the employer to explain not only the terms but also the effect of those terms and the consequences of approving the agreement. So under that statutory regime, we would have no argument with his Honour's assertion that employees must have explained to them the effect and the consequences of their entering into an agreement. But as we point out at paragraph 21, the only such requirement in the Act is that in section 170LK(7) which requires the employer to ensure the terms of the agreement are explained.

PN2255

There is no provision requiring the employer to explain the effect or consequences of certification. We say at paragraph 23 that in interpreting the statute, it is permissible to have regard to prior statutory provisions dealing with the same subject matter and we rely for that proposition on Statutory Interpretation in Australia, Pearce and Geddes, 5th Edition, at paragraph 320 and 330 to 331. As was pointed out by the authors at paragraph 328:

PN2256

The good sense of this approach is obvious. If one views the whole scheme of the legislation, it may be possible to see the way in ...(reads)... and so on, and such information is likely to be adduced to a court in its endeavour to understand the legislature's wishes.

PN2257

I should add that in none of the decisions has there been any express acknowledgment of the difference in the wording between the former Act and the current Act. It has simply been ignored and reliance has been placed on the decision in Toys R Us, which was a decision under the former Act. At paragraph 24 we also refer to that part of Pearce and Geddes in which they refer to a passage in Bridge and Mattis, a decision of the New South Wales Arbitration Commission, which in turn approved a statement in Crays on Statute Laws, which went to the effect that when we see acts empowering material by the very same legislature, words added to those used in a prior enactment, it would be setting at naught the clear intention of the legislature to give the later enactment the construction judicially placed on the earlier enactment.

PN2258

To do so would be to read out of the statute expressions which must have been held to have been deliberately inserted to make the new Act differ from the old, and the authors point out that the Commission added:

PN2259

This statement was equally applicable to an amendment to a statute, whether by way of addition, alteration or withdrawing of words.

PN2260

So in other words, some recognition needs to be afforded to the fact that the current Act is insignificantly different terms to the former Act. Returning then to Vice President Ross' and John True QC's working paper. We submitted at paragraph 72 of our submissions on 6 February that until the matter was authoratively decided by a Full Bench, the Commission should exercise caution less the dununciated test which the Parliament did not see fit to include, which was contrary to the terms of section 170LK(7), which could prove impossible to imply. In fact, though we weren't aware of it at the time we made that submission, and surprisingly it wasn't averted to in the working paper, one Full Bench in Coles Supermarket Australia Pty Ltd v The SDA, has said that:

PN2261

Genuine improvement implies that the consent of the employee was informed. That they were advised of the consequences of giving their approval to the agreement.

PN2262

And I hand up a copy of that decision your Honour. The presiding member on this occasion was Vice President Ross. The observation is made at paragraph 20 of the decision where, if one goes to paragraph 20 one can see the full extent of the reasoning. There is simply a statement that genuine approval implies that the consent of the employees was informed and that they were advised of the consequences of giving their approval. There is no discussion of what constitutes informed consent or of the different statutory regime that now exists.

PN2263

The authority referred to in the footnote, footnote 5 is VH Trading Company - VHA Trading Company v ASU, print N9390. That decision was a decision of Vice President Ross and again in that decision, which I will hand up for anyone who wishes to refer to it, there was similarly no detailed consideration of the issue and once again there was simply a reference to his Honour's decision in Toys R Us. Your Honour, in those circumstances we say that it is set in law that in the Commission there is no doctrine of binding precedent, though it is conceded that in the normal course a single member would be expected to follow guidelines set down by a Full Bench and we would refer to Clarkson's case for those propositions.

PN2264

What we say is, given the - and we say this respectfully, but given the paucity of reasoning in both the Coles Full Bench case and the Grocon case, including, but not limited to a failure to address the differences between section 170LK(7) of the current Act and sections 170NCH(1)(h) and 170MC(1)(f) of the former Act. The failure to address what is meant by informed consent; a failure to consider the consequences of holding the genuine agreement requires informed consent; and the justification for reading such a requirement into the Act, bearing in mind the words, which in fact were cited by Vice President Ross, in Grocom from the decision in Thompson and Gordon Co, that it is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is the wrong thing to do. So for those reasons we submit that the decision - the full bench decision in Coles and Vice President Ross' decision in Grocon should not be followed.In any event, as stated, we also reiterate our primary submission on the question of informed consent which is, given the lack of evidence provided by the union to illustrate that employees were misled or didn't understand what they were agreeing to, the question of whether genuine agreement requires the consent of employees to be informed and what constitutes informed consent is not one that the Commission in this case necessarily need determine. We do concede that the issue may arise in respect of five employees who were provided with information that was incorrect. What we say about that is that the votes of those five employees could not affected the ballot in any event.

PN2265

And for that reason we say that the issue of informed consent is not one that is or need be determinative of these proceedings. But in any event, we say that the Commission ought find that there is no requirement for informed consent and that the employer is required to do no more than take reasonable steps to comply with section 170LK(7) of the Act.

PN2266

THE DEPUTY PRESIDENT: On that point of the information to those five, Mr Blackburn, what are you saying? That the steps were reasonable, notwithstanding that the information was wrong?

PN2267

MR BLACKBURN: Yes. We are saying two things. Firstly, that the steps were reasonable notwithstanding that the information was wrong. And, secondly, we say that - and this then goes to our next point which is the mandatory nature of 170LK and those provisions of the Act. Because we will argue that notwithstanding the decision in Energy Developments, the provisions of the Act, the relevant provisions of the Act, ought not to be construed in such a way that any breach automatically invalidates an agreement or an application for certification. And if that is accepted, then if it is the case that five employees were misled and, therefore, did not or could not have provided genuine agreement, then that would not upset the ballot in any event. Because - - -

PN2268

THE DEPUTY PRESIDENT: Just leaving aside the ballot for the moment. In the issue of the inaccuracy of the information, I just wonder whether there is a consideration that I need to make of the reason that it was inaccurate and the extent and degree of the inaccuracy.

PN2269

MR BLACKBURN: Yes. We are taking it from a worse case position. Because, yes, we certainly do contend that one would need to consider the extent of the inaccuracy and the reasons for the inaccuracy. But even if it is found that those employees had been misled to a significant way, then we say, well, the next question is, what effect did that have? Does that, of itself, deny a valid majority?

PN2270

THE DEPUTY PRESIDENT: Even if it was deliberate misleading?

PN2271

MR BLACKBURN: No, we wouldn't go that far. We wouldn't go that far because - well, fortunately, we don't have to answer that. Because the question doesn't arise in this case. We simply say that if those employees were inadvertently misled, then it ought not and doesn't enable you to deny a valid majority. In the same way as the inadvertent exclusion of some employees from the ballot, in our view, doesn't deny a valid majority, notwithstanding the decision in Energy Developments. And we will come to that. So, we think it can be dealt with in the same vein in that they are both, if you like, breaches of the terms of the Act, although the question of misleading information is only a breach if it is found the employer failed to take reasonable steps.

PN2272

If it is found the employer failed to take reasonable steps, then there is a breach. But we say in that case the question is, well, does that breach automatically invalidate the application? What is the effect of that breach? Are the requirements of section 170LK mandatory? Which takes us on to the next issue. But obviously in the first instance there would be the question of whether the employer had, in fact, met its obligations under 170LK(7) by taking reasonable steps to provide the information. Bearing in mind, of course, that the employer was under no obligation to provide that level of information at all but did so in an effort to assist the employees concerned.

PN2273

Because nothing in the Act requires the employer to provide payroll calculations over any period. Let alone over 16 weeks, in this case. Your Honour, the next issue is this issue of whether section 170LK, to use the old language, is mandatory. And clearly in Energy Developments, the Full Bench held that a failure to give some employees whose employment would be subject to an agreement the opportunity to vote invalidated the agreement, regardless of whether the excluded employees would have affected the result of the ballot. And in arriving at this conclusion the Full Bench relied on the earlier Full Bench decision in Mobile Food Vans for the proposition that the requirement of section 170LK is mandatory.

PN2274

Does your Honour have a copy of that decision, Energy Developments?

PN2275

THE DEPUTY PRESIDENT: Energy Developments? Yes, I do.

PN2276

MR BLACKBURN: I take your Honour to the relevant part of the decision. At paragraph 21 the Full Bench states simply that:

PN2277

The requirements of section 170LK are mandatory. This is apparent from the language used in the section and its statutory content.

