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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
DX 305 Melbourne Tel:(03) 9672-5608 Fax:(03) 9670-8883
TRANSCRIPT OF PROCEEDINGS
O/N 3489
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
COMMISSIONER SMITH
C2003/1206
TELSTRA CORPORATION LIMITED
and
CPSU, THE COMMUNITY AND PUBLIC SECTOR UNION
Notification pursuant to section 99 of
the Act of a dispute re entry of officials to
Telstra premises
MELBOURNE
10.06 AM, MONDAY, 30 JUNE 2003
Continued from 2.5.03
PN1102
THE COMMISSIONER: Has there been any discussion as to the program for today?
PN1103
MR TRINDADE: There has not, Commissioner. I was proposing a fairly simple program subject, of course, to the Commission's wishes which was that I would start and make some submissions. Mr Veenendaal will follow and I will provide anything in reply.
PN1104
THE COMMISSIONER: Unanimous support for the proposition.
PN1105
MR TRINDADE: Commissioner, I might also note just a change in appearance today, I appear today with MR S. GILSON. Commissioner, before I start my submissions there is one matter I firstly want to touch upon and I do it out of courtesy to the Commission in that during the hearing on 1 May I made a couple of reference to submissions on legal professional privilege, client legal privilege, as it is now called, and I am sure the Commission would be aware, I made a reference to the case of Grant v Downs being authority for the proposition that in-house legal advice has the same protection from lawyer/client privilege as external legal advise.
PN1106
Whilst Grant v Downs certainly is proposition as to the protection of legal professional privilege the preference perhaps should have been to the case of Waterford v The Commonwealth and I apologise to the Commission if I didn't make a fulsome submission.
PN1107
THE COMMISSIONER: That is all right.
PN1108
MR TRINDADE: The submission is the same and the authority is the same, it was simply the reference that I had confused, but on - something twigged in my mind afterwards so I went and checked the proposition and Waterford v The Commonwealth is in fact the correct reference.
PN1109
THE COMMISSIONER: Yes, the point is an interesting one which I have looked at subsequently as well and it is by no means automatic, but one can't imagine in the exercise of public interest, why you would not adopt the policy.
PN1110
MR TRINDADE: Certainly and I think the Courts have clearly indicated that - and similarly in the Esso decision in the High Court recently where they changed the test from the sole purpose to the dominant purpose. It was still an affirmation of the important public interest in having communications between a lawyer and client protected from disclosure. So with that out of the way, and again, my apologies to the Commission for that. I suppose the first thing we would like to formally tender is the outline of submissions that was filed with the Commission dated 14 March.
PN1111
THE COMMISSIONER: Splendid. As soon as I track them down you can formally tender them. What date did you say that was?
PN1112
MR TRINDADE: They were dated 14 March and I believe they were filed and served by 18 March.
PN1113
PN1114
MR TRINDADE: Thank you, Commissioner. Commissioner, I thought rather than - they are fairly brief - it is a fairly brief outline of submission and it does not require a great deal of traversing of the issues in it and I thought, rather than going into the authorities in great detail because, certainly, the Commission, I am sure, would be aware of the authorities and I know that it has been examined, they are referenced in the submissions and also the submissions of the union. Perhaps, what I thought I would do is, make more reference to the matters of evidence that have been before the Commission because we would say, firstly, that on the - - -
PN1115
THE COMMISSIONER: There is nothing between the parties in relation to the authorities, I didn't think.
PN1116
MR TRINDADE: I don't believe there is.
PN1117
THE COMMISSIONER: No.
PN1118
MR TRINDADE: I believe that we both - - -
PN1119
THE COMMISSIONER: It is just whether or not the power should be exercised having regard to the facts.
PN1120
MR TRINDADE: I think - that is certainly my understanding. Perhaps Mr Veenendaal might have some submissions in relation to that but - - -
PN1121
THE COMMISSIONER: Sure.
PN1122
MR TRINDADE: - - - I don't see there being a great - certainly not a great element of dispute in relation to whether there is a dispute. I think we both can firmly agree on that and that is in our submissions in paragraph 3 and in the union's submission in paragraph 19. And we would certainly say that there is authority for the proposition that the Commission has power to make the order sought and it is simply - the issue for us is whether the order should - that we seek, should issue on the merits. In our outline we have referred to five factors that go to the merits and those factors are that the lunch room is an inappropriate venue for discussions under section 285C of the Act, to take place.
PN1123
That the conference room provided by Telstra - and I perhaps might say that we would amend that to include the conference rooms because from the evidence that was before the Commission, we say, and the site inspection, it is clear that there are two other suitable venues. So they are both appropriate venues for discussions to take place. We say the making of orders will not frustrate the object of the union holding discussions under the Act. We say that the evidence shows that the behaviour of the employees or officials of the union has been inappropriate such as to warrant the orders being made.
PN1124
And we also say that the making of orders is desirable for the industrial harmony of the workplace and consistent with the wishes of the employees' health and safety objectives and the legislative regime of division 11 of Part IX of the Act. Dealing perhaps with the first of those submissions, the issue of whether the lunch room is inappropriate, we would say, that Ms Schroter gave uncontested evidence as to the lunch room and its uses, that was in exhibit T1 at paragraphs 9 to 12. And the evidence that Ms Schroter was that the lunch room is used for - by employees and by, what she describes as, agency staff for preparing and consuming food and drinks, rest breaks, use of a surf cafe which is provided by Telstra to allow free access to the internet for personal use.
PN1125
Reading notice boards, access to rest rooms, interaction with other staff, access to the rear rooms. We would say it is clear from the evidence that Ms Schroter gave that the lunch room is a place that Telstra does not use for meetings. It does not use it for the purposes of discussions with staff. It respects that the lunch room is a place where staff should be free to enjoy their rest breaks in peace without interruption, without undue interference by Telstra or by the union. And we note, particularly, that the evidence of Ms Schroter was that it was particularly important that the staff have those rest breaks in a quiet area which is free from undue interference because of the call centre environment in which the staff work.
PN1126
Ms Schroter also gave evidence as to the unsuitability of the lunch room for holding discussions and that was in paragraphs 19 to 20 of her statement which is exhibit T1. In those paragraphs she went through, in accordance with Telstra's policy, the range of factors determining whether the lunch room was an appropriate venue and whether the conference room was an appropriate venue. And, we say, it is clear, that on the basis of all of those factors, that she made the appropriate decision that the conference room was a suitable venue for discussions to take place and that the lunch room was not suitable.
PN1127
We don't even put it - although we could, Commissioner, that it was a case of one being more suitable. We say, that on an objective analysis of the pros and cons of the rooms and the criteria put, and we say they are all reasonable criteria, that she determined that the lunch room was unsuitable. She then determined the conference room was suitable. When it came to the evidence of how the lunch room was used Ms Lillis conceded that she had very little actual knowledge of how staff take their breaks and what they do in the lunch room. That was at paragraph 1618 of the transcript and it was under cross-examination in relation to - as to her statements about how the staff used the lunch room and she was asked:
PN1128
So you wouldn't really have a great deal of first hand knowledge as to how staff take their lunch breaks, whether they use the lunch room, what they do.
PN1129
And she says:
PN1130
No, only the visits I have conducted.
PN1131
And it is clear from her evidence, we would say, that those - and those visits, as she said in her evidence, she didn't really pay a great deal of attention to what was happening, wasn't there for a significant period of time, doesn't really know what happens and how the staff use it. So we would say the evidence of Ms Schroter is the only evidence with any weight before the Commission as to how the lunch room is used. Ms Lillis also gave some evidence as to her attendance on 9 April 2002 and the designated area that Ms Schroter had provided for the union.
PN1132
I might refer, if I may, Commissioner, to - it is an attachment to exhibit T1, it was the replacement exhibit, SJS1 which was the map of the floor plan of the Galaxy Centre. And you will recall, Commissioner, that in evidence the area that was circled on that page was the - was indicated by Ms Schroter to be the designated area which she had set aside for the union on that day, on 9 April. And Ms Lillis at paragraph numbers 1367 and - to 1381 gave some evidence in relation to that area. And I take you paragraph number 1367 where she said:
PN1133
A designated area in the middle of then workplace where work is being conducted which is in view of management and in view of every other staff member is not an appropriate venue or area to hold discussions.
PN1134
And she went on to be examined as to whether it was in view of state managers and staff and whether people could be seen if they were speaking to the union. And it was also put to her that that was similar to the lunch room in that people - managers come into the lunch room and we would say that, you know, that she was asked if, during the course of a visit - this is paragraph number 1371 - asked during the course of a visit, "Many managers would walk by where you were seated?" She said, "Yes and they would sit down and have conversations." She was asked to agree that they would be going to the toilet - they would have to walk past the table. She said, "Yes."
PN1135
They asked if they were coming to make a coffee they would have to walk past where the tables are and she said, "Yes." So - but when we were asked - when we asked the question as to, well, given that she had an issue about the designated area being inappropriate because it was in plain view of people and people could see when she had discussions, we say, Ms Lillis gave a rather unsatisfactory answer that it was a very different context. We say the context is the same and we note that it is a matter that is not pressed by the CPSU, but we say, the basis of the evidence that was given by the CPSU as to why they say staff were - preferred to use the lunch room, and we will get to the views of staff later, that there were two reasons given.
PN1136
One, was the shortness of breaks, and we will get to that issue later, and the other was this issue of whether they could be seen and we say that the same reason applies to the designated area, it was an area where the union said people were concerned about being seen as applies to the lunch room. In relation to the conference rooms being appropriate the same paragraphs that I referred to in Ms Schroter's statement, 19 to 20 where she analysed why the lunch room was inappropriate, she also analysed why the conference room was entirely appropriate.
PN1137
Now, Ms Lillis gave evidence as to why, in her view, the conference rooms were not appropriate and these were a range of - there were a range of suggestions made by Ms Lillis as to why it was inappropriate. The first, perhaps, is that employees cannot eat in the conference rooms and it was suggested that if you can't eat in the conference room then it would not be a convenient place for people to meet with the union during their lunch break. But on cross-examination - and that was at exhibit CPSU1, Ms Lillis' statement at paragraph 67.
PN1138
But under cross-examination it became apparent that that view that staff were not allowed to eat in the conference room was simply not based on any evidence at all. It was based on an understanding of what she was told but she couldn't really tell us what she was told and how. And clearly there is no evidence that that is the case.
PN1139
THE COMMISSIONER: Not only that, it is not your submission, is it, that staff are prohibited from eating in the conference room?
PN1140
MR TRINDADE: Indeed not, indeed not, and we may have something to say in relation to that at a later stage today. We - she also gave evidence - Ms Lillis also gave evidence that members had advised her that they don't feel comfortable to use the conference room because they may only have a 15 minute break and it is not a long enough time and they also may be seen as a troublemaker because they are seen talking to the union if they go to a conference room and that was at paragraph 70 of Ms Lillis' statement. But when she was cross-examined in relation to those suggestions, again we say, a very different picture emerged.
PN1141
In relation to the issue of a 15 minute break, we say, by reference to the transcript at paragraph numbers 1652 to 1667, we say it becomes very clear that the only time that employees might have a 15 minute break - it might be one or two employees who don't have their lunch break in the hours that Ms Lillis is not there if she can't be there for the entire period that spans when staff take their lunch break. And that is drawn out in paragraph number 1691 where it was put to her:
PN1142
If you get there at 11.30 and stay until three that every person would have an opportunity to speak to you for at least half an hour if they chose to do so.
PN1143
And she said:
PN1144
No, I understand that some people - a couple of people may take their breaks a bit earlier than 11.30 but it is not always practical for me to arrive at the site any earlier than 11.30 or 12.