PN2278

Which is probably meant context. And then the Full Bench cites Mobile Food Vans and several passages from that decision. And then at paragraph 25 the Full Bench says:

PN2279

The requirements of section 170LK(1) and 170LE have not been met. Whether the inclusion of the excluded employees would ...(reads)... requirements in section 170LK are mandatory are must be met in accordance with their terms.

PN2280

And it is then said that:

PN2281

This position may be contrasted with that pertaining to election inquiries under the Workplace Relations Act. Pursuant ...(reads)... to the agreement that a valid majority of employees make the agreement.

PN2282

And if we take the last point first in that the Full Bench contrasted the position with that pertaining election inquiries under the Act. It may equally be said that it is precisely because there are no provisions in the Act governing ballots for the making or approval of certified agreements that regard should be had to the common law of elections. Section 170LE(a) is very sparse when it comes to setting out the requirements for a vote. Basically there are none, other than you need a valid majority, which is defined 50 per cent plus one of those who vote. There are no requirements for a secret ballot. There are no requirements in relation to the appointment of returning officers.

PN2283

There are no requirements dealing with the criteria for determining the validity or otherwise of ballots. It is simply said that if the decision is made by vote, then a majority of the persons who cast a valid vote decide or generally decide that they want to make the agreement. And in those circumstances where the Act is silent, we say the common law comes to the fore. That is what occurred in Bridge v Bowen, the High Court judgment that we referred to at paragraph 50 of decisions of 18 February where we discuss this issue in some detail. And Bridge v Bowen, Griffiths CJ considered what the legal consequences would be of an omission in an electoral statute to deal with a particular event relating to an election and his Honour held that the real question in such a case was what does the common law prescribe as a consequence of such an event?

PN2284

And that is found at [1916] HCA 38; 1916, 21 CLR, 582 at page 587. So, his Honour said:

PN2285

Where the statute is silent on a particular event relating to an election, then the question is, what does the common law provide?

PN2286

As we said there at paragraph 36 of the outline, the fact that the Act contains comprehensive provisions dealing with the election of union officials, and those run from sections 210 and 226, and that those provisions may have been taken to have replaced the common law by necessary implication doesn't lead to the conclusion that the common law has been excluded in relation to ballots for the making or approval of certified agreements. On the contrary, in our view, it would lead to the conclusion that the common law was to prevail and that there was a common law that was going to fill in the gaps. Now, as to the other requirement or the other line of argument in Energy Developments, which is the reliance on Mobile Food Vans.

PN2287

We address the decision in Mobile Food Vans in our submissions at 18 February at paragraphs 20 to 49 and we submitted on that occasion that the Full Bench had erred in considering whether it was the purpose of the Act that something done in breach at section 170LK should be invalid. We said:

PN2288

The Full Bench had erred by failing to have regard to a critical factor. Namely, the consequences which will flow from holding ...(reads)... requirements in section 170LK may impose different obligations, some of which are mandatory and some of which directory.

PN2289

Your Honour, the requirement for - - -

PN2290

THE DEPUTY PRESIDENT: Just on that point, the Mobile Food Vans decision, it appears that what happened that they considered the compliance with 170LK in the consideration arising out of 170LT. That doesn't appear to be the case in Energy Developments. And I just wonder whether you have any comment, Mr Blackburn, on the words that are used in Mobile Food Vans of the rendering of an application invalid as against an invalid application. Is there any inference there?

PN2291

MR BLACKBURN: Your Honour, one point that we haven't considered or we haven't discussed in our outline is the view which appears to be gathering force amongst several Full Benches of the Commission, that once an agreement is found to have breached the provisions of the Act, then it is invalid, and then there is no valid application. And that is the sort of argument that Vice President Ross adhered to in Grocon when he allowed the union the right of intervention on the basis, well, it wasn't a 170LJ agreement after all, because it wasn't, in fact, anything.

PN2292

So, we have not addressed it, but we do note that it appears to be the view of a couple of recent Full Benches and of individual members of the Commission that a failure to meet those requirements will render the application invalid, so that there is no proper application before the Commission, although, having said that, there are earlier Full Bench decisions which didn't seem to take that view. So, it seems to be a recent - - -

PN2293

THE DEPUTY PRESIDENT: Yes. But what I am asking is in Mobile Food Vans is that the use of the word "render" in the context of 170LT rather than 170LK. That is what I am asking.

PN2294

MR BLACKBURN: I see. No, nothing immediately springs to mind arising from that, your Honour. I haven't considered it. If anything comes to mind during the course of today, I will offer it up.

PN2295

THE DEPUTY PRESIDENT: Because what I am, I guess, considering is, well, did Mobile Food Vans in effect infer that there was a one step approach as against Energy Development, that states there is a two step approach.

PN2296

MR BLACKBURN: Yes, I recall the reference in Energy Developments to another decision of the Full Bench which, unfortunately, your Honour, I have not gone to. It is Pavel v The Commission. And I have not gone to that to, sort of, consider that point. So, unfortunately, I am not able to assist you at the moment.

PN2297

THE DEPUTY PRESIDENT: Thank you.

PN2298

MR BLACKBURN: The point that we do make, your Honour, though is that in paragraph 31 of Mobile Food Vans the Commission considered the factors or set out the factors that it had had regard to in determining whether section 170LK was mandatory. And it said that:

PN2299

We consider that having regard to the objects of the Act and the language used in sections 170LH and 170LK, there is a ...(reads)... effective agreement making. And failure to meet of them will render an application for certification invalid.

PN2300

Well, the problem that we pointed out there is that there is no reference to the requirement to consider the consequences of such an interpretation and nor were those consequences considered. And I hand up the decision of the High Court in Project Blue Sky v Australian Broadcasting Authority which, unfortunately, is not the CLR decision. But at paragraph 91 on page 36 the majority say - - -

PN2301

THE DEPUTY PRESIDENT: Unfortunately, I have got page 36. It looks like the one page missing on the copy you have handed up, Mrs Blackburn. I go from 30 - - -

PN2302

MR KELLY: I think the photocopies only have the odd numbers in them.

PN2303

THE DEPUTY PRESIDENT: The odd numbers?

PN2304

MR BLACKBURN: Okay. Well, my apologies, your Honour. Perhaps what I will do is I will read paragraph 91, then hand up the only good copy. At paragraph 91, the majority of the Court says:

PN2305

An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid as of no effect. Whether ...(reads)... consequences for the parties of holding void every act done in breach of the condition.

PN2306

If I hand up a copy of that, your Honour, and I undertake to provide Mr Kelly with one should he require it.

PN2307

THE DEPUTY PRESIDENT: Thank you.

PN2308

MR BLACKBURN: And we also, in our earlier submissions, referred to Pearce & Geddes, paragraph 21 to 26 of our submissions of 18 February, and also the New South Wales Court of Appeal decision in Tasker v Fullwood, to emphasise the importance that courts are placed on considering the consequences of a particular interpretation when determining whether a particular provisions was intended to be mandatory or directory, for want of a better phrase. And we submitted then and we maintain that Parliament could not have intended that a failure to comply strictly with the requirements of section 170LE(c) and 170LK would automatically invalidate an application for certification regardless of the extent of that failure.

PN2309

We pointed to the fact that certified agreements commonly cover large numbers of employees. And Parliament could not intended that a ballot of hundreds or even thousands of employees, to take the example of the Commonwealth Bank, which has 28,000 employees, should be upset simply because one employee was inadvertently omitted from the ballot process when one that one employee's vote could not have altered the outcome. But that is consequence by following that 170LK is mandatory. If you hold, as Energy Developments did, that regardless of whether it would affected the outcome of the ballot, any failure to provide any employee with an opportunity to vote renders the whole process void and that is the consequence.

PN2310

A ballot of many thousands of employees could be defeated regardless of the extent of the vote in favour of the agreement to be made simply because one employee had not been given the opportunity to vote. And that also has to be considered in the context of the Act and the lack of clarity in the Act on the question of who exactly is entitled to vote. There have been Commission decisions, for example, on the question of casuals and which casuals are entitled to vote and which are not. But even leaving that aside, it is simply absurd, in our view, to suggest that Parliament could have intended such a result.

PN2311

And apart from pointing to the absurdity of such a result, we also pointed to the objects of the Act in sections 170L and 170LA(1) which promote the making of agreements and require the Commission to perform its function in the way that will facilitate the making of agreements. Now, the Full Bench in Mobile Food Vans went to the objects of the Act and said, "Well, look, the objects of the Act include fair and effective agreement making." But it is not necessary to take such a strict approach in order to guarantee fair and effective agreement making. Presumably, if the Commission allows itself some discretion in deciding when the requirements of the Act have been met and when they haven't been, and when there is a sufficient compliance with the provisions of the Act, then fair and effective agreement making is not only guaranteed, it is actually promoted.

PN2312

We also pointed to section 98A which requires the Commission to perform its functions in a way that avoids unnecessary technicalities and facilitates the fair and practical conduct of proceedings under the Act. We said at paragraphs 46 to 49 of our submissions of 18 February that:

PN2313

Having regard to the objects of the Act in sections 170LA(1) and 98A, the intention which may fairly be imputed to Parliament, ...(reads)... happened, there is a real rather than a remote possibility that the result of the vote may have been affected.

PN2314

And we said:

PN2315

That construction avoids the inconvenience and injustice that would flow from applications to certify being set aside because of ...(reads)... that the result of the vote may have been affected, the vote and the application for certification will be set aside.

PN2316

And we say:

PN2317

It is a construction that allows the Commission to perform its functions in a way that avoids unnecessary technicalities yet ...(reads)... common law of elections but also various electoral Acts where Parliament has, in fact, legislated on the matter.

PN2318

Your Honour, the next thing that we put today on this question goes to the admissibility of extrinsic materials. And section 15AB of the Acts Interpretations Act. I will hand up a copy of section AB, the relevant part of which is reproduced in the footnote on page 10. And basically the effect of section 15AB(1) for present purpose is that where a Court concludes that the ordinary meaning of a provision, taking into account is context in the Act and the purpose of object underlying the Act, leads to a result that is manifestly absurd or unreasonable, the Court may have regard to extrinsic material for the purpose of determining the meaning of a provision. Not simply to confirm that the meaning of the provision is the ordinary meaning.

PN2319

No. But to determine the meaning of the provision. Now, in this case we submit that if, as was held in Mobile Food Vans and Energy Developments, the ordinary meaning conveyed by the language of sections 170LH and section 170LK having regard to their context and the objects of the Act, leads to the conclusion that any breach of 170LK will render an application for certification, then regard may be had to extrinsic materials because the ordinary meaning leads to a result that is manifestly absurd or unreasonable.

PN2320

And as we said, the absurdity of unreasonableness becomes apparent once it is recognised that the agreement made or approved in the ballot of several thousand employees across several States may be invalided by one employee inadvertently being denied the opportunity to vote, regardless of whether the excluded employee's vote could have affected the outcome. Now, as is set out in 15AB(3)(e) of the Acts Interpretation Act:

PN2321

The extrinsic materials to which regard may be made includes an explanatory memorandum relating to the Bill containing the ...(reads)... Enactment Bill was the agreement between the Commonwealth Government and the Australian Democrats.

PN2322

I will hand up a copy of an extract from that agreement.

PN2323

THE DEPUTY PRESIDENT: I will mark that, Mr Blackburn.

EXHIBIT #A30 EXTRACT FROM AGREEMENT

PN2324

MR BLACKBURN: I have enclosed the covering letter signed by the Honourable Peter Reith and Senator Cheryl Kernow. And - - -

PN2325

THE DEPUTY PRESIDENT: Well, again, I think we have got odd pages. I have got the - - -

PN2326

MR BLACKBURN: This time it may be intended, hopefully. Have you got pages - - -

PN2327

THE DEPUTY PRESIDENT: I have got the second page of a letter.

PN2328

MR BLACKBURN: Second page of a letter?

PN2329

THE DEPUTY PRESIDENT: Yes.

PN2330

MR KELLY: But not the first.

PN2331

THE DEPUTY PRESIDENT: Perhaps you can provide it, I will mark it later.

PN2332

MR BLACKBURN: Yes. I think, your Honour, that may just be - - -

PN2333

THE DEPUTY PRESIDENT: It doesn't look like - if it's only the one page, it is not a letter. It looks like just a statement with two signatures.

PN2334

MR BLACKBURN: Preamble. Yes, that does appear to be the whole of the - - -

PN2335

THE DEPUTY PRESIDENT: So, it is not actually a letter. It looks like it was part of the agreed position.

PN2336

MR BLACKBURN: Yes.

PN2337

THE DEPUTY PRESIDENT: This was laid before the House, was it?

PN2338

MR BLACKBURN: Yes. And it has been referred to, I think, in previous decisions of the Federal Court and, I think, of this Commission.

PN2339

THE DEPUTY PRESIDENT: Yes. Although one decision of this Commission they were disinclined to rely on this agreement. A five person Full Bench. Award simplification matter, Mr Blackburn. Print Q9399.

PN2340

MR BLACKBURN: That is the Hospitality case, is it, your Honour?

PN2341

THE DEPUTY PRESIDENT: Yes.

PN2342

MR BLACKBURN: Thank you.

PN2343

THE DEPUTY PRESIDENT: I think so.

PN2344

MR BLACKBURN: Your Honour, at paragraph 3.29 which is part of the summary of the agreed position, the authors say that the Commission will - under the heading: Consultation Agreement and Coverage Requirements:

PN2345

Will also be required to satisfy itself that employees have been provided with the proposed agreement or ready access to it at least 14 days before an approval was given.

PN2346

And that the agreement had been explained to employees.

PN2347

In the case of agreements being made directly with employees notice of the intention ...(reads)... that a reasonable opportunity had been provided to any unions complying with such requests.

PN2348

And next:

PN2349

A valid majority of the employees genuinely made or approved the agreement.

PN2350

The next part is interesting in light of our previous discussion on the question of informed consent because it then said:

PN2351

In this context the AIRC would take into account whether relevant employees had had the agreement explained to them in ways which were appropriate to their particular circumstances and needs.

PN2352

So there is no mention of a requirement for informed consent there and if anything there is some clarification of what is made by - what is meant by employees genuinely making or approving the agreement. And then finally:

PN2353

As at present the agreement contain dispute settling procedures and nominal expiry date and did not discriminate in the grounds specified.

PN2354

Thereon:

PN2355

It will immediately be apparent that the majority of those requirements subsequently ...(reads)... except for sections 170LK(6) and 170LK(8) are referred to.

PN2356

What is significant is the next paragraph, because at paragraph 3.30 the authors say:

PN2357

Rather than refusing to certify an agreement which did not satisfy it in one these respects the Commission can offer the parties the opportunity to amend the agreement or to make an undertaking concerning its operation.

PN2358

In other words, it is very clearly not the view of the authors that any breach of those provisions in section 170LK will automatically invalidate the application for certification. Because they are saying: look, rather than refusing to certify agreement the Commission can do this or the Commission can do that. What Mobile Food Vans and Energy Development are saying is: look, as soon as you breach any of those provisions you are out regardless of the significance of these provisions the section is intended to be mandatory and that is the end of that.

PN2359

THE DEPUTY PRESIDENT: Yes, but can I use this agreement as appropriate extrinsic material?

PN2360

MR BLACKBURN: Well, we certainly believe you can. It falls within - in our view, it falls precisely within the - - -

PN2361

THE DEPUTY PRESIDENT: You see, that agreement, my recollection also identifies what is supposed to happen with designation of awards. And when the designation is supposed to occur although the explanatory memorandum doesn't.

PN2362

MR BLACKBURN: What did it say about that, your Honour?

PN2363

THE DEPUTY PRESIDENT: Well, my reading of it says it happens after the no disadvantage test or during the no disadvantage test. And if that doesn't get up then the public interest test is applied but my reading of it at least seems to say that you don't designate before you've got an agreement.

PN2364

MR BLACKBURN: Yes. Unfortunately, your Honour, I didn't quite read that far into it. But what we do say is the present - - -

PN2365

THE DEPUTY PRESIDENT: It sort of makes it a bit difficult to rely on that explanatory - on the agreement if in this very matter or very closely aligned matter, a Full Bench is not inclined to rely on it.

PN2366

MR BLACKBURN: Well, your Honour, there are two issues there.

PN2367

THE DEPUTY PRESIDENT: I might add that I think there was a difference between the explanatory memorandum which didn't appear to reflect what this agreement reflected.

PN2368

MR BLACKBURN: Yes.

PN2369

THE DEPUTY PRESIDENT: But it makes it difficult to rely on the memorandum nevertheless, doesn't it?

PN2370

MR BLACKBURN: No, with any explanatory memorandum there is the potential for the bill to be amended. So it is a question of judgment as to what and how much reliance can be had on any part of the explanatory memorandum. One doesn't through the whole document out simply because part of it is no longer relevant because the bill - the Act in the end was clearly different from the bill that was proposed. So it doesn't mean that one then throws the rest of the document.