PN1145
So we would say that in respect of those couple of people - and she did go on to say under cross-examination that it would be right that those people would be able to speak to her on other occasions or make arrangements to speak to them outside. So, we would say, in relation to that submission as to why the conference room is inappropriate, we say that is not borne out by the evidence, it is not supported by the evidence that came out under cross-examination. In relation to the question of whether people might be seen as a trouble maker, well, the CPSU conceded that they don't seek to rely on that and that was at paragraph number 1400 of the evidence.
PN1146
There was also some evidence given as to, what was called, the fish bowl and the Commission will recall that the fish bowl was a room that, despite its picturesque name which perhaps suggests that it is a place which could be easily seen from all sides like a fish bowl, in fact it was a room which couldn't be seen into. And the evidence went - and this was at paragraphs numbers 1382 to 1396, to the extent that if you wanted to see into the room you would have to crawl on your hands and knees and peer up through a small gap in the bottom of the window where it was see-through or climb on a ladder and look over the top.
PN1147
And there was actually no part of the building that you could actually see the entrance to the fish bowl to. There was a suggestion from Ms Lillis, I believe, and we would say a rather incredible suggestion, that staff going towards the fish bowl might be seen walking along then corridor and whilst all the other staff around wouldn't know whether they were going to leave the building or to go into the fish bowl, they might be able to differentiate between the sound of the front door opening and closing and the fish bowl door opening and closing to determine that they had in fact gone in there.
PN1148
So I think, at best, the union's evidence on that - or Ms Lillis' evidence on that at paragraph numbers 1382 to 1396, would be - you could perhaps infer that a manager with particularly acute hearing maybe able to make some subtle distinction between door sounds and decide that in fact someone had entered the fish bowl rather than leave the building. We say, that that is just an incredible assertion and that is at paragraph 1394 of the statement. There was also some reference made - and I don't particularly propose to go to those reference but just to raise them for the Commissioner's attention at paragraphs number 1397 to 1399 to the effect that - the submission that people could be seen by managers and all staff going into the conference room.
PN1149
And there was certainly a concession that Ms Lillis had not actually been able to see any team managers from there. She didn't see Ms Schroter's office and she really had not paid that much attention, to be honest. The other suggestion in relation - that Ms Lillis gave in relation to the conference room was that staff don't usually use the conference rooms and that was at paragraph 65 of her statement, CPSU1. She says that:
PN1150
It is uncommon for staff to enter and exit the conference room other than for the specific purposes. It is not a communal area.
PN1151
On cross-examination at paragraph number 1648, again, that proposition was put to the test, Commissioner, and we would say - perhaps we are developing a theme here, but we say, that that assertion was found lacking. It was actually put to her that she doesn't know that. He says, "But you don't know that, do you?" And she said, "No" and does go on to suggest that she does not really know herself and that is at paragraph number 1651. On the issue of whether the order sought by Telstra would frustrate entry or discussions, we would say, that the Commission should look and take a great deal of weight to the Commission's own inspection of the premises.
PN1152
And we would say it is clear that there will be no additional time or inconvenience for staff to attend discussions and for discussions to occur in the conference rooms as opposed to the lunch room. It is a small centre. I have not timed it, Commissioner, but I would estimate that you could walk, comply with health and safety regulations not to be running devil-may-care across the Centre, and you could walk from one side of it to the other in 30 seconds. Between the lunch room and the conference room, I think in the Commission's own experience, you would say it is a very short period of time that it would take to talk between any of those rooms.
PN1153
So in terms of timing and convenience to attend, we would say, that there really is no issue there, and we say also, that there was really no evidence given by - on behalf of the CPSU, or no evidence given by any of the witnesses in the matter, as to why the conference room - the use of the conference room would hinder discussions. We say that the suggestion - and I think the - at the best suggestion we think is that the union might say there would be people who don't particularly wish to have - or we don't know whether they wish to have discussions with the union or not but it would give the union more of an opportunity to spruik their services, as it were.
PN1154
And we say that that is not the purpose of discussions under the Act - it is to have discussions. We say discussions clearly implies an element of consent. It is very difficult to have discussions with someone who does not want to have discussions. We say the Act does not provide the ability that the union have a right to have discussions with anyone who doesn't want to have discussions with them. And we would say, on that premise, the conference rooms - there is no evidence before the Commission that the conference - the order requiring them to use a conference room would frustrate their entry or their discussions.
PN1155
Commissioner, on the issue of whether the behaviour of the union officials was inappropriate, we say, that there was quite a lot of evidence given as to the behaviour of the union officials and we would like to pick out some of the key behaviours that we say were inappropriate. The first, I suppose, is the issue of the use of the lunch room on the day by Ms Lillis and Mr Richardson where, we say, the evidence clearly comes out that they pretended to agree with Ms Schroter that they would relocate to the conference room when they were told the lunch room was inappropriate, but then they, sort of - and I think we can put it as highly as, snuck back into the lunch room to use that.
PN1156
And that is dealt with in exhibit T1, Ms Schroter's statement at paragraphs 38 to 40 and it is also dealt with in Ms Lillis' cross-examination at paragraphs numbered 1436 to 1445. For example, 1437, Ms Lillis admits that she was asked to go to the conference room and did and she did so. She didn't say she was doing it under protest, she said she did it to avoid a confrontation but then she went back to the lunch room after Ms Schroter was no longer there. And we say that that is a pretty inconsistent statement to make, Commissioner, because if she left the lunch room to avoid confrontation - and it was certainly put to her that if she was trying to avoid conflict then would she have not realised that Ms Schroter would know - would find out that you had returned to the lunch room and come and speak to you again.
PN1157
And she didn't answer that question - Ms Lillis - she said, I relocated because there were no persons or members - members or persons eligible to be members, visited her in the conference room. So that was her statement. She did not even go into the issue of whether it was consistent with her alleged desire to avoid confrontation.
[10.32am]
PN1158
The issue of the mobile phones, received a fair bit of contradictory evidence we would say. And we would say that the Commission should be satisfied on the evidence that Ms Lillis and Mr Richardson did fail to turn their mobile phones off, contrary to the health and safety instructions. And did so. And when asked to do so did not turn those mobile phones off. We would say that is drawn out from exhibit T1 at paragraph 41, and the CPSU1 at paragraph 77. We say there is obviously a conflict in the evidence there, and we would say the Commission should prefer Ms Schroter's evidence.
PN1159
The aggressive and inappropriate behaviour of the various union officials was gone into in some detail, but I would like to perhaps touch upon the behaviour of Mr Waters, because it seems to me that there was a significant amount of - - -
PN1160
THE COMMISSIONER: Is that relevant to this application?
PN1161
MR TRINDADE: Well, it certainly is because on the evidence that was before - - -
PN1162
THE COMMISSIONER: He is no longer in a position to seek right of entry, is he, within the union?
PN1163
MR TRINDADE: I believe he is.
PN1164
THE COMMISSIONER: Is he?
PN1165
MR TRINDADE: If Mr Waters is not in a position to seek right of entry, but as I understand it, is still an official of the union, he still has - he is a permit holder under the Act - - -
PN1166
THE COMMISSIONER: He has been given other responsibilities and not so much the responsibilities that would bring him into close contact with this call centre at Maroochydore, isn't he?
PN1167
MR TRINDADE: Well, look, that may be the case and I think we would all breathe a collective sigh of relief if that was the case, Commissioner. But I don't know how the internal organisation of the - - -
PN1168
THE COMMISSIONER: As long as your sigh doesn't seek to include me, that is - - -
PN1169
MR TRINDADE: I meant, collectively from the Telstra sense, Commissioner.
PN1170
THE COMMISSIONER: I see.
PN1171
MR TRINDADE: But Commissioner, the evidence that was given on behalf of the CPSU was that Mr Waters had - I think it was suggested by Ms McDonald, that he was promoted. Or Ms Lillis, that he was moved to another area. So it seems to me that it would still be a very much alive issue as to whether there would be nothing to prevent Mr Waters, other than the order that we hope to obtain from the Commission, for long term. So we think it has some relevance, Commissioner.
PN1172
THE COMMISSIONER: Yes.
PN1173
MR TRINDADE: There was some interesting issues in relation to Mr Waters. We would say there was ample evidence from Ms Schroter as to his inappropriate behaviour. And we dealt with - that was dealt within paragraph numbers 182 to 185 of the transcript. And there, Ms Schroter, we say, quite credibly reported the events of that day involving Mr Waters' aggressive behaviour. Now, one of the interesting things that we have in this matter, Commissioner, was that there was evidence given as to a tape recording being made by Mr Waters.
PN1174
And in fact there was a suggestion that the CPSU had the tape recording available and indeed, endeavoured to put into evidence the transcript - I will call it the transcript. Not that it was a certified transcript, something that we might get from this honourable Commission. It was something that had been prepared by persons unnamed. Having heard the transcript and in fact it was exhibited by Ms Lillis before she had heard the - heard the tape and could verify its accuracy.
PN1175
Now the union had the opportunity to put the tape recording into evidence. And there was some discussion as to whether that was to be put in, and I believe the Commission asked me some questions as to whether that would be subject of submission. And the statement I made at the time, Commissioner, was that it is for a party to choose what evidence it puts in. We say this about the tape recording. It wasn't put into evidence. That was clearly exculpatory evidence of Mr Waters not being aggressive, of not being blunt, of not being loud, of not being abusive.
PN1176
And the reason, the reason that was said that the tape recording was made,was for - was to pick up the tone. Commissioner, if I can take you to paragraph 1478 of the transcript, and I was put to Ms Lillis in cross-examination, 1477:
PN1177
I am saying to you, why did you and Mr waters feel it necessary to bring the tape recorder rather than simply take notes?
PN1178
Ms Lillis then answered:
PN1179
Because of the behaviour of Ms Schroter on the previous visits.
PN1180
1478:
PN1181
And you couldn't take notes to that effect?
PN1182
And Ms Lillis's answer:
PN1183
No, it doesn't address the tone of the behaviours being used.
PN1184
The tape recording was there to address the tone and the behaviours being used. Telstra's evidence is that Mr Waters was aggressive, was rude, was blunt and loud. CPSU had an opportunity to present to the Commission credible, independent evidence, objective evidence, that - to prove that that wasn't the case. It chose not to do so. And we would say that that is clearly the basis for the Commission to drawn inference that that tape recording would not have helped the CPSU's case. We would say that that is clearly an inference under the rule in Jones v Dunkel that the Commission can draw.
PN1185
We would also say that Ms Lillis gave some evidence that she didn't - she was next to Mr Waters the whole time, and she didn't see - she saw Mr Waters, and he didn't hit Ms Schroter with the tape recorder. And that evidence - if I can take the Commissioner to paragraph number 1502 of the transcript, it asks a number of questions in relation to that, paragraphs 1502 to 1529. And it was put to Ms Lillis that she wasn't actually standing next to Waters at the time, and she said, no, she was standing with Mr Waters at the whole time.
PN1186
And it was put to her, to Ms Lillis, that she wasn't - she was in fact completing her induction. This is at paragraph number 1506. And Ms Lillis gave her clear evidence on this. I never did an induction. Mr Waters - Mr Lester did the induction with Mr Waters, never did the induction with me. But then in paragraph number 1508, perhaps Ms Lillis had an inkling of what was coming, because I asked the question:
PN1187
So it is your evidence to this Commission that you did not complete an induction on 26 July 2002?
PN1188
And Ms Lillis starts to back track, and says:
PN1189
I may have signed a form for the induction, but, you know, I didn't really do the induction, I just signed the form.
PN1190
Now, that exhibit, Telstra8, we would say clearly shows that Ms Lillis did indeed sign the form, and we say that when assessing her evidence that she never completed the induction, the inconsistency with that - the inconsistency of her having signed the form and her saying she never completed the induction, is an argument strongly against the credibility of Ms Lillis, and strongly against the proposition that she was standing next to Mr Waters the whole time.