PN2371

THE DEPUTY PRESIDENT: Yes, but it appears to be at least in the designation a change from the memorandum to the explanatory memorandum. There may then be a change in other circumstances between the explanatory memorandum and what eventuates in the bill. So it is sort of two steps removed, isn't it?

PN2372

MR BLACKBURN: It is nonetheless, your Honour, a document that fall squarely with the section of the Acts Interpretation Act as a document that you are able to have regard to and in addition the preamble to section - - -

PN2373

THE DEPUTY PRESIDENT: Although a Full Bench has found circumstances, different circumstances that - - -

PN2374

MR BLACKBURN: In the hospitality case?

PN2375

THE DEPUTY PRESIDENT: Yes. It was not appropriate.

PN2376

MR BLACKBURN: Well if I may I will consider that as soon as I get the opportunity and see what was said and the context in which it was said and respond, your Honour. Before leaving this document though I also would take you to paragraph 3.33 and 3.34 of the agreed summary which was in similar terms and that paragraph 3.33 said:

PN2377

The proposed section 170LK of the bill which deals with agreements made directly ...(reads)... or to withdraw such a request made to an organisation to represent the employee.

PN2378

Now those provisions subsequently found expression in section 170NC and not 170LK, but the point we draw from the following paragraph 3.34 is that the parties were prepared to say that:

PN2379

A breach of this provision could result in an agreement not being certified or the Commission requiring the employee to give undertakings or take any action that may be necessary to make the agreement certifiable.

PN2380

So there again there is no intention on behalf of the parties to frame these provisions of the Act in such a way as to make them - or in such a way that any failure to comply with them will invalidate an agreement. The intention of the parties is gleaned from this document, is that notwithstanding that there might have been a breach of section 170LK, the agreement could nonetheless be certified if certain things were done. Your Honour, we submit that for those reasons, in particular the failure in Mobile Food Vans to have regard to the consequences of holding 170LK to be mandatory and to the absurd and unreasonable results which could flow from holding and which will flow from holding 170LK to be mandatory, that it must be presumed that Parliament could not have intended that outcome. And accordingly that the approach taken in Mobile Food Vans and Energy Developments in our view should not be followed.

PN2381

Instead we submit that paragraph 60 of our outline: the Commission should have regard to the objects of the Act in sections 170LA(i) and 98A, the vote should only be set aside because of voting irregularities if having regard to the irregularities found in any circumstances giving rise to a likelihood that similar irregularities may have happened, there is a real possibility that the result of the vote may have been affected. Your Honour, in our view subject to some short remarks that I will make in relation to the written response provided by the union.

PN2382

At the end of the day we see this matter as coming down to basically one question. And that is are the requirements of the Act relating to certification of agreements mandatory in the sense that any failure to comply will render an application for certification invalid or not.

PN2383

THE DEPUTY PRESIDENT: Were there is two questions in my mind at the moment, or an additional question anyway. I might have more questions than two but an additional one, and that is, when is that consideration made? Is it made in one step or is it made in two steps? Does LK sit in as a pre-cursor to LT or does LK get considered in Division 4. Does 170LT(6) tie in LK to identify a consideration in LT or doesn't it?

PN2384

MR BLACKBURN: Well, it does appear that section 170LK is considered in Division 4 as part of 170LT.

PN2385

THE DEPUTY PRESIDENT: That is not what Energy Developments found.

PN2386

MR BLACKBURN: Yes. I didn't sort of appreciate the nuance there or - - -

PN2387

THE DEPUTY PRESIDENT: Well, what it does is potentially make the availability of 170LV questionable if it is a two step approach, potentially anyway. But that is what is exercising my mind.

PN2388

MR BLACKBURN: Yes, I now see, your Honour, yes. Yes, your Honour is right because if it is a one step approach then you never get to 170LT. You have no valid application in front of you.

PN2389

THE DEPUTY PRESIDENT: Yes.

PN2390

MR BLACKBURN: Yes.

PN2391

THE DEPUTY PRESIDENT: And where does that leave 135(ii)(a)?

PN2392

MR BLACKBURN: Yes. Your Honour is absolutely right, in our submission, yes.

PN2393

THE DEPUTY PRESIDENT: Well, I don't know that I am, I'm asking the question.

PN2394

MR BLACKBURN: Well, no, we had not appreciated 135(ii)(a) but it does seem to be the case that - - -

PN2395

THE DEPUTY PRESIDENT: Well, for example in this matter if I am not satisfied, and it is something you might address as well, Mr Kelly. If I am not satisfied that the ballot was - arrived at an agreement, a genuine consent, genuine approval for that agreement with the employees that were entitled to vote. If it is an invalid application taking Energy Developments, then can utilise 135(ii)(a) for the purpose of satisfying myself of those issues?

PN2396

MR BLACKBURN: Well, it would seem, your Honour, that it couldn't on that basis be an invalid application otherwise you would never, as you point out, you would never get to 130(ii)(a) you would never get to 170LT or 170LV, if you take that view that anything - any breach of 170LK automatically nullifies the application which obviously we would adopt and rely up in support for the proposition that a breach of 170LK doesn't automatically invalidate the application in the manner suggested.

PN2397

THE DEPUTY PRESIDENT: That is why I asked the question earlier of the approach in Mobile Foods, whether they were considering LK at the time contemporaneously with considering LT which is when most of these things occurred. And whether they took a view of an invalid application rendered invalid at the time of the consideration in LT rather than before it gets there.

PN2398

MR BLACKBURN: It is not apparent, your Honour.

PN2399

THE DEPUTY PRESIDENT: All of which, I suppose, illustrates the point, if an object of the Act is to facilitate agreement and certification the Act itself doesn't really help.

PN2400

MR BLACKBURN: Well, that is also part of the point we are making in respect of the failure to clearly identify who is entitled to vote and who is not and what for that matter you do with new employees who come on during the valid period and so forth. But it is not apparent it seems to us from Mobile Food Vans, whether the Full Bench was purporting to act under 170LT or not.

PN2401

THE DEPUTY PRESIDENT: Yes. Well, Mr Blackburn, coming to the issue of 135(ii)(a). If I'm not satisfied that the requirements of genuine approval and those entitled to vote are given the ability such to give a valid majority, do you have a view on the utilisation of 135(ii)(a) or do you need to seek instructions on that?

PN2402

MR BLACKBURN: I would need to seek instructions, your Honour.

PN2403

THE DEPUTY PRESIDENT: Well, if you can provide me with written advice on that.

PN2404

MR BLACKBURN: Yes, I certainly will. Your Honour, the last few matters to which I go are simply in response to the union's written submissions filed on 24 February. And we have simply set out there a number of points going directly to the paragraphs in the union's submissions. We point out that at a couple of places the union has, not I'm sure with any intention to mislead, but they appear to have double counted, if you like. Paragraph 8A for example of their submission of 24 February they say there is at least five employees and possibly seven who are eligible to vote but weren't given the opportunity.

PN2405

And paragraph B they say there are at least ten but possibly twelve who were either given no information about the agreement or given misleading information. And the juxtaposition of those paragraphs suggest almost that there is five that had this problem and there is another ten that had some other problem. And in fact as we point out at paragraph 62, the reference in paragraph 8B to the total of ten but possible twelve employees who were given no information includes the five but possibly seven employees referred to in paragraph 8A, being the employees who were not given the opportunity of a vote. It is the same employees, the same employees were denied a ballot and the same employees were not sent the information back and the same employees were not sent the voting materials.

PN2406

So we just alert the Commission to the fact that the way the union has in several places throughout its submissions, juxtaposed some of its submissions suggests perhaps that there are more employees who if you like were aggrieved than is the case. And we submit that the true position is that five employees were given misleading information or incorrect information and five employees who were eligible to vote were denied the opportunity of doing so. Four of those were also not given information about the agreement. So we say the total number of aggrieved employees if you like, is therefore ten and that was the figure that we used in demonstrating in our earlier submissions of 18 February that there was no real or distinct possibility of the ballot being affected.

PN2407

We concede, in fact we almost made the concession of 18 February but I agree that we were a bit vague on the point, we concede that the employee TO was entitled to vote and this employee was included in the ten to which we've referred. At paragraph 20 of the union's submissions, the union asserts that the employee, NJ, who was the casual referred to by Mr Bradshaw earlier today, was entitled to vote because she was a person with a reasonable expectation of working under the agreement. We point out the requirement in section 170LK(i) is that:

PN2408

The agreement be made with a valid majority of persons employed at the time whose employment will be subject to the agreement.

PN2409

And the phrase "persons employed at the time" refers to the time at which the agreement was made. NJ, we've heard from Mr Bradshaw this morning was employed under Silver Chain Standard Casual Workplace Agreement, which is in evidence I think at exhibit A4. And that provides that:

PN2410

Casual employees are employed on the basis that each engagement is a separate contract, they are not continuing employees.

PN2411

Accordingly NJ was not employed at the time at which the agreement was made and so was not eligible to vote. And Mr Bradshaw wasn't cross-examined in relation to that proposition. Now at paragraph 21 of the union's submissions the union asserts that the employee LB was eligible to vote because she was employed at the time of the ballot. Once again however, the requirement in 170LK is that:

PN2412

The agreement be made with a valid majority of persons employed at the time whose employment will be subject to the agreement.

PN2413

And LB is not a person who is employment will be subject to the agreement, being no longer employed by Silver Chain. Paragraph 23 there is again this double counting where the union has on the one hand referred to employees who were not issued with a ballot paper and then on the other hand referred to employees who were not issued with an agreement pack - and we point they are with one exception the same employees. Within the figure of five there should be six because I think the union contends that six employees were eligible to vote, so it should be four or on the union's argument six employees.

PN2414

Paragraph 24 of the union's submission there is a reference to the two additional dates that were counted by the auditors after the declaration of a valid majority. There is no suggestion of any irregularity or there has been no suggestion of any irregularity in relation to the counting of the two additional votes. I'm not sure of the relevance of it in the submissions though it does seem to have the effect of clouding the issue. At paragraph 25 the union says: well, if the Commission intends to make a finding that the two employees, NJ and LB, being the casual and LB being the person on maternity leave, were not eligible to vote then it seeks discovery in relation to obtain further details of those employees' work history and so forth.

PN2415

We have indicated there that we would be happy to provide further details of those employees to the Commission should the Commission consider it necessary. But we think in light of Mr Bradshaw's evidence this morning and there being no cross-examination on the subject that it is fairly straightforward and his evidence will be accepted. And his evidence was that LB is no longer employed and was on maternity leave at the time and hadn't come back from her maternity leave after a gap of several months. And NJ was a casual who wasn't employed during the period so in light of that evidence we don't think that there is any issue is relation to those two employees.

PN2416

THE DEPUTY PRESIDENT: In relation to the other issues of the original application for discovery. You would have heard the question I posed to Mr Kelly earlier today. Aside from perhaps the first element of that application which went to I think all the documents referring to negotiations with the ALHMWU. But the second and third of those items - documents relating or referring to information provided or steps taken to ensure the requirements of LE and LK have been met. Substantially those documents have - or I assume that many of those documents have been tabled one way or another anyway, have they?

PN2417

MR BLACKBURN: Well, your Honour, the difficulty with the way that these sorts of requests are worded is that they embrace every internal e-mail, every working draft, every handwritten memo and not simply the finished products. So there would be, I imagine, a large number of internal working documents that would be caught by the terms of that request. So certainly we wouldn't suggest that all of the documents that fall within - - -

PN2418

THE DEPUTY PRESIDENT: But in terms of documents provided to employees.

PN2419

MR BLACKBURN: Yes. Yes, I think - - -

PN2420

THE DEPUTY PRESIDENT: And the steps taken - - -

PN2421

MR BLACKBURN: Well, in terms of documents provided to employees the only thing I think we haven't provided to my knowledge and I've asked the question, is a handful of e-mails. I think there were two or three e-mails that were provided to employees in response to questions they had raised One might have been actually provided to a manager for passing on to an employee. So there was about two or three e-mails but that was about it I think in relation to documents provided to employees. As to all documents in response control relating to steps taken to ensure that the requirements of the Act have been met, that would include, for example, legal opinions provided by myself to Silver Chain. It would include all sorts of internal memoranda of which I'm unaware and e-mails of which I'm unaware. I mean, one supposes that these exist passing for example, between the various departments of Silver Chain. And I have no idea how many such documents there are but usually when a net that wide is cast - - -

PN2422

THE DEPUTY PRESIDENT: Yes. What I'm getting at is notwithstanding my refusal to accept the request or to effect summons for production of documents in terms of the documentation directly related to communications to employees and documentation surrounding the application that was provided to employees. One way or another that has all been produced anyway.

PN2423

MR BLACKBURN: With the exception of those e-mails I believe that all documents have been provided to employees have been produced in evidence.

PN2424

THE DEPUTY PRESIDENT: Yes, okay.

PN2425

MR BLACKBURN: And I think the e-mails were literally three or four or five in number.

PN2426

THE DEPUTY PRESIDENT: Bearing in mind the time, do you have anything further?

PN2427

MR BLACKBURN: No, your Honour, simply to say that as we set out at paragraph 74 that we do reject any application for discovery of the staff lists or the lists of persons associated with ballot papers and agreement papers. We are happy to provide those to the Commission on a confidential basis if required but we would extremely resist any applications by the union to obtain those lists. And we have serious reservations as to the use to which they might be put.

PN2428

THE DEPUTY PRESIDENT: Well, if you can provide me with any views on - if I form a view that I'm not satisfied and I consider the utilisation of 135(ii)(a), my reading of it is discretionary whether I do if I get to that point, any views on that Mr Blackburn, I will take into consideration if I get to that point.

PN2429

MR BLACKBURN: Yes, your Honour. Thank you.

PN2430

THE DEPUTY PRESIDENT: Mr Kelly?

PN2431

MR KELLY: Yes. I was heartened by Mr Blackburn indicating he wasn't going to re-hash his old submissions but I think in large part this morning that is precisely what he has done, even to the extent in the submissions that he submitted this morning he actually quoted - - -

PN2432

THE DEPUTY PRESIDENT: You will be given the same scope.

PN2433

MR KELLY: He quoted from his previous submissions which Vice President Ross - trying to create a chain of authority. When you quote from your own earlier submissions I really do think you are - - -

PN2434

THE DEPUTY PRESIDENT: There is a touch of irony.

PN2435

MR KELLY: That is correct. I will hand up a copy of the written submissions that I assume you've already - - -

PN2436

THE DEPUTY PRESIDENT: Yes, I have but I'm glad to accept another copy.

PN2437

MR KELLY: Do you wish to mark them?

PN2438

THE DEPUTY PRESIDENT: No, I don't need to.

PN2439

MR KELLY: No, all right.

PN2440

THE DEPUTY PRESIDENT: Did I mark the others? I don't think I did so I will - - -

PN2441

MR KELLY: I'm not sure whether you did or you didn't.

PN2442

THE DEPUTY PRESIDENT: No, I didn't.

PN2443

MR BLACKBURN: These are the submissions in reply that - - -

PN2444

THE DEPUTY PRESIDENT: Yes, but I haven't marked any submissions. I will just continue with that approach.

PN2445

MR KELLY: Before I make any comments, I had prepared just a table which outlines in our view the position we take in respect of the disputed ballots.

PN2446

THE DEPUTY PRESIDENT: That is two copies of the same thing?

PN2447

MR KELLY: Oh, I'm sorry, I should have - I did intend to only provide you with one.

PN2448

THE DEPUTY PRESIDENT: Yes. I will mark that R8.

EXHIBIT #R8 TABLE OUTLINING UNION POSITION ADOPTED REGARDING DISPUTED BALLOTS

PN2449

MR KELLY: It merely goes through those employees who we say for various reasons have had various sections of the Act not complied with. The various positions are identified in the right hand column.

PN2450

THE DEPUTY PRESIDENT: That is helpful, thank you.

PN2451

MR KELLY: And we simply provide that for ease of the Commission's consideration. I won't go through in any detail the submissions that we have already made. I merely wish to make a few brief comments based on the evidence that we've heard this morning from Mr Bradshaw and some response to some of the issues that Mr Blackburn has made in his submission. Firstly, Mr Bradshaw's evidence has made it clear that the additional affidavit, or the affidavit that he has provided this morning, really all he did was report advice that he had been given by another officer of the Silver Chain.

PN2452

Now I could have objected to the affidavit on the grounds of hearsay but of course, we are not bound by the rules of evidence, it is a question of what weight you give to that evidence and on that basis I made no objection. But I would submit that the Commission should not attach any particular weight to Mr Bradshaw's assertion that Silver Chain have now in effect gone back and gone through all their books to ensure that there were no more irregularities. Because on his own evidence, it wasn't he who did that, it was another officer of Silver Chain, a Ms - I think it is Robertson.