PN1191
And so we say that her evidence that Mr waters didn't hit Ms Schroter in the face with the tape recorder, we say shouldn't be believed. And we say that Ms Schroter's evidence that she was hit in the face by Mr Waters with the tape recorder should be preferred. And again we make the submission that Mr Waters - Mr Waters is an official of the union. It would have been well within the power of the CPSU to call Mr Waters to give evidence in this matter. And in fact, if you go to Ms Lillis's evidence as to why Mr Waters was there on the day, at CPSU1, her statement at paragraph number 32, Ms Lillis says:
PN1192
The reasons Mr Waters was accompanying me on the visit was to act as a witness given my concerns about the behaviour of Ms Schroter.
PN1193
And indeed when that issue was put to Ms Lillis in cross-examination, she confirmed, paragraph number 1466 to 1468, that Mr Waters was there as a witness. Now if Mr Waters was there as a witness, we would say it adds to the inference that if Mr Waters was not called to give evidence as to what he witnessed that day, when that was his specific purpose for being there, that we say Mr Waters' evidence would not have assisted the union in its case and would not have corroborated Ms Lillis's version of events. So we say in that regard Ms Schroter's evidence should be preferred.
PN1194
We also make the submission, Commissioner, that a corroborating factor as to the view of the inappropriateness of the behaviour of the CPSU officials, is the fact that the CPSU didn't bring proceedings to either this Commission or the Federal Court, despite their alleged view that Telstra was hindering their right of entry. And we make the submission that that was because they knew that their behaviour was inappropriate and they didn't have clean hands. And those again were matters of subject of cross-examination on paragraphs number 1408 to 1418, and 1453 to 1545, where Ms Lillis did express the view that Telstra had hindered their right of entry under the Act. But conceded that they hadn't made any application to this honourable Commission or to the Federal Court.
PN1195
Commissioner, dealing with the views of the employees, Telstra tendered statements from six employees, and they are at exhibit T2, and three agency staff, as to the preference not to be interrupted on breaks or approached by the union in the lunch room. Now this evidence was uncontroverted, and the CPSU chose not to challenge the evidence or cross-examine the witnesses. In fact at transcript paragraph number 124, clearly an offer was made by Telstra to have those witnesses available, if required, for cross-examination. And at paragraph number 847, Mr Veenendaal indicated that the union chose not to cross-examine those witnesses. So we would say that those uncontroverted statements of the staff should go as to the views of the employees.
PN1196
Now Ms Lillis did suggest that she had been told by Ms McDonald that some of the staff had been uncomfortable when asked by Ms Schroter to give evidence. And that was at paragraph numbers 1147 to 1148 of the transcript. And we say, well, that is - it is certainly not weighty evidence at all, Commissioner, particularly given that it is evidence of Ms Lillis that Ms McDonald told her that people had told them something. So the only thing we say that Ms Lillis could assert, was that Ms McDonald had told her something.
PN1197
On a test of admissibility, we understand the Commission is not bound by the rules of evidence, but we say they should be used as a guide. We say that clearly under the rules of admissibility, it would only be - that would only be admissible to assert the fact that Ms McDonald had made that statement. We would also question whether it would be admissible on the basis that Ms McDonald was actually called to give evidence and could have given at least first hand hearsay evidence, rather than second hand. But at no stage did the CPSU choose to give any corroborating evidence from Ms McDonald, or corroborate - or indeed provide the sources of those statements.
PN1198
Dealing with the issue of the secret ballot, and Telstra's position all along has been pretty clear on the issue of the views of the employees that we take the views of employees seriously, in some cases, and we are quite happy to admit that in some cases we can't satisfy the views of some or, you know, a majority of employees. In some cases we can satisfy a majority, not satisfy a minority. In some cases there will be one or two people who will be disappointed with our decisions. That is an unfortunate fact of life in that, you get more than two people in a room, and generally there will be something upon which they disagree.
PN1199
But we do say that the views of employees, in this matter particularly where the union are seeking to have the right to enter the premises and to enter the lunch room to speak with employees, we say the views of the employees are important. And we made the submission to the Commission that the views of the employees would be important regardless of whether there was one person who objected to the union's presence in the lunchroom, or there was everyone in the centre.
PN1200
Now as it turned out, the secret ballot, and the Commission knows the results of the secret ballot. There were 64 employees who have sent ballots. Thirty-two of those were not returned. And I might add I would include in one of those, although I can't say for sure, but it is a pretty fair chance that Ms Schroter is not one of those, because she would have been overseas at the time of the ballot being conducted. Thirty-two weren't returned; that is 50 per cent. Three expressed no preference; roughly 5 per cent. Eight expressed a preference for the lunchroom. That is about 12 and half per cent of the total, or about 34 per cent of the staff who have a preference. And 21 said that they would prefer the conference room - a conference room. And that is about 33 per cent of the total staff. And 66 per cent of the staff with a preference.
PN1201
Now, we would say that is a clear majority, two to one majority of those who have a preference favouring the use of the conference room. We would say that is consistent with Ms Schroter's evidence as to the views of staff. And that was put at paragraphs number 841 to 842 in the transcript. The other thing we would say about in relation to the secret ballot, Commissioner, was, you might recall there was a bit of - there was some discussion as to the statement, or the questions that were to be asked. And at paragraphs number 1037 to 1038, we had some discussion, Commissioner, and it was that there was an issue about who goes first. Which one do you put first, the lunch room or the conference room.
PN1202
And the suggestion that I made to the Commissioner was that, in order for neither of us to feel like we have been particularly hard done by we might, you know, put the names into a hat and draw them out. Now as it was, I don't know what process the Commission conducted, but in any event the conference room, which was - came second on the ballot - we don't put it as being a bit matter in the Commission's mind as to - but what we say is that there shouldn't be any suggestion that there was a skewing of the results in favour of the conference room. In fact we would say, if anything there should be a suggestion that if the results were skewed, they were more - people were more likely to go into the lunch room, tick the lunch room, rather than tick the conference room.
PN1203
And we think perhaps the screening question may have weeded some of those out. But we still raise the point that it is something that can go to the Commission's mind to just give another further reassurance that the Commission has genuinely got the views of employees here.
PN1204
THE COMMISSIONER: I am not sure that I am comfortable about assuming a donkey vote.
PN1205
MR TRINDADE: Commissioner, I don't propose to be a statistician. I am sure Mr Veenendaal will be able to give you all the weird and wonderful explanations of these things. And perhaps pre-empting him, I would say - - -
PN1206
MR VEENENDAAL: I don't know about weird.
PN1207
MR TRINDADE: - - - the Commission should simply look at the simple fact. Eight people say the lunch room, 21 people say the conference room.
PN1208
THE COMMISSIONER: Indeed. Yes.
PN1209
MR TRINDADE: There is another issue and it is something that we raise today, and we don't raise it as an issue of great note. We raise it probably more out of courtesy for the Commission, because it concerns the direction that the Commission made about people not expressing their views to staff.
PN1210
THE COMMISSIONER: Yes.
PN1211
MR TRINDADE: Commissioner, I hand up if I may a copy of an e-mail that was sent by the delegate - the CPSU delegate in this matter, Ms McDonald. You will note, Commissioner, it is actually the second page of an e-mail. I have not provided the first page on the basis that it would identify who has forwarded that on to management. And I don't suggest - well, I would certainly hope that there wouldn't be an issue of reprisals, but we just thought out of prudence we wouldn't. I do have the original e-mail, if the Commissioner would like to view that to satisfy the Commission that it is in fact - has been forwarded on.
PN1212
But this e-mail was an e-mail, we say, provided - sent by Ms McDonald to people she describes as members and friends on 7 May. So it is after the Commission's directions. And if the Commission will recall, I did raise the issue in submissions, this is at paragraph number 855 to 856, to make it very crystal clear that that applied to delegates as well. And I believe, the Commissioner's words were somewhere along the lines of, of course. The statement by Ms McDonald in her e-mail to members and friends:
PN1213
There is no such thing as a free lunch. Ironic, isn't it? I spent Friday in the AIRC being cross-examined by Telstra advocate. The issue being debated ...(reads)... I won't be attending the presentation today.
PN1214
Now, we would say, Commissioner, that that - and, you know, it is unfortunate we don't know the extent of the distribution and to who that was, and there is no way of us knowing whether that actually influenced anyone in their view as to how they voted on the secret ballot. We would say though - - -
EXHIBIT #TELSTRA10 E-MAIL FROM MS McDONALD DATED WEDNESDAY, 07/05/2003
PN1215
MR TRINDADE: But we would say, Commissioner, that that was contrary to the directions given by the Commissioner. In fact, we put to the Commission that we would put a brief statement out to staff just saying that we have been in the Commission, the Commission said that was fine. I note that CPSU put a similar statement out. I have no issue with that at all. What I would say to that is that though that we talked about cruelling the pitch, as it were, and saying to the - you know - giving an indication of people's views before the Commissioner sought the views independently on the day.
PN1216
And we would say that this was, if not a deliberate attempt, it was certainly an inadvisable - and reckless of the Commission's direction. Now that is obviously a matter for the Commission to consider as to what flows from that. The reason we put that to the Commission is to say that, if there is any suggestion that in some way the ballot doesn't reflect the views of staff and it is in fact favourable to Telstra, we would say, well, this is something we put to you to say that perhaps the 8 to 21 may have been less than 8 to 21, if - and I don't - we can't make the suggestion, we don't know.
PN1217
The other thing I would like to say in relation to that is that it is also quite misleading this statement, because the original message says very clearly:
PN1218
Lunch, chicken and salad will be provided tomorrow to launch some Telstra features. To get your free lunch, come to the conference room and watch a presentation from ex staff member, Vanness Wong.
PN1219
So not only has Ms McDonald got the wrong end of the stick and thought it is in the lunchroom, she has then used it to try and have a go at Telstra for being inconsistent. The other thing we would say is that, on that issue of whether the conference room is a place where people can eat, well, there is evidence on that, that that was - that that is something that it is used for. Conference room is issued for a place where people can have lunch time - a lunch time meeting where lunch is provided.
PN1220
THE COMMISSIONER: But you don't go so far as to say that lunch will always be provided, if they choose to eat there?
PN1221
MR TRINDADE: No. No, indeed not. There is very few opportunities for a free lunch these days, Commissioner.
PN1222
THE COMMISSIONER: Yes.
PN1223
MR TRINDADE: Another issue we would like to raise just in relation to the views of staff is that during cross-examination, this is at paragraph numbers 385 to 388, Mr Veenendaal, cross-examination of Ms Schroter, Mr Veenendaal appeared to suggest that, you know, it could all be solved pretty easily by the nine staff who didn't like the union being in the lunch room using the fish bowl or going outside the office. One, we would say that was a pretty unsustainable suggestion anyway, and we would say it is inappropriate, given that the lunch room is there for staff to use for lunch. We would say though, when you look at the number of 9, if you are then looking at the number of 21 employees, it starts to become an even more unsustainable proposition that was being put.
PN1224
Commissioner, on the issue of - dealing with the issue of health and safety, we simply say that the evidence of Ms Schroter that staff used their breaks to rest, and that is important in the call centre environment, was uncontested. As was the evidence that Telstra doesn't hold meetings in the lunch room for that very reason. Exhibit Telstra 1 at paragraphs 9 to 11. We would say clearly the object of a rest break and a lunch break is for staff to have a rest, have some sustenance and that an order which seeks to preserve the right of those staff to be unmolested during those breaks is something that should weigh in favour of the order sought by Telstra being made.
PN1225
Commissioner, dealing with the legislative regime of division 11A of part X of the Act and also of the Act generally, we say the Act provides permit holders with an invasive power to enter premises beyond rights of other persons. And we say that in doing so the public interest and the interest is that those powers be used responsibly and reasonably. We don't think that is or should be a contentious submission to make. We say that of all the factors that have been raised and all the evidence that has been raised show that the union have been seeking to exercise these rights through their permit holders in an unreasonable and irresponsible way and a way that is contrary to the interests of staff.
PN1226
We also say that there are other principles in the Act and two of the fundamental principles we would say in the Act are the avoidance of industrial disharmony. The Commission is here to help resolve industrial disputes. The Act is about trying to resolve industrial disputes.
PN1227
THE COMMISSIONER: I won't join you in that discussion.
PN1228
MR TRINDADE: And we say in relation to that, Commissioner, that clearly in this case that the order we seek is a sensible, it is a practical and it is a reasonable way to resolve the issue in dispute. The other issue we raise is the issue of freedom of association because we do hear freedom of association trumpeted by the unions often and to the extent that they say it is a very important principle set out in our Act we agree wholeheartedly with that. But freedom of association doesn't only cut one way, it is not freedom to join a union. It is freedom to join a union or freedom not to join a union. And that is an important factor and the union may disagree, they may say there is not an interest in that but the Act says there is. And we say that people have a right to be able to enjoy their lunch breaks without being badgered and pestered. If they want to come and talk to the union, if they want to be convinced - - -
PN1229
THE COMMISSIONER: But you see - can I just ask you to pause there for a moment. You are asking for an order because of conduct and the particular circumstances and you have just said to me that the Act provides a very invasive power for a union official to come in. Wouldn't that tend to lead to the conclusion that if freedom of association has any meaning whatsoever then the rights that that purports to confer must be fully capable of being exercised conveniently and easily by those members of the organisation otherwise it constitutes no right and no freedom at all?
PN1230
MR TRINDADE: And I agree with that proposition, Commissioner. As long as it is coupled with the other proposition that there is also - the flip side applies and that people who choose not to be a member of the union should not be subject to harassment, should not be subject to badgering, intimidation, any of those things - - -
PN1231
THE COMMISSIONER: No, I understand that but it doesn't follow, does it, that simply because there is freedom of association ipso facto the union can't come into the lunch room?
PN1232
MR TRINDADE: Indeed it doesn't and that is why - but we say it is a factor when determining - and issues of appropriateness because what we say is the Commission has been empowered by the Act to deal with these sorts of disputes and it is a factor that the Commission should weigh up. And it is certainly a factor that cuts both ways, Commissioner, and we don't have any problem with that because we say on the merits and on the preponderance of the evidence and on the basis of the submissions made we say that it favours the interpretation we put on the importance of freedom of association. We recognise that.
PN1233
And we say that the using of the conference room allows free and easy access of people if they want to join the union, if they want to have discussions with the union, if they want to come and talk to the union because they are members or they are interested in becoming members, we say that nothing in the order we seek prevents that in any way.
PN1234
THE COMMISSIONER: No, but - - -
PN1235
MR TRINDADE: And in fact having a private room where they have discussions would be something that would enable those sorts of discussions to occur more readily, we would suggest.
PN1236
THE COMMISSIONER: Yes, but it is not your role to be paternalistic towards the union and its members is it? They are given a right and they have a presumption in their favour under the legislation that they can enter. Now, that presumption simply can't be rebutted under this guise of freedom of association can it?
PN1237
MR TRINDADE: Well, certainly the right to enter but we say the Act doesn't - - -
PN1238
THE COMMISSIONER: And to consult in a way which it considers appropriate?
PN1239
MR TRINDADE: Well, the Act didn't actually specify that the union have a right to discuss. It doesn't specify they have the right to remain. The wording of the Act says they have a right to enter for the purpose of holding discussions.
PN1240
THE COMMISSIONER: Yes.
PN1241
MR TRINDADE: So we say there is a lot of things that are unsaid in the Act and the Commission is charged with the task of when the parties bring the dispute to look - - -
PN1242
THE COMMISSIONER: Yes, to resolving that.
PN1243
MR TRINDADE: Of resolving that.
PN1244
THE COMMISSIONER: Yes, I agree, but I was looking at the general proposition and the general proposition can't be, can it, that the union is in the best position to decide how it wants to exercise its rights under the Act and that judgment that it makes can't be automatically rebutted by the invocation of the concept of freedom of association and you have not sought to do that in this case.
PN1245
MR TRINDADE: And, indeed, I don't think we concede that the union is in the best place to decide how to exercise - - -
PN1246
THE COMMISSIONER: No, I know you don't.
PN1247
MR TRINDADE: - - - its rights. And I think that - - -
PN1248
THE COMMISSIONER: But there is a line of authority to that effect, is there not?
PN1249
MR TRINDADE: Indeed, and, Commissioner, there is a line of authority, indeed, it is a line of authority - - -
PN1250
THE COMMISSIONER: Not just me - - -
PN1251
MR TRINDADE: - - - of the Commissioners but part of that line.
PN1252
THE COMMISSIONER: - - - although it is being followed, yes.
PN1253
MR TRINDADE: But what we would say in relation to that is that the Act does not provide an unfettered right, it doesn't say that - explicitly say the union has the right to go wherever they like.
PN1254
THE COMMISSIONER: No, it constrains it in this way, does it not. It constrains it in terms of notice.
PN1255
MR TRINDADE: Yes, it does.
PN1256
THE COMMISSIONER: And in terms of the operation of the business.
PN1257
MR TRINDADE: And it does but it leaves a lot of things unsaid and that is, I think, a submission that, I am sure, Mr Veenendaal will advance that they have got a right, it doesn't say they can't do it and therefore you should not make the order. And we say that that submission is a submission that does not appreciate the reality of the Act, that is, that the Commission is given power to deal with these issues. But what we would also say in respect to that is that - I think the expression was, you know, we can't be - take a paternalistic attitude towards the union and its members. In relation to the union and its members, no.
PN1258
THE COMMISSIONER: Or those eligible.
PN1259
MR TRINDADE: In relation to our staff though I would have thought that we would come under a degree of criticism from the Commission if we did not take a paternal view of - in some respects and I don't mean paternal in the pejorative sense that people use it.
PN1260
THE COMMISSIONER: No.
PN1261
MR TRINDADE: But in terms of, these are our staff - - -
PN1262
THE COMMISSIONER: Being genuinely interested, I am prepared to accept.
PN1263
MR TRINDADE: And in fact we would say on the evidence of Ms Schroter - sat there in the witness box and gave contested evidence, she was challenged under cross-examination and what came through was a genuine view that she was trying to act in the best interests of the employees at the site. Concerned for the welfare of her employees, concerned for their health and safety, concerned for the views that they had expressed to her. And we would say that that was something that Ms McDonald, when she gave evidence, indicated that Ms Schroter had a good relationship with most staff and, you know, had not seen her being rude or abusive to people, a civilised working relationship with Ms McDonald.
PN1264
We say Ms Schroter was - what we would put up as being the model of a good manager. Concerned for her staff, interested in hearing what their views are and where they felt the union was exercising a right inappropriately, concerned enough to raise the matter and to bring it before this honourable Commission.
PN1265
Commissioner, I would like to make a number of submissions as to the evidence. We have already made a number of submissions as to the evidence but some general statements as to the evidence. In relation to Ms Schroter, we say, that Ms Schroter was a witness of credit and should be believed by the Commission. Ms Schroter was subject to extensive cross-examination and we say that, on the balance, and if you look at her evidence and examine it closely, you will find her to be a truthful, consistent and compelling witness. And we would say that the Commission's own observations should support that view.
[11.05am]
PN1266
We also say that in the evidence given by Ms Lillis and Ms McDonald that she was subject to a fair degree of personal attack about her motivations and alleged prejudice against the CPSU. We say, however, that her evidence was credible and that her motivation which came shining through her evidence was that, the wishes of the staff and the balancing of all the appropriate factors. And we submit that where there is a inconsistency or conflict between the evidence of Ms Schroter and Ms Lillis or Ms McDonald, that her evidence should be preferred. In relation to Ms Lillis, we say, Ms Lillis was a witness who was reckless with the truth.
PN1267
And we say that where her evidence is in conflict with Ms Schroter's, Ms Schroter's evidence should be accepted. And we do want to go through a few examples, Commissioner, because we do say this gives a clear idea of why we say Ms Lillis was reckless with the truth. In relation to an issue of whether Ms Schroter had advised her about alternate arrangements for her visit on 9 April, there is exhibit T4 which was referred to in paragraph numbers 1271 to 1277 of the transcript. Ms Lillis sends out an e-mail to members saying she was not advised of alternate arrangements.
PN1268
But then when she was shown exhibit T5, which was a letter from Ms Schroter sent before that e-mail was sent out advising her of alternate arrangements, she did admit that she got the letter but she still gave evidence that, in her view, she was correct because she had not been told specifically what the alternate arrangements were. And we say, Commissioner, that is simply not a credible response. In relation to whether she signed in when she came on 9 April, she signed into the book that people are required to sign in when they enter the premises.
PN1269
In her statement, CPSU1, paragraph 19, she said that she didn't sign in. When she was shown exhibit T6, which was the sign-in book that did not have her name, she said, well, it appears that I didn't sign in and that was at paragraph number 1298. But then she goes on to say, I didn't sign in because I didn't enter the site and in fact at paragraph numbers 1300 and 1302 she says, "I only entered the fish bowl." But then shortly after that in her evidence - so that was paragraph numbers 1300, witness, "I did not enter the site though."
PN1270
And then the Commissioner asked her a question and you didn't hear the answer and she said:
PN1271
I did not enter the site on this day though. I went to the fish bowl to hold discussions with Ms Schroter and then exited the site.
PN1272
Very clear evidence, you know, I did not enter, I did not enter twice, I only went to the fish bowl. But then we go down to paragraph number 1313 and 1315 and I say, well - and I ask the question, did she know what the designated area was. And she says - and I said:
PN1273
And yet you refused, well, you said you didn't want to hold it in the designated area?
PN1274
She says:
PN1275
Well, I walked down to the designated area with Ms Schroter viewing the area - it is in the middle of the workplace, just set up a table with chairs around it. I viewed the designated area as inappropriate to hold union discussions.
PN1276
And in 1314 she says:
PN1277
She showed me after I had entered the site, had a discussion with her and then she escorted me there.
PN1278
Now, again, we say that is just clearly evidence of a witness who is reckless with the truth. Adamant one minute that she didn't enter the site, the next minute, adamant that she did enter the site and that she was shown to the area. Similarly, we say, in relation to the induction, whether she had an induction on 26 July. Paragraph number 1506 says she didn't do the induction. But then, when presented with the piece of objective evidence, the induction form that she signed, the story changes. It suddenly becomes that she signed the form but, you know, she didn't really have the induction. That was at paragraph numbers 1508 to 1517, and the induction form was Exhibit T8.
PN1279
In relation to the issue of whether staff can be seen entering the conference room, in her statement, CPSU1, paragraph 65, she says that it is visible to all staff if you are entering the conference room. When it was put to her in cross-examination at paragraph number 1643 she admits that only some people could see it. Similarly with the use of the conference room, in paragraph 65 of her statement, CPSU1, she said it was uncommon for staff to use that, but in cross-examination, paragraph 1648, she admits that she doesn't know that. In relation to the fish bowl, and there was quite extensive cross-examination as to whether, you know, her view that people could - that you could see into the fish bowl. She says - in cross-examination Ms Lillis said, at paragraph number 1384 that people can be seen in the fish bowl, but then later on, at paragraph number 1757 she said that she had never actually seen anyone in the fish bowl. We say that those are some examples, but the overall impression of Ms Lillis' evidence was that she gave evidence that suited her case.