PN2453

Now if Silver Chain had wished they could have called that officer to give that evidence. Instead Mr Bradshaw throughout his affidavit says: well, I asked this officer to conduct the investigation, they conducted the investigation and I have been advised of A, B and C. Now he has conceded and it is not controversial that the original statutory declaration that Silver Chain provided was prepared with all due diligence, but nevertheless it was wrong. You now simply have Silver Chain coming along not with direct evidence from the person who conducted the inquiry but from a second hand source to say: well, this time we've got it right. I don't think it would be appropriate for the Commission to have any confidence that the material that is now before the Commission provides the complete story.

PN2454

Silver Chain had one opportunity, got it wrong, have had a second opportunity and rather than bring the person who can actually give that evidence or provide the documentation to the Commission, they've done neither. They've just brought along the CEO who has said: I've been advised. In respect of the submissions that Mr Blackburn has made this morning, in respect of the Grocon decision, he said their primary submission is that the question of informed consent is not one that arises in this case because of the paucity of evidence produced by the union to show that employees have been mis-informed or in some way their consent may not have been informed.

PN2455

That completely ignores the submission that we made from the start that the information pack that was provided to all employees, wrongly informed employees that the union had agreed to the terms that were contained within the agreement. That information pack is A7, and quite clearly - and I will refer you to it again. It was exhibit A7. It was the letter that went - the material that went to all employees who actually got the pack - it's the document dated 20 December 2002, headed: Proposed Silver Chain Enrolled Nurse Agreement 2003.

PN2456

THE DEPUTY PRESIDENT: Yes I have it in front of me.

PN2457

MR KELLY: And the second paragraph there says:

PN2458

After informing employees that negotiations between the union and Silver Chain had broken down -

PN2459

they say:

PN2460

There was general agreement on wages and conditions, but the sticking point at the end was the union's insistence that Silver Chain not be able to access Australian Workplace Agreements to meet specific operational requirements.

PN2461

Now, that is manifestly incorrect, because as we have submitted previously, the union never agreed that the terms and conditions contained within the agreement should apply in the nursing homes or the hostels. While we had reached, in principal, agreement that the conditions were acceptable to apply to the community enrolled nurses, we never agreed, and if you look at the other exhibits that was one of the sticking points that was clearly identified, that the union did not agree that those conditions should apply in the nursing homes and the hostels because the conditions in the agreement were substantially inferior.

PN2462

So every employee who got that information pack, wrongly was given the information by the employer that the union had, in a very clear way, given a stamp of approval to the terms and conditions contained in the agreement. Now that is not a small matter, that is the employer attempting to give the union's imprimatur to the agreement. Now Mr Blackurn has previously submitted that well that doesn't matter because in the explanatory documentation that went to employees, also in that pack, under the section relating to the scope clause - Mr Blackburn has correctly advised me that we actually re-numbered A7 as A21 because it incorrectly provided an earlier draft.

PN2463

The other document, which was an explanatory document, that also came into the package which was A23, it had previously been numbered as A8. He sought to get around the misinformation that was clear in the initial document by pointing to the explanation of clause 1 application in A22. That document reads:

PN2464

The agreement will apply to all Silver Chain enrolled nurses, including those engaged in residential care. This differs from the position adopted by the ALHMWU who sought to limit the agreement to community care.

PN2465

Now in our view that footnote, if you like, does not overcome the very clear statement on the front page of the information package under the signature of Ross Bradshaw which people haD been expected to read, which clearly conveyed the message that the union had approved the terms of the agreement. That is simply not the case - or simply was not the case. Therefore we say on that issue alone: the issue of informed consent is very much an issue that the Commission has to determine. We also had some additional evidence from the employee who came and gave evidence when we were previously before you.

PN2466

She was an employee from one of the nursing homes. She gave evidence that the nursing home employees - many of them were surprised that the agreement was going to apply to them. They hadn't previously been involved in the negotiations because the enrolled nurses who had previously - who had been involved in the negotiations were from the community care sector. So there was a real element, just before Christmas, that everyone getS sent an agreement that they know little about.

PN2467

So on the basis of the misinformation that is clear in the documentation, and you have had some evidence from an employee that the nursing home staff weren't fully informed, the question of informed consent, we say, is very real. Even if Mr Blackburn then spent a considerable amount of time again trying to say that informed consent is not something that is required by the wording of the statute, he again quotes his own submissions of paragraph 13, where he concedes that he said:

PN2468

They were prepared to go as far as saying genuine consent should mean consent, as considered by the common law.

PN2469

And at paragraph 13 he quotes his own submission saying:

PN2470

It should be limited to implying an absence of coercion, undue influence, unconscionable conduct or misrepresentation.

PN2471

Now even on that limited definition, misrepresentation has occurred in this matter, not only for the five employees who were provided with incorrect financial information, but for all of the employees who were subjected to a gross misrepresentation, ie that the union had given its tick of approval to the terms and conditions in the agreement. So even on Mr Blackburn's own interpretation as to what is required, misrepresentation has occurred in this matter and therefore there cannot be genuine agreement.

PN2472

Now we say however, that you are required - the statute goes further than merely those - the common law interpretation of agreement. We say you can rely upon those - the previous submissions that we have made in respect of informed consent. Mr Blackburn has referred on a number of times to whether common law people are expected to abide by the agreements they make. This statute actually goes through quite a detailed process to put in place a statutory framework which goes beyond the common law. People have to be given information under a certain period of time, they have to be told to go to their union or that going to their union is an option to them.

PN2473

There is a whole statutory framework that goes well beyond the common law. Now in our view that is - you look at this statute - informed consent - if genuine consent doesn't mean informed consent what does it mean? Mr Blackburn would submit to you that it is just a sterile notion that the buyer beware, you have to - if you sign on the dotted line that's it. Well quite clearly under this statute it goes quite - quite a deal further. In respect of the information that was provided to the five employees. He said: well it's particularly harsh to pin them on that because they weren't required to give that information, they weren't required to provide that financial information, so the fact that it was wrong shouldn't really count against them. Well we say the contrary.

PN2474

They deliberately provided that information to support a yes vote in the agreement. They didn't have to but they did, but they did it for a deliberate reason. They didn't do it because it was just - well they thought that would be beneficial or fair, they did it as part of their campaign to get a "yes" vote. Now five out of the 13 people were provided with incorrect information. Information which significant inflated the benefits of the agreement to them.

PN2475

So the fact that they didn't have to provide it, we say, is irrelevant. They deliberately provided that to people to promote a "yes" vote. It was wrong, they should be held accountable for that information. In respect of the Energy Developments case, we think there are two aspects of it which are quite interesting. One that has not been addressed this morning. The issue, on my quick reading of it this morning, that caused that agreement to come adrift was that the Full Bench - - -

PN2476

THE DEPUTY PRESIDENT: Before you go on Mr Kelly, you have not had other than this morning, the opportunity to examine this more fulsomely?

PN2477

MR KELLY: No I haven't, no.

PN2478

THE DEPUTY PRESIDENT: Well if you want to, you can address me now, but if you want to provide me with further written submissions on it I will accept them.

PN2479

MR KELLY: All right, thank you. I would simply draw your attention to the fact that one of the issues that caused this agreement to fall foul of the requirements was that the Commission found that the agreement applied to executive assistants and that not all executive assistants had been given the opportunity to vote. Now one of the previous submissions that we made in respect of this agreement, was that the agreement, on its face, says it applies to all enrolled nurses, and defines all enrolled nurses as people who are on the register at the nurses' board as enrolled nurses.

PN2480

Now we raised the issue that there may well be some people employed by Silver Chain who are enrolled nurses, in that they are still registered enrolled nurses, but are employed in different capacities. Now on its face the agreement applies to them. Now similarly in this matter, the Energy Developments case, the employer submitted:

PN2481

Well it was never intended that executive assistants would be covered and therefore they weren't offered the agreement, and therefore that shouldn't matter.

PN2482

Well the Full Bench actually said: well on its face it does apply to executive assistants, so all executive assistants should have been given the opportunity to vote and they weren't and therefore the consequences followed. But in our view Silver Chain's submission that well they don't intend this document to apply to all enrolled nurses, we say is not good enough. On its face it applies to all enrolled nurses. An enrolled nurse is someone who is defined as being on the register.