PN1280
She didn't bear fulsome and credible witness to the events, and we say where her evidence conflicts with Ms Schroter's, that Ms Schroter's evidence should be preferred. In relation to Ms McDonald, we say that Ms McDonald was simply not a truthful witness, and we really say that Ms McDonald's evidence should be largely disregarded, but certainly where her evidence is in conflict with Ms Schroter's, Ms Schroter's evidence should be accepted. Some examples to support this, and certainly we would say that the Commission should take into account the entirety of her evidence, but perhaps some examples.
PN1281
In her statement, CPSU at paragraph 12, Ms McDonald says that:
PN1282
As a result Telstra refused to meet with the union in order to generally discuss the issue of bullying and the matter was not resolved.
PN1283
And we say - and if you look at the paragraphs of 6 to 12 of Ms McDonald's statement, they really didn't have any relevance to the issue at hand, we say, and they were simply put in there to create an adverse impression of Ms Schroter. The manager had lots of allegations of bullying and doesn't do anything about it. But when the documents that - in fact, the documents that she herself exhibited to her statement were put to her, she conceded on at least two occasions that the documents did not bear out a refusal to meet, and they are at paragraph numbers 1854 and paragraph number 1862 to 1866.
PN1284
Similarly her evidence in relation to the whole harassment issue was very confused. She said under cross-examination, paragraph number 1855, that, you know, the members wanted to keep the issue local. But then it was put to her, and she didn't really have a suitable answer for this, Commissioner, that it wasn't really a way of keeping the matter local by sending - instead of sending a letter to - another letter to Ms Schroter, keeping it local, in fact she sent it off to Mr Sturzaker, a national manager based in Sydney, and that is dealt with at paragraphs number 1855 to 1859.
PN1285
The other major aspect of Ms McDonald's evidence was this conversation she had at the Christmas party with Ms Schroter, and we say Ms Schroter gave credible evidence as to what occurred at that Christmas party, and in fact, when you look at Ms McDonald's statement starting at paragraph number 13, at CPSU2, it is a reasonably uncontentious, it is a pretty mild statement of events. A conversation took place, the conversation covered broad ranging issues regarding the centre. There was a statement which she purports Ms Schroter said, of:
PN1286
You are in for a tight time over the next six months. The CPSU will take over the office. They are a highly respected union and don't cause any trouble.
PN1287
And her suggestion is that she took that mean that Ms Schroter was going to give the CPSU a hard time. Not that she - she didn't say it, but I took it to mean that, and that is really all she has to say about that statement, and yet, under cross-examination and testing of that view, her evidence changed quite remarkably. She said, and I will just go through a few things. She said it wasn't really a conversation, that Ms - that was at paragraph number 1889. Same paragraph, she said Ms Schroter had had a lot to drink. In paragraph number 1881, 1893 and 1896 she says that she said very little, and then she embellished upon that by saying very, very little.
PN1288
I have put to her that, you know, she sat there virtually mute. That was at paragraph 1895, which she agreed with, and that Ms Schroter just spilled her guts. You know, this was what was originally in her statement described as a conversation covering broad ranging issues, became this drunken rambling monologue of Ms Schroter spilling her guts about her evil designs for - against the CPSU. But then later on, and I believe this was in response to some re-examination by Mr Veenendaal, she confirms it was a general chat. That is at paragraph number 1933, and when it was put to her that this is all very curious and that - why it wasn't in her statement, she says that she was advised to leave them out because they were not relevant. That is at paragraph number 1897.
PN1289
She also claimed to have contemporaneous notes, that was at paragraph number 1911, but those notes weren't exhibited to her statement. What we say in relation to that is that it is apparent from all things that Ms McDonald's evidence, we say was made up off the top of her head as she went along. It is not credible evidence. She gave evidence which she believed would suit her case, she didn't bear fulsome and credible witness, and her evidence was designed to discredit Ms Schroter with baseless allegations of harassment of members. But under cross-examination she admitted that Telstra had not refused to meet with the union, and that it was the CPSU who hadn't progressed the issues.
PN1290
She also - her evidence was also designed to allege that Ms Schroter admitted to favouring the CEPU over the CPSU. Not in her statement, but when she got into the role in cross-examination, and in fact, we would say that that - her answers in the witness box were entirely inconsistent with someone who would sit there, virtually mute, not saying a word in a conversation. She was a forthright witness who gave her evidence in a forthright manner. She was not someone who required a prompting or coaxing. She didn't sit there and answer yes or no. She gave her evidence voluminously, and we say - and it was put to her that she told the Commission a tissue of lies and she denied it, but we assert that. We assert that she told the Commission a tissue of lies and that really her whole evidence should be disregarded, and particularly in relation to that conversation of the evidence of Ms Schroter, at paragraphs numbers 202 to 205 should be preferred.
PN1291
Commissioner, dealing with the issue of the site inspection which the Commissioner conducted, we would simply say that the site inspection to our mind clearly would bear out the evidence that was given by Ms Schroter, and it clearly goes against the evidence given by Ms Lillis as to the suitability of the rooms, where people can be seen from, the distance between them, all of those things. We don't propose, unless the Commission wants us to make any submissions or wants to ask any questions on that point to go into that in any detail, other than to say that we think that the exhibit - the attachment SJS1 to Exhibit T1 is instructive, and with the Commissioner's own recollection of the site visit should play a very fundamental part in the Commissioner's considerations.
PN1292
In relation to the evidence about the allegation, and we say it was a sort of tit for tat allegation of Ms Schroter being badly behaved, we say Ms Lillis gave evidence of bad behaviour by Ms Schroter. CPSU1, paragraph 53, and in the transcript at paragraph number 1610. We say that wasn't credible evidence and should not be believed. We also make some submissions that on at least two occasions Ms Lillis had a witness there, and she had a witness there, someone there who was specifically called to be a witness. Mr Richardson, on one occasion, and it said that he was there to be a witness at CPSU1 at paragraph 25.
PN1293
He was there to be a witness because of Ms Schroter's behaviour.
PN1294
And in evidence Ms Lillis said that - at paragraph number 1611, Mr Richardson was there and he saw that behaviour. But Mr Richardson was not called to give evidence. He is clearly a witness in the party's camp, in the CPSU's camp, and we say that a Jones v Dunkel type influence should clearly be drawn that his evidence would not have corroborated Ms Lillis' evidence, and we say in that regard Ms Schroter's evidence should be preferred. Similarly we say in respect of Mr Waters. Mr Waters, CPSU1 paragraph 32, Ms Lillis says he was there as a witness because of her behaviour, Ms Schroter's behaviour.
PN1295
In fact, you know, took a tape recorder to record that behaviour, pick up the tone. But Mr Waters was not called to give evidence, and we say again that should lead to the Commission drawing an inference that Mr Waters' evidence would not corroborate Ms Lillis' evidence or support the CPSUs case. Ms McDonald gave some evidence in her statement, CPSU2 at paragraph 6, as to Ms Schroter's behaviour. Talking about throwing a tantrum - these are comments that she alleges that people have made to her. Ms Schroter threw a tantrum, was rude, stamped her feet, they were embarrassed. Now, we would say in relation to that that this is evidence that in the Court would be clearly inadmissible. We say that the Commission should give very little weight to it, if any.
PN1296
It is not attributed. The statements aren't attributed to any source, and the Commission may recall that during the early stages of the transcript, at paragraph number 162, we submitted, Telstra submitted, and I will just quote briefly what I submitted to the Commissioner there:
PN1297
Some of the events we are likely to hear from Ms Lillis and perhaps Ms McDonald, that there were people who do wish to use it...
PN1298
That was about the lunch room:
PN1299
There have been no statements tendered by any of those employees by -
PN1300
and it says here "Mr McDonald". I presume it should be Ms McDonald -
PN1301
So in respect of those things we will say that obviously some point of the evidence tendered on those things, particularly bearing in mind section 75 of the Evidence Act, which obviously is not binding on the Commission, and it is not being bound, but we would say heavily persuasive, that when parties seek to rely on hearsay evidence that the evidence should be inadmissible unless the source is attributed.
PN1302
And we talked about later on referring to the ruling of Goldberg J in CPSU v Tenix Defence Systems, so it is a matter involving the CPSU, they should be aware of it. But we put them on notice that we would be making that submission in relation to statements that were not - the source was not attributed. I might, if I may, hand up a copy of that decision. It is a ruling of Goldberg J of the Federal Court, 20 January 2003, in relation to evidence provided by the CPSU, where the makers of the statements are not attributed, and it deals with the general rule in the Evidence Act that hearsay evidence is not admissible.
PN1303
But the exception in section 75 - and we note that the exception only applies to interlocutory proceedings in the Court. Now, obviously if the Commission is not bound by the rules of evidence, then the Commission may consider and accept exemption to be something that might be relevant, even in a final hearing. But it talks about that:
PN1304
In an interlocutory proceeding the hearsay rule does not apply to evidence if the party who educes it also educes evidence of its source.
PN1305
We say that was no evidence given of its source. The union had an opportunity to do that. It had an opportunity in its examination-in-chief of Ms McDonald. Clearly put on notice of that. That is at paragraph number 162, right at the start of the proceedings, and chose not to, and we say in those circumstances that - we say the Commission should either disregard that evidence in entirety or place so little weight on it as to render it really having very little weight to the evidence and not being a factor.
PN1306
We also say that it was put to Ms Schroter that she behaved in that way, and she denied it, and we say that is the only piece of evidence that has any weight before this Honourable Commission in relation to her behaviour, and should be accepted. Commissioner, I don't know whether - there were some issues that I wanted to raise just briefly in response to some of the issues raised by the CPSU in their submissions. Given that those submissions haven't actually been received in and obviously submissions that are prepared before the parties hear evidence may not survive the evidence, and particularly in light of the secret ballot.
PN1307
I am in the Commission's hands whether you would like me to go to those now. They are fairly brief, although it may be more appropriate to deal with them in reply, after Mr Veenendaal has actually made those submissions or resiled from any ones that he might wish. If the Commission pleases.
PN1308
THE COMMISSIONER: Very well. Thank you. Mr Veenendaal, do you want to take a five minute break so that you can organise your papers?
PN1309
MR VEENENDAAL: Yes. That would be appropriate. Thank you, Commissioner.
PN1310
THE COMMISSIONER: Very well. I will adjourn for a brief moment.
SHORT ADJOURNMENT [11.26am]
RESUMED [11.53am]
PN1311
THE COMMISSIONER: Topped up our caffeine levels, have we?
PN1312
MR VEENENDAAL: Well, I didn't unusually, Commissioner. I was concerned it might be a genuine five minutes.
PN1313
THE COMMISSIONER: I see.
PN1314
MR VEENENDAAL: I wasn't in a position where I could gulp my coffee down in five minutes. Commissioner, in this matter Telstra proposes the making of an order which if granted will prevent Union officials who enter the Maroochydore site from accessing the lunch-room and restrict access to Union officials who enter the site to the conference room only. It goes without saying that we oppose the grant of the application and the orders that are sought.
PN1315
THE COMMISSIONER: Will I mark your written submissions?
PN1316
PN1317
MR VEENENDAAL: Given that that has been done, Commissioner, I would at the outset advise the Commission that there will be some minor variations to the submissions that we have made and although the outline was reasonably fulsome we are going to expand fairly greatly on some of the areas that we made submissions in respect of and I also foreshadow that -I think we foreshadowed previous matters that previous hearing dates that some of the - some of the matters that we sought to rely on in our outline would be varied in terms of our actual submissions.
PN1318
If you would just bear with me for a moment, Mr Trindade has just handed me something. Yes, Mr Trindade has pointed out to me that some time back in March I think we did replace a paragraph in the submissions, that was paragraph 27 from recollection. We did provide a copy of that to the Commission so if I could just indicate to the Commission that the exhibit that has just been marked, which is our outline, should be marked as amended. If it pleases the Commission.
PN1319
THE COMMISSIONER: Thank you.