PN2483

Now it may well be that there are additional people who this agreement, on its face, will cover if registered. Now, Silver Chain have baulked at doing any search of their employment base to see if there are any other people who were picked up and have simply fudged that issue. Now in our view this Full Bench case says: well you can't because you have to apply the agreement according to its terms. Now in our view it is not some sort of absurd consequence, it is simply the way the agreement has been drafted.

PN2484

They could have applied it - they could have drafted it to say that it would apply to all persons employed as enrolled nurses, as opposed to people who are enrolled nurses. Now they didn't. Now, we think there may well be circumstances where people who are employed in some of the aged care facilities who have previously been called supervisors, or previously been called something else, but will be picked up by this agreement because they are in fact enrolled nurses by virtue of their qualification. So we say that is a serious issue that Silver Chain have simply sought to ignore.

PN2485

THE DEPUTY PRESIDENT: They gave undertakings on that issue didn't they Mr Blackburn?

PN2486

MR BLACKBURN: I don't think so your Honour, I think we addressed it directly as a question of interpretation of the agreement.

PN2487

THE DEPUTY PRESIDENT: Okay, thank you. Well we will review that later. I thought there were some undertakings about intent there. Thanks. Mr Kelly?

PN2488

MR BLACKBURN: Sorry, I think your Honour did raise it and we indicated that we would be happy to provide undertakings if that would assist.

PN2489

THE DEPUTY PRESIDENT: Thanks. Sorry, Mr Kelly.

PN2490

MR KELLY: That's all right. Well, in respect of the substantive matter that has already been discussed in respect to this decision, we simply say that this decision is further authority for the fact that the provisions of 170LK are mandatory. Mr Blackburn has done an admirable job trying to swim against the tide in this regard, but he really is asking the Commission to apply discretion into 170LK, which we say is simply not there.

PN2491

THE DEPUTY PRESIDENT: Well if that's the case, where does that leave 170LM, not with this matter, but if Division 2 is mandatory as you say then the same principles would apply to 170LM wouldn't it. And your union has been party to agreements where 170LM has been viewed as not mandatory, but rather 111(1) being available to extend time. You are saying that shouldn't be done?

PN2492

MR KELLY: Well, no what we are saying is 170LM has to be read in conjunction with 111, which clearly gives a power to the Commission to extend time - - -

PN2493

THE DEPUTY PRESIDENT: But 170LM doesn't, it says "must", just the same as the other provisions say "must".

PN2494

MR KELLY: Well, we say the two have to be read together. Now there is no contrary - or - there is no other provision under this Act that you can read in conjunction with 170LK- - -

PN2495

THE DEPUTY PRESIDENT: But see the availability - but the availability of 111(1) comes about from a - 111(2) and it what is exercising my mind is that it only comes about if 170LM is going a purpose of interpretation and if it is given a purpose of interpretation in 170LM, why isn't it in the rest of Division 2.

PN2496

MR KELLY: Well I simply make that submission that there is no other provision in the Act which you can read in conjunction with 170LK, to give it any other meaning than its plain English meaning.

PN2497

THE DEPUTY PRESIDENT: But what I am getting at Mr Kelly is that a number of unions, yours I think included, have been party to agreements where they haven't been applied for within the 21 days and have suggested to me, and I have acceded and accepted on occasions those suggestions, that well "must" doesn't mean "must" with respect to 170LM. So if "must" doesn't mean "must" with 170LM, how can it mean "must" for the rest of the Division?

PN2498

MR KELLY: Well I am not aware that the question of an extension of time for an application has been dealt with by a Full Bench- - -

PN2499

THE DEPUTY PRESIDENT: Well it has been dealt with by VP Ross and a number of members, myself included, have followed the approach of VP Ross with 170LM, that is the purpose of approach being given to the provision, and what I am asking you is why should a purpose of approach be allowable on 170LM, but not for the rest of the Division?

PN2500

MR KELLY: Well we would simply say because you have to read the statute as a whole. Now was it intended that 170LM, which does say "must", was intended to override another power within the Commission - within the Act, to extend periods of time. I think it is a reasonable interpretation of the statute that the power to extend time was not extinguished by the insertion of 170LM. 170LK merely says you must do a, b and c. There is no other provision in the ACT which says: when making an agreement the Commission has the power to waive periods or waive provisions.

PN2501

THE DEPUTY PRESIDENT: But see, the thing that is exercising my mind is Energy Developments and Grocon rely on 170LI and LH and they come back to the requirements of the Division in that reliance. Now if it is relied on to invalidate an agreement through the Division, why would 170LM not be similarly applied for 170LH?

PN2502

MR KELLY: Well, I suppose I can only re-make the submission that you have to read the statute as a whole.

PN2503

THE DEPUTY PRESIDENT: It might be the context of 170LM and it doesn't make it easy does it?

PN2504

MR KELLY: You know, it is not an issue that I had considered before you raised it, but that would be our immediate response, that again you have got to read the statute as a whole, it is the basic sort of role of statutory interpretation.

PN2505

THE DEPUTY PRESIDENT: Well that's what Mr Blackburn is saying.

PN2506

MR KELLY: Well he wishes you to read selectively the statute. The provision which says, "Fair and effective agreement making". We say well that's just no more than a statement of the common law, that if you sign off on an agreement in the absence of something horrendous, you are meant to be stuck with it. We say fair and effective agreement making takes the whole framework of these agreements way out of the realm of common law.

PN2507

THE DEPUTY PRESIDENT: Yes.Probably not relating to this, but it is curious actually that if the application isn't made within that 21 days then any action that was protected becomes unprotected, which is a pretty serious consequence. Anyway that's just an observation I am looking at.

PN2508

MR KELLY: Well thankfully that is not a matter that is before us today.

PN2509

PN2510

THE DEPUTY PRESIDENT: No. And even if you reach an agreement with protected action, if you don't - well presumably it has to be an agreement that you intend to certify. If you don't make the application for certification then it's unprotected.

PN2511

MR KELLY: Presumably.

PN2512

THE DEPUTY PRESIDENT: Anyway again, just an observation.

PN2513

MR KELLY: It is not an Act that you will find many, you know, compliments from us in this regard.

PN2514

THE DEPUTY PRESIDENT: It's hard to find anyone with any compliments.

PN2515

MR KELLY: But the fact that the employers don't seem to be happy with it does tend to indicate you can't please them in any event in our view. So, yes, we would simply say that Energy Developments should be followed, and it does, in our view, lead to the question of: well, what should the Commission do if you are of the mind that the requirements have not been met. Well our substantive submission would be that there is no valid agreement if the provisions of 170LK have not been met, and on that basis you don't get to 170LV in order to deal with potential undertakings, or for that matter 132(a).

PN2516

THE DEPUTY PRESIDENT: 135(2)(a).

PN2517

MR KELLY: 135(2)(a) my apologies.

PN2518

THE DEPUTY PRESIDENT: So your view is, if I form a view that I'm not satisfied that there was genuine agreement by those who should have been entitled to vote, then I can't utilise 135(2)(a). Is that what you're saying?

PN2519

MR KELLY: That's correct.

PN2520

THE DEPUTY PRESIDENT: What's the purpose of it?

PN2521

MR KELLY: If, for example there may be some other provision of the act which requires you to come to a conclusion that the agreement hasn't met the test, but we would say if it hasn't met 170LK you don't get to that. Now if we're wrong on that, we would say that as a matter of discretion, it is not something that you should, in this case, exercise - - -

PN2522

THE DEPUTY PRESIDENT: Well again Mr Kelly I take it you haven't considered that issue, if you want to, similarly to Mr Blackburn, put a view on that, should I get to that point, then I will accept that in writing.

PN2523

MR KELLY: Sure. I would simply submit at this point in time though that it depends really at which point in the process you find that the ballot has been unsatisfactory. If for example you find, well it was unsatisfactory because a small number of employees didn't get an opportunity to vote who should have been, and that's what you wish to remedy and then you may think well a new ballot will remedy that and I can just order that, and people can have a ballot and we'll get on with it.

PN2524

We would say in this matter, there has been a fundamental chain of misrepresentation that has gone on and at the end of that a whole range of people have not been able to vote, who should have been able to vote. Now simply having a ballot is not going to remedy the misrepresentation that started as soon as they sent the ballot information out. In our view, in order to remedy a problem of that nature, you really need to go through all the processes required by the Act.