PN1320
MR VEENENDAAL: I thank Mr Trindade for reminding me of that fact. Now, given, Commissioner, we oppose the application, I will say one thing about that and that is if the Commission is against Telstra in respect to the applications, subject of course to the provisions of section 120 of the Act, that would obviously have a consequence that no order would be made and in our submission the dispute therefore would not be resolved. So what we propose to do, Commissioner, is tender an alternative order and I would like to tender that now.
PN1321
PN1322
MR VEENENDAAL: Thank you, Commissioner. I won't go into a great deal of detail, Commissioner, just save to say that obviously the parties are clearly identified at the top of the order. The order, particularly at paragraph 2, clearly specifies that the lunch-room is the appropriate venue at the premises, which is also clearly identified in terms of ensuring certainty of the order at 15 Beach Road, Maroochydore, Queensland. And it also provides, Commissioner, an alternate venue, which is the conference room, and that alternative venue was provided obviously at the request of the Union.
PN1323
And it is really done - the order is really produced in this form to ensure the position of privacy, which has been an issue which has particularly been a concern in Telstra, is dealt with. And what I could say to the Commission in respect of the order is that if there is an issue of privacy properly raised by the Union official or a member of the Union in respect to discussions that are occurring in the lunch-room, well, obviously it is appropriate if private discussions need to be held for those discussions to be held in a venue other than the more public lunch-room and as a result those discussions could be held in the conference room and that is why the order has the form of - the order takes that particular form.
PN1324
And in respect of the operative date, Commissioner, we are suggesting an operative date at paragraph (b) to be effective - for the order to be effective from today's date. Now, if I can just outline very briefly, Commissioner, the nature of the dispute - and stop me if you think I am saying something which is perhaps too detailed or something that the Commission is already so familiar with given that this matter has now been progressing for some months and you don't wish me to go into these matters, but I just thought it was appropriate to provide some brief introduction or summary by way of outline in respect to our submissions.
PN1325
Telstra asserts that the Union should use the conference room site, that is obviously a given. Telstra appears to rely on its policy on right of entry and an examination of criteria established pursuant to the policy, which then, in its view, enables a manager at a particular site to make a decision or determination and subsequently a direction against the Union official in respect to location. That seems to be one of the core foundations in our submission that Telstra appears to rely on, its right of entry policy.
PN1326
Part of its claim in terms of the merits of the application appears to be that in its submission some employees are disturbed by a Union presence in the lunch-room. It also says that Union officials who have conducted visits in the last 12 to 18 months at the lunch-room have conducted - or have behaved in an inappropriate fashion during the course of those visits. And it also seems to rely on an increase in numbers in the centre some time during the calendar year 2002 and it seems to say that that increase in numbers means that the conference room is a more suitable venue than the lunch-room given that there would be larger numbers of employees in the lunch-room.
PN1327
Now, obviously if I have done Telstra injustice in summarising its position in that way no doubt Mr Trindade will address those issues, but certainly that is my understanding of some of the principal or core parts of its applications. And I think it probably also relies on a particular, what I would describe as OH&S, incident at the workplace and that is the issue presumably relating to the failure of Union officials to turn off mobile phones on one particular visit on 26 July 2002 from my recollection.
PN1328
Now, if I can summarise the Union case. What we say is that the lunch-room is a suitable venue for use during Union visits. We say that we have a legislated plenary or general right of entry which entitles us as a right to access the lunch-room or in the alternate we submit that the lunch-room is incidental to a union's right of entry pursuant to section 285C of the Workplace Relations Act and therefore is the appropriate part of the premises that should be used for union visits.
PN1329
Or as a tertiary submission what we submit is that the lunch-room is the most appropriate venue to use and, I think, that submission probably relates to an extent to the concept of unreasonableness which is a concept that some Commission - decisions of the Commission - some Commissioners have formed a conclusion that this concept of unreasonableness in terms of the employer's position in respect to its alternative venue is a concept that should be factored into the Commission's exercise of discretion in the circumstances of cases that arise under section 285G.
PN1330
And in that respect if our submissions about the plenary or general right were incidental - of the lunch-room being incidental to the provisions of the legislation then we would submit that it is unreasonable for lunch-room access to be refused in the circumstances of this particular case. So - - -
PN1331
THE COMMISSIONER: I am sorry, I don't understand the difference that you seek to draw between a plenary, general or incidental right?
PN1332
MR VEENENDAAL: It might become clearer when I expand on the submissions - - -
PN1333
THE COMMISSIONER: Sure. If you are coming to it, please do so in your own time.
PN1334
MR VEENENDAAL: But essentially what we are saying is that even if the Commission was minded to consider that a venue that Telstra in this case has determined as the appropriate venue is a reasonable alternative, we would say that that conclusion that the Commission may draw about that is overridden by the provisions of division 11A.
PN1335
THE COMMISSIONER: Yes.
PN1336
MR VEENENDAAL: And we would say that there is a plenary or general express right, legislated right, for the Union to actually make a determination about the location upon which it holds Union discussions. So what I am submitting is that division 11A and the intention of Parliament pursuant to that legislation is and was at the time this dispute arose - provides that the union can determine the venue, save and except for the express legislated restrictions that the Parliament has provided in the Act and that particularly relates to residential parts of a particular premises.
PN1337
So that overrides, in our submission, this concept of whether a venue is an alternative venue provided by the employer or where the employer directs the union official to go to an alternative venue. It overrides that concept of reasonableness or unreasonableness. I will expand on this quite a bit, Commissioner, so it may become clearer when I get to the detail or the body of these submissions. We also submit by way of introduction that there are a number of issues that arise in this case and they are, and I have just dealt with this to an extent but I will use a focus, whether division 11A in fact does establish a plenary or general right of access to a premises which would not enable an employee to oppose restrictions to the access.
PN1338
This is not, in our submission, an argument which has been advanced substantially before the Commission and certainly hasn't been advanced in the way I intend to advance it today, so I think it is something that the Commission, in our submission, needs to consider as part of its decision appropriately in the circumstances of this case. We also say that some of the other issues, interesting issues, that arise in this case is how the views of employees who claim they are disturbed or how the views of employees generally by way of a ballot fits in to the overall scheme of the Act.
PN1339
And, thirdly, the application of Telstra's right of entry policy particularly in terms of the legislation or the legislative provisions of division 11A and this is something we are going to ask the Commission as part of this application to consider. We think it is important for the Commission to make - to provide some guidance to the parties on what the Commission considers the right of entry policy of Telstra and what place it has in respect of the legislation because clearly Telstra seeks to rely on that policy in a range of areas.
PN1340
And that has, in our submission, led to the created industrial disputes about location or other industrial disputes about right of entry more generally and we think that is a concern for us and we think it is appropriate for the Commission to deal with that as part of this application. So by way of introduction to conclude the introduction our case can be summarised as follows. We say that division A establishes this general or plenary right of access to Telstra's premises at Maroochydore and it follows therefore that Telstra cannot demand, direct or require the Union to use the conference room.
PN1341
If that is not accepted our secondary submission is that the Union has a right to enter any part of the premises of the employer that is incidental to its right to have discussions pursuant to section 285C of the Act. And we will be submitting that the lunch-room is incidental to the Union's right of entry under the Act because, firstly, there is a requirement under the Act that we have discussions only during the employee's breaks and the lunch-room is the room designated by Telstra for employees to gather during their breaks so therefore it is incidental to the discussions provisions at 285C.
PN1342
So if neither of those submissions - if the Commission is not minded to find for us in respect to either of those submissions, then we say the lunch-room is the most appropriate venue to hold discussions because Telstra's decision to designate the conference room for discussions in unreasonable. We will also be arguing incidental to that, as I foreshadowed earlier, that Telstra's reliance on its policy as a reason to determine that the conference room is appropriate is simply flawed. And that is because the policy is not lawful. The policy doesn't override the Act.
PN1343
The policy essentially has no basis at all and therefore should be disregarded by this Commission as a factor, a relevant factor, in respect to the grant of this application or decision of the Commission not to grant the application. And, as I say, we will be making some further submissions about that at an appropriate time. So for all of those reasons we will be submitting that it clearly follows that an order granting Telstra's right to determine the conference room - an order that establishes a right for Telstra to determine the conference room as the appropriate venue should not be granted.
PN1344
Firstly, I just want to deal with the issue of the existence of a dispute very briefly. Well, clearly we are not contesting that, Commissioner. I refer to paragraphs 19, 20 to 24 of our outline of submissions upon where we rely in respect of the terms of the Commission's jurisdiction to deal with the matter on those submissions - and I wouldn't say anything further about that because that is not issue, that is not contested by us. Now I turn to this question of the general or plenary right to enter the workplace and to determine the location pursuant to division 11A.
PN1345
I want to make it clear at the outset that this is not a jurisdictional argument that we advance. We don't argue that if the Commission was minded to find for us on the plenary or general right, we don't argue then that the Commission doesn't have a right to make an order pursuant to section 285G. This is not a jurisdictional argument. So we accept that the Commission can make orders for the conference room, for example, or for the lunch-room. There is no difficulty with that and that is not what we submit.
PN1346
What we say is that for the reasons that I am about to advance, that you should exercise a discretion not to because this plenary or general right exists. That is the thrust of the argument.
PN1347
THE COMMISSIONER: How would you ever make an order based on that submission?
PN1348
MR VEENENDAAL: I am not clear about your question.
PN1349
THE COMMISSIONER: Well, if you say I should exercise my discretion against making the order because the right exists, how would you ever make an order? The right exists if what you say is right. The Act says you can go in.
PN1350
MR VEENENDAAL: Yes.
PN1351
THE COMMISSIONER: How do you then resolve the dispute about the parties against the view of the Union?
PN1352
MR VEENENDAAL: I may be very difficult, Commissioner, and we say that the way the Act is - the construction of the Act and the meaning of division 11A clearly gives great weight to what the union says about location but an order could be granted against the union, for example, in an instance where the union seeks entry into a residential part of the premises.
PN1353
THE COMMISSIONER: Yes.
PN1354
MR VEENENDAAL: It may also be the case that an order could be granted where the union seeks to locate itself, for instance, in the middle of the workplace where workers are working and the employer submits that that is creating a disturbance in respect of work. I would think that would be an instance as well where the Commission would be saying, well, regardless of this right the context of the Act is that employees cannot be disturbed during work time so as a result I am going to make an order that the union cannot locate in the workplace, for instance, in the middle of a petitioned open workplace, and needs to locate in the lunch-room or the conference room or a meeting room.
PN1355
So they are two examples of where the Commission could make an order against the Union, Commissioner. Telstra, in our submission, must either own or lease the premises at 15 Beach Road, Maroochydore. In any event or in either event, Commissioner, Telstra therefore has a common law property right as an owner or lessee of a property to restrict any person's entry or access to Telstra's premises. That is the common law property right that Telstra has as an owner or lessee of a premises.
PN1356
What we are submitting here, Commissioner, is that if there was nothing else in the field of play then Telstra would be right in what it says here today. It would be right in saying, well, we can make you go in the conference room or we can make you in fact remain outside the premises because we have a common law property right as the property owner or lessees of the premises to do so. So what that would mean, Commissioner, is that they are in the same position as, for instance, the ordinary person in the street who, for instance, owns a private property in any suburb or any residential part of Melbourne or Sydney or anywhere else in the country.
PN1357
That property owner has a common law property right to say if you come into my property and I tell you to go and you don't go you are trespassing, that is a common law property right concept. The difficulty with that argument is that there is something else in the field of play, Commissioner. There is a legislative code, that is division 11A, which is set up to deal with the issue of entry by the union to a premises occupied by an employer where we have members or persons eligible to be members and where there is an award that applies that we are a party to. A legislative code set up, that is in the field of play.