PN2525

THE DEPUTY PRESIDENT: So let me understand you correctly. What you appear to be saying is, even if you apply the Act on the basis of its fair process, and not even the issue of at that point informed consent coming into it, what you're saying is because of the misleading information that the process wasn't fair, and therefore it should stop at that point. In other words the whole process renders the whole application invalid.

PN2526

MR KELLY: That's correct and to merely have a ballot - a fresh ballot, if you haven't remedied the misinformation, just to have a ballot would not remedy that deficiency. It is open to the employer - - -

PN2527

THE DEPUTY PRESIDENT: But presumably 135(2)(a) allows directions to attach to any ballot that can remedy any defect? Again you might want to consider that.

PN2528

MR KELLY: Sure. Well we would simply say, if this application is not successful, it is simply open to the employer - - -

PN2529

THE DEPUTY PRESIDENT: To go through the process.

PN2530

MR KELLY: - - - to go through the process again. So why should the Commission attempt to patch together the process and order a new ballot, when it is probably simpler for the employer to simply start again, provide the information, go through the process and conduct a fresh ballot. We don't think there is any compelling reason why the Commission should try to stage manage a patched up version.

PN2531

THE DEPUTY PRESIDENT: Yes I understand your admission.

PN2532

MR KELLY: Look in respect of the extrinsic information that has been provided by the employer, we simply say that there is no absurd result which would be the consequence of the interpretation that we seek in this matter. It was clearly the intent of the Parliament that certain matters must be provided for, must be complied with prior to an agreement being registered. Now, you know, it is extraordinarily in our view - well it is extraordinarily rare, and we say in this case completely unnecessary, to refer to the agreement between the Democrats and the Government in respect of this Bill. And we say on that basis that it should be put aside.

PN2533

For what it's worth, if you are of a mind to pay attention to the contents of it, at 3.29 Mr Blackburn took you to a section, the third dot point in 3.29:

PN2534

The AIRC will also be required to satisfy itself that -

PN2535

and then:

PN2536

A valid majority of employees generally made or approved -

PN2537

and in this context the AIRC:

PN2538

would take into account whether relevant employees had had the agreement explained to them in ways that were appropriate to their particular circumstances and needs.

PN2539

And he highlighted that as: well that's proof that informed consent is not part of the process. Well, we say quite the contrary. The mere fact that there is a provision in there which says, you know, the agreement has to be provided, explained in a way that takes account of people's particular circumstances and needs, makes it clear that the Commission does have an obligation, however difficult Mr Blackburn may say it is, for the Commission to conduct some inquiry to ensure that people have had the agreement explained to them in a way which is understandable to them. That's what is meant by "explained in ways that are appropriate to their particular circumstances and needs". Are they from non English speaking backgrounds? Was the information provided in languages that they could understand? Or were they given access to interpreter services?

PN2540

All those issues are precisely there, not for the buyer beware common law approach to agreement making, but to an agreement making process where the informed consent of the parties making the agreement is crucial to determining whether or not the process is fair. If fairness was not intended to include informed consent - why we would say, would that be such an emphasis? In respect of 30.3, it is interesting Mr Blackburn drew attention to that section as well, because that section says:

PN2541

Rather than refusing to certify an agreement which does not satisfy in one of these aspects, the Commission can offer the parties the opportunity to amend the agreement, or to make an undertaking concerning its operation.

PN2542

So clearly the undertakings go to things like an amendment to the agreement, or an undertaking in respect of the way it is going to operate. In this matter the requirements in 170LK are procedural requirements that have to be gone through to ensure that there is fairness in the process. They are not undertakings to the actual content of the agreement or how it is going to operate after certification, was not what this was all about - or was what this was all about, not the procedural requirements of 170LK, and we say that is an important difference.

PN2543

THE DEPUTY PRESIDENT: Yes, well in any event if the agreement is amended it's got to go back through the whole process again doesn't it?

PN2544

MR KELLY: Well we would say yes that's correct, but none of the defects, the misinformation, or the failure to provide the opportunity vote is the type of defect that can be addressed by amending the document.

PN2545

THE DEPUTY PRESIDENT: Yes, 170LK(8), "If it is varied for any reason, steps in 2, 3, 5 and 7 should be gone through again". The only difference is the notice with respect to 170LK(4) apparently.

PN2546

MR KELLY: Yes, but we say that is not an option that is of any use in this matter because the defects are not of that nature. I suppose I would finally just like to comment on paragraph 84 of the submissions that were put in on 18 February by the respondent, sorry by the applicant. That paragraph says:

PN2547

Further the Commission can be assured from the checks which Silver Chain have undertaken, from the forthright manner ...(reads)... and from the failure of the union to bring forward any other irregularities, that all of the errors have now been identified.

PN2548

We would simply say that the history of this matter is that the applicant came along with a statutory declaration which said all was well. It was not until the union, merely by circumstance came across a number of employees, or at least one employee who we believe had been incorrectly excluded from the ballot. When that happened the applicant's first attitude was: well that's not the case, there is no such employee and it wasn't until after the hearing that - and upon some sort of check of the employers records, that a whole range of other employees have come to light who have not had the opportunity to vote.

PN2549

In our view it is not as the applicant would suggest, the onus is not on the union to provide evidence of further irregularities, it was for the employer to satisfy the Commission that there are no further irregularities. We would submit that all that's happened today, as I have reiterated, is that Mr. Bradshaw has come in and given second-hand evidence as to what has happened. We would submit that there is no basis upon which the Commission could be satisfied that there are no further irregularities.

PN2550

And we would say that again given the history of this matter it would not be appropriate to only have that information provided to the Commission, it would be reasonable that the union also be given access to that information, because without that information we are not fully able to represent the members that we do appear on behalf of. Subject to being given the opportunity to make some further submissions on some of those points that you have raised your Honour, that would be our submissions.

PN2551

THE DEPUTY PRESIDENT: Yes and I take it if I conclude that the agreement is certifiable and proceed to certify it, that the union still retains a request which has not been withdrawn by an employee who will be bound by it, that it wishes the union to be bound. Is that still the position Mr Kelly?

PN2552

MR KELLY: Yes that is still the position yes.

PN2553

THE DEPUTY PRESIDENT: Yes, okay. Thank you Mr Kelly. There was one point on that last point I want to address to Mr Blackburn and that is - and I don't think we heard any submissions from you on the issue of - if the eventuality is an agreement being certified of any position, objection or consent to the union being bound.

PN2554

MR BLACKBURN: Your Honour our instructions now are to consent.

PN2555

THE DEPUTY PRESIDENT: Yes, thank you.

PN2556

MR BLACKBURN: Your Honour might I just address one question that you put to Mr Kelly?

PN2557

THE DEPUTY PRESIDENT: What question was that?

PN2558

MR BLACKBURN: Simply the query relating to 170LM. Just to make the observation that, firstly that the purpose of an approach is required in any way by section - it seems in relation to all matters, by section 15AA of the Act's Interpretation Act, a copy of which we provided to you. But also Mr Kelly indicated that whereas it might be permissible, under section 170LM, to extend time because there was a specific provision in 111(1)(r) which allowed for the extension of time, he said there was no other provision which would go to the matters in 170LK, and of course there is and that's 111(1)(q), which allows the Commission to correct, amend or waive any irregularity or defect, whether in substance or form.

PN2559

So it would seem to us that if 111(1)(r) was available to extend time under 170LM, it would follow that 111(1)(q) would be available to cure defects and irregularities in substance or form under 170LK. Your Honour, the only other query I had was you have indicated that you will entertain written submissions in respect of 135(2)(a). Will your Honour receive a submission in relation to the admissibility of the extrinsic evidence that has been tendered? Having regard to the decision of the Full Bench in the hospitality matter that you mentioned.

PN2560

THE DEPUTY PRESIDENT: If I didn't indicate that at the time, I thought I had, that if you hadn't had the opportunity to consider that then I will accept submissions to you on that, and obviously that goes to you as well Mr Kelly if you wish.

PN2561

MR BLACKBURN: Thank you.

PN2562

THE DEPUTY PRESIDENT: Nothing further? Okay. I will adjourn on this matter and deliberate on what has been put and what additional will be put. Just in terms of time frame, if the parties can - if there is anything further on those particular issues, if they can get that to me by say, by close of business on Tuesday. Does that give you sufficient time?

PN2563

MR BLACKBURN: Yes, thank you.

PN2564

THE DEPUTY PRESIDENT: Mr Kelly. Yes, okay we are adjourned.

ADJOURNED INDEFINITELY [12.45pm]