PN1358
So then you have to look at the statute and in our submission the statute subjugates, if you like, or renders nugatory the common law property rights that the employer would normally have. So the affect is that the Act overrides those common law property rights, that is division 11A. So what is happened is that the Parliament has turned its mind to what extent the property owner or occupier should be able to restrict the permit holder. The permit holder's right to enter, it hasn't said it is carte blanche. I accept that. It hasn't actually said it is carte blanche.
PN1359
What it has done is very clearly put a code into place, a legislative code, which restricts both parties in how they deal with this issue of right of entry. That is what it has done. What is has done is it has put in place a set of legislative arrangements which determine to what extent the property owner, in the case of these submissions, should be able to restrict the permit holder right to enter certain parts of the premises. So it has gone further, it has done that as well. And the code restricts both the permit holder and the occupier of the premises in terms of what each party can do.
PN1360
And it leads to the obvious question, well, what exactly has the Parliament said - and I want to spend some time dealing with this so obviously we need to look at the legislation not, in our submission, the Company's right of entry policy on this matter. We need to look at division 11A. And, in our submission, we really don't need to look at anything else in particular, it is only the Act that is relevant or certainly most relevant in respect of this concept of right of entry.
PN1361
And what the Act does, if you look at the Act, it very clearly provides an arrangement that gives a holder of a permit an express legislated right of entry to a premises controlled the by the employer to hold discussions with employees in certain circumstances, that is what it does. The Parliament has actually set the limitations. When you read the words in the ordinary sense, the ordinary statutory or industrial sense, it has set the limitations on the union's right of entry. And it has said the union has a right to hold discussions pursuant to section 285C which are limited by and only by the legislative requirements relating to the right of entry pursuant to sections 285C and 285D.
PN1362
Now, if I can just refer very briefly to our outline of submissions. If you look at paragraph 5 of our submissions, what paragraph 5 does is provide, if you like, that set of limitations on the permit holder: work being carried out to which an award applies; employees and members or eligible members; discussions held in breaks only; persons must be permit holders; persons must provide the occupier with 24 hours notice; permit holders must not enter any part of the occupiers' premises that is used for a residential purpose.
PN1363
Now, in our submission, we have done all - all of those things either apply in respect to the 285C components and in our submission have been complied with in terms of the 285D components. There is no evidence in these proceedings to suggest that, for instance, Ms Lillis is not a permit holder or Ms Lillis hasn't provided the requisite notice. In fact, the evidence of Ms Lillis is very clear and all of the notices have in fact been written notice - not a requirement of the Act incidentally, Commissioner.
PN1364
But nevertheless the Union, if you like, as a position to ensure certainty generally gives written notice. It doesn't have to but it does for the purpose, I suppose, of certainty, particularly in light of where we have a situation with an aggressive employer that seeks to assert, if you like, a different set of views about division 11A. So they are the legislated obligations, Commissioner, and they are the only obligations on the Union and in our submission we have more than met them on every occasion we have entered Telstra's premises at Maroochydore.
PN1365
Now, if I can just deal with the issue of location. The Parliament, as part of this legislated code, Commissioner, has turned its mind also to what restrictions it should place on the permit holder's access to the premises once the permit holder enters the premises. So there is all this code about entry, about notice, about having to be a permit holder, but once you are in the site, once you are in the premises, then the Parliament has also turned its mind and put in place a set of restrictions about where the permit holder can go once the permit holder is in the premises.
PN1366
And what the Parliament has done - at section 285D(3) has said that a person in exercising its powers pursuant to 285B or C, relevantly C in this case, is entitled to enter any part of the premises - sorry, is not entitled to enter any part of the premises used for residential purposes unless - and this is where the common law property right falls back in, unless with the permission of the occupier, which is interesting. So the Parliament is really, in the case of the residential part of the premises, re-establishing, Commissioner, the concept of the common law property right for the purposes of the residential component.
PN1367
And quite frankly it does it for very good reason. If the union was entering a residential hotel, Commissioner, and for instance was having discussions in the lunch-room, it is not appropriate for the union to go up to the second floor and knock on a person's door who is a client of that hotel and is staying there for business or leisure reasons, and try to enter that part of the premises, because that is a private part of the premises where a client is staying at the hotel for the purpose of - for whatever purpose the client seeks to stay.
PN1368
The Parliament has turned its mind to it and it said, "This is the only restriction we need to place on the permit holder once the permit holder has entered the premises."
[12.21pm]
PN1369
So the effect of this is that the Parliament is protected, if you like, if I can call it this way, the occupier's common law property rights in respect to that particular part of the premises. So, in our submission, it follows that for all other areas of the premises the occupier's permission is not required. It naturally, as a consequence, follows from the provisions of 285D(3) that the occupier's permission is simply not required to enter the lunch room, for instance, in the circumstances of this case.
PN1370
Now, in our submission, Commissioner, if the Parliament had intended to restrict our access to any other part of the premises it would have said so. Why wouldn't it have said so? It said so in respect of the residential component. Why wouldn't it have said so? Of course it would have said so and it hasn't. So it has turned its mind very clearly to the issue because it has said that about the residential part of premises and it has not said it about any other part of the premises.
PN1371
Now, in furtherance of that we actually say the Parliament has probably intended to go a bit further and if you look at section 285C its intention is probably that discussions should be held in the lunch room and we say that for a number of reasons. Firstly, if the Parliament had intended the lunch room to be a part of the premises that the union could not enter for any reason, supplementing the submissions I have just made, it would have said so.
PN1372
So once we have met these obligations, the 24 hours notice, the occupant - the person entering the premises being permit holder etcetera then in our submission we can enter and locate, at a location of our choosing, subject to one requirement which goes to the issue in respect of the question the Commission asked five minutes ago and that one requirement is that we do not disrupt work, that is the requirement, that is only criteria; legislated criteria, if you like, the Parliament has determined in division 11A. And, yes, Commissioner, that does impact on location but only to the extent that we are required to meet that obligation.
PN1373
Now, in our submission in respect of the lunch room, that is not an issue. The evidence from Ms Schroter was palpably clear, this is a leisure area, the lunch room is a leisure area, there is an Internet cafe there used for leisure. The lunch room is used for the purpose of having lunch and for people to be able to able to interact to get away from the phones. It is clearly a leisure area, it is not a work area, so that issue about disruption has no impact in respect to the grant of the union's order and the refusal of the company's order in respect of this particular matter.
PN1374
So what we say in summary there is that, within the confines of the restrictions that the Act imposes on the permit holder and that is within that code of restrictions, the permit holder has a plenary or general right of entry. That is a right to conduct him or herself properly and to conduct him or herself in accordance with the purpose to which the power is directed and that is to have discussions with employees. And, in our submission, without interruption from the employer and certainly without the employer telling us where we can or cannot go.
PN1375
I will deal with this a little bit later but no doubt the submissions of the company would be, yes, but the fact is, in their submission, the union hasn't conducted itself in an appropriate manner and I will deal with that a little bit later on, I am not ignoring it at this particular time, Commissioner.
PN1376
THE COMMISSIONER: Yes.
PN1377
MR VEENENDAAL: So, in our submission, to imply further restrictions such as additional location restrictions unnecessarily and unreasonably reads additional words into the Act which simply do not exist, they are not there, Commissioner. Now, there is some other evidence which, in our submission, assists us in our cause, in our submissions in regard to this particular matter and that evidence is the second part of the - when Peter - if I could just go back a moment, Commissioner.
PN1378
When Peter Reith, the disgraced Industrial Relations Minister, in 1999 moved as part of the second wave industrial legislation, amendments to division 11A of the Act and I want to tender a document and what I intend doing is - schedule 13 of that legislation which deals with entry and inspection of premises of organisations. Now, that legislation, if passed, would have given employers, Commissioner, the express legislative right to designate locations for union visits including union visits for the purpose of a notification relevant in this application pursuant to section 285C.
PN1379
So this is part of the Workplace Relations Legislation Amendment "More Jobs, Better Pay" Bill 1999 and if I can take the Commission to section 15. Now, that is on page 181 at the bottom there at part 15 about halfway down the page, Commissioner, "After section 285D", it says, we insert section 285D(a):
PN1380
Interviews and discussions with employees under section 285B and to 285C -
PN1381
so relevant, in our submission, to this application. (1), and I quote:
PN1382
A person may only interview employees under section 285B or to hold discussions with employees under 285C during the employee's meal time or other breaks.
PN1383
PN1384
Not controversial, essentially consistent with components of the Act currently. But this is the interesting bit, Commissioner, at (2), and I quote:
PN1385
2(a), if a person wishes to interview or hold discussions with employees under section 285B or C and (b) -
PN1386
and this is the bit that is particularly relevant to this application, in our submission, and I quote:
PN1387
The employer of the employees or the occupier of the premises concerned requests the person to hold the interviews ...(reads)... unless he or she complies with the request.
PN1388
Now, I think firstly we note, Commissioner, in our submission, that that seems to be remarkably similar to the right Telstra says it has under its own right of entry policy, that is a right to direct the union to hold discussions in a room of its desire or its determination.
EXHIBIT #CPSU5 EXTRACT FROM A BILL, SCHEDULE 13, ENTRY AND INSPECTION OF PREMISES BY ORGANISATIONS
PN1389
MR VEENENDAAL: Thank you, Commissioner. So the Telstra policy relies on the manager's assessment against their policy criteria and once the manager has conducted that assessment, based on the criteria provided in the policy, they say; Telstra says the manager is able to make a determination about the location of the discussions to be held and subsequently, according to Ms Schroter's own evidence, is entitled to direct the union, just as though the union was an employee or Ms Lillis was an employee of Telstra - excuse me, I have a cold, Commissioner, I am just - I beg your pardon.
PN1390
So Telstra says that it can direct Ms Lillis or any union official to attend a conference room. That seems to be remarkably similar, we can draw in our submissions, parallels between the suggested amendments at 285D(a) and the Telstra right of entry policy. The difficulty for Telstra in all of this of course, Commissioner, is that the Parliament refused to pass the Bill. The Bill got tossed in the garbage bin so, in our submission, the Parliament has had to expressly consider the issue of location and the employer's right to determine location during section 285C visits.
PN1391
And it said, no, Commissioner, it has tossed it in the waste paper bin. It said, no. Now, in our submission, this clearly - if it is not clear, Commissioner, in terms of the words of - the express words of the legislation at division 11A, in our submission, the refusal to pass this Bill and particularly this part of the Bill clearly announces the intention of Parliament regarding the issue of location and I refer here to my earlier submissions about division 11A and the legislated restriction of the occupier's common law property rights.
PN1392
It has refused to pass a Bill which would allow the employer to put the permit holder who is holding discussions in a room of the employer's choice. In terms of the Commission's powers, we say the Commission is entitled to draw inferences from the refusal of this Bill or the rejection of this Bill and, in our submission, the inference is an irresistible one for the Commission to draw about the Parliament's intention in respect to division 11A.
PN1393
So we say here, in the circumstances of this case, on the balance of probabilities, the Commission must draw such an inference for the purposes of this particular matter. The Parliament has clearly stated its intention in respect to the employer's rights to determine location so it follows therefore, Commissioner, that the employer does not have a right to determine the location for union visits under the current legislation.
PN1394
Now, I want to take this argument one step further and if the Commission is not convinced by that argument, the following argument, in our submission, is a very powerful argument weighing against the grant of the application. The argument is this: That a secondary view can be taken about the fact that this Bill has been knocked off or punted. The fact that a Bill has been introduced by the Parliament, specifying this right and the Bill is rejected, in our submission, that suggests very clearly that the makers of the current Act; the 1996 Act who put in place division 11A, that the legislators are clearly saying that the occupier doesn't have a right to determine location under the current legislative scheme.
PN1395
That is what it is saying, Commissioner. This inference, in our submission, must be drawn by the fact that the Parliament, in 1999, introduced a Bill which sought to establish that right. So if the Parliament thought that the occupier had the right, as Telstra asserts, to determine a conference room as the location, why did it have to introduce this Bill in 1999, Commissioner? If the Parliament thought it had the right, under this legislation for Telstra or any employer to determine the location, it wouldn't of had to introduce this legislation.
PN1396
So if the Commission doesn't accept our submissions about the intention of Parliament in respect to the refusal of this Bill, for instance, the Commission may give it less weight because the Commission says, well, the Bill as a package was rejected and there were other things in the Bill other than the issue of location and we concede that, Commissioner. This was a more comprehensive Bill, it wasn't just a Bill about location but location was part of it, location was debated, it was part of the Bill that was clearly rejected.
PN1397
But if the Commission is concerned about that and isn't persuaded by the submissions that we make, in our submission, it has to be persuaded by the secondary position which is that, if the Parliament thought that under the 1996 Act, under the provisions of the division 11A and 285C, that Telstra or any employer has a right to determine location, it wouldn't have needed to introduce this legislation and I think that is a very powerful argument.
PN1398
THE COMMISSIONER: Parliament didn't introduce the legislation, the Government did.
PN1399
MR VEENENDAAL: Well, the - yes, but the Parliament rejected the legislation - - -
PN1400
THE COMMISSIONER: I understand.
PN1401
MR VEENENDAAL: - - - Commissioner, and that is - so that is - in our view, that elicits a clear intention by the Parliament.
PN1402
THE COMMISSIONER: I see.
PN1403
MR VEENENDAAL: And it elicits it in respect of the primary submission I make and more powerfully I think the secondary submission about what the Parliament believes the current Act entitles the employer to do in respect to location. So, in our submission, this is a powerful argument against the order sought by Telstra. Now, if the submissions that we make about the plenary or general right or incidental right are not accepted by the Commission then, in any event, we say this particular submission still remains relevant to the issue of whether Telstra's decision to determine the conference room as the appropriate location is a reasonable one.
PN1404
And what we say is that it follows then that the Telstra decision to determine the conference room must be unreasonable because the legislation does not enable it to make the very decision it seeks to have determined here. So on that basis, if the Commission against us on the plenary or general right or incidental right argument, we think this submission is still relevant to the issue of reasonableness or unreasonableness of the alternative location that the employer provides.
PN1405
So if this is all right, Commissioner, it follows that someone has to determine where the discussions could be held. We don't work in a vacuum and clearly, in our submission, the union determines that. This is an express right of entry for the union so it follows, relying on the submissions I have just made for the last half hour or so, that it is consistent with the intent and express legislative provisions of division 11A that the union determines location and in the circumstances of - or in this case, we determine the lunch room.
PN1406
And that is qualified by one thing only and only subject to it meeting the requirements pursuant to 285C and D and our earlier submissions were that we have done that and, in our view, there has been no contest about whether we have in fact met the requirements of the Act. It is not challenged, for example, that we haven't given 24 hours notice. It is not challenged that we are not permit holders or that Ms Lillis is not a permit holder and it is not challenged that we have been disturbing employees during work time.
PN1407
Now, if I can just turn to the incidental right so this, if you like, is now the secondary submission, Commissioner. There are two very good reasons that we say that the secondary right - the incidental right exists and that is because in section 285C; 285C(2) in particular, restricts the holding of discussions to the employee's meal time or other breaks. Now, meal time and other breaks are commonly held away from the working area and are, on the evidence of Ms Schroter, commonly held in the area the employer designates for taking breaks in Maroochydore and that is the lunch room.
PN1408
So we submit that the lunch room is the very place that it would be expected that discussions take place with the union members and persons eligible to be members in respect to an entry under division 11A. I refer the Commission to the evidence of Ms Schroter at paragraph 9 where she talks about everyone essentially using the lunch room. So the lunch room, in our submission, is the location on the premises that is incidental to the legislative restrictions on the union's right to hold discussions.
PN1409
And that is simply because if we are not located in the lunch room at Maroochydore where people take their breaks it is less likely, in our submission, that the organiser will have an opportunity to hold discussions and it is less likely that employees, more relevantly, will have an opportunity to hold discussions because they are not in the conference room, Commissioner. Yes, they may enter the conference room but they don't normally enter the conference room during the lunch break.
PN1410
At the lunch break, the evidence is clear, they go to the lunch room. So how does that meet - how does that make the Act efficacious, how does that meet the purpose of 285C where the union has hived off into the conference room where no-one goes to have their lunch during their breaks. Very difficult for us to apprehend or comprehend how that meets the purpose of section 285C and the purposes of division 11A generally.
PN1411
In our submission, it would render the legislation ineffective or at least less effective. And if I can refer the Commission to the evidence of Ms Lillis at paragraphs 1114 to 1118 and I think this makes the point pretty clearly and I want to take the Commission to this and spend a little bit of time on it. At 1114 she is asked:
PN1412
At the top of page 27, you say that you had been in the lunch room for approximately 30 minutes when -
PN1413
and this I think relates to the - - -
PN1414
THE COMMISSIONER: Sorry, what paragraph number?
PN1415
MR VEENENDAAL: This paragraph number triple 1 4, 1114.
PN1416
THE COMMISSIONER: I am sorry.
PN1417
MR VEENENDAAL: This I think relates to the visit of 26 July from recollection, I may be wrong with the date.
PN1418
THE COMMISSIONER: No, that is right.
PN1419
MR VEENENDAAL:
PN1420
At the top of page 27, you say that you had been in the lunch room for approximately 30 minutes when Ms Schroter entered the room. In the time that you were in the lunch room prior to Ms Schroter entering the room, did you have discussions with any member or persons eligible to be members?
PN1421
Ms Lillis answers, "yes".
PN1422
How many? Seven.
PN1423
So she is there for 30 minutes. She has discussions with seven people and - although perhaps I was remiss in not asking, there would have been more people than seven people, in our submission, in the lunch room although there is no evidence about that but she has had discussions with seven people. That is probably the most relevant part of the evidence. Then at paragraph number 1116 a question is asked:
PN1424
... that your statement then says that, based on a demand from Ms Schroter -
PN1425
where she came in and had a double spit on that particular day -
PN1426
you then adjourned to the conference room where you stayed for approximately 15 minutes and you state that no members or persons eligible to be members came in the room at that time. As a result of the fact that no members or persons eligible came into the room you decided to relocate.
PN1427
In other words, Ms Lillis is in the room, no-one comes in so what is she going to do, Commissioner, sit there like a shag on a rock, not doing her job. No, she goes back to the lunch room. She goes back because she thinks she is more likely to have discussions with people who are in the lunch room compared to the conference room. So she says, "Yes, I relocated." And the question is asked:
PN1428
When you returned to the lunch room, did you have any discussions with members or persons eligible to be members?
PN1429
Yes, she did. So she has discussions for the first 30 minutes, seven people, 15 minutes in the conference room, she has no discussions, she goes back to the lunch room and has discussions:
PN1430
And how much time elapsed? Well, I had discussions straight away.
PN1431
Well, why there are people in the lunch room having lunch, what a surprise.
PN1432
And how many persons did you have discussions with, for instance, in the first 15 minutes -
PN1433
and that time period is specified because she is in the conference room for 15 minutes, they are trying to be fair. She has discussions with four people. I mean this is palpable fear. If she is in the conference room she has no discussions. The purpose of the Act in respect to holding of discussions is rendered nugatory, in our submission. She is back in the lunch room and she has discussions with four people straight away. Absolutely clear, unrefuted, unchallenged evidence about the efficacy of the lunch room in terms of section 285C compared to the conference room.
PN1434
Now, at paragraph 23, Mr Trindade, in fairness to him, challenged in respect to another visit about the efficacy of - or about the number of persons that Ms Lillis had discussions with because at paragraph 23 of her statement there was another case in another instance where Ms Lillis mentioned that she didn't have any discussions with employees on the visit of 9 April and on that occasion she actually relocated to the Danilos Cafe and Mr Trindade challenged and said:
PN1435
But couldn't it be the case that you didn't have discussion with people because you left the site?
PN1436
And it wasn't conceded that that was not the reason she had discussions but if the Commission was minded or felt that that evidence was brought into question, that is the evidence at paragraph 23 of her statement where she says she had less discussions with people on that particular day because she wasn't located in the lunch room because she had left the site, if the Commission is persuaded or concerned about our evidence in that respect, this is irrefutable because she is on the site.
PN1437
She is on the site all day, she doesn't leave the site, she relocates between the lunch room and the conference room so, in our submission, it is irrefutable evidence. Now, Ms Schroter is at pains under cross-examination to suggest that in fact the conference room is just as effective for having discussions. Now, she is entitled to her opinion but I say a couple of things about that.
PN1438
Firstly, that is an opinion which she maintained under cross-examination, that the conference room was either more suitable and in fact I think in some parts of her evidence she says that we are more likely to see members in the conference room because of the issue of privacy and all of these concerns that members of the union or persons eligible have about privacy in the lunch room.
PN1439
So she is entitled to her opinion but these are the facts of the matter, this is the fact, this evidence at 114, triple 1 4 and triple 1 8 is factual evidence where Ms Lillis spoke to real people pursuant to 285C or didn't speak to real people depending on where she was located so I think that the evidence of Ms Lillis clearly needs to be preferred because it is based on an actual experience on 19 April rather than Ms Schroter's opinion about the concerns of privacy of employees even if they have raised those with her on particular occasions or otherwise.
PN1440
THE COMMISSIONER: Are you about to go on to another topic?
PN1441
MR VEENENDAAL: I have a little bit more to say about this topic - I have got about another three minutes on this and then if the Commission is minded to adjourn we can do that.
PN1442
THE COMMISSIONER: Sure.
PN1443
MR VEENENDAAL: So obviously the principal argument we advance here is the intention of Parliament, that Parliament intended the lunch - discussions to be held in the lunch room pursuant to 285C based on its restriction, discussions at meal times, but we submit that there is an issue of the efficacy of the Act and the intent of the Act and that the Commission, in our submission, needs to be mindful of that in the sense that the Commission must, in respect to its orders, be mindful of furthering the objects, thrust, scope and intent of the Act and particularly division 11A.
PN1444
So in respect to that secondary submission about the incidental component, we say that it is open to the Commission, on the balance of probabilities, to conclude that the Parliament intended for discussions to occur in the lunch room where breaks are commonly taken at Maroochydore. We submit that it is not a matter of making an assessment of a suitable alternative venue in the employer's view based on its policy or anything else, any other views of the employer.
PN1445
In this case we submit that the evidence suggests that the location of the lunch room will give proper effect to the legislative purpose of 285C and that location in the conference room, if an order is granted, will give less effect or render the purpose and intent of 285C nugatory. So we say that the lunch room is both incidental but we also say that access to the lunch room is probably necessary for the effective operation of division 11A. I am now about to move onto the issue of unreasonable - - -
PN1446
THE COMMISSIONER: Very well.
PN1447
MR VEENENDAAL: - - - restrictions so perhaps we can break at this time.
PN1448
THE COMMISSIONER: Thank you. We will adjourn until 2.15.
LUNCHEON ADJOURNMENT [12.50pm]
RESUMED [2.26pm]
PN1449
THE COMMISSIONER: Yes, Mr Veenendaal.
PN1450
MR VEENENDAAL: Thanks, Commissioner. I might just very briefly summarise what we said before lunch - - -
PN1451
THE COMMISSIONER: Sure.
PN1452
MR VEENENDAAL: - - - just for the purpose of context in respect to submissions I am about to make. Before lunch we submitted that the Act establishes a plenary or general right of entry for the union and we suggested that if that is acceptable - that concept is accepted this provides for a general right to the union to use the lunch room part of the premises at our choosing. In the alternate we argue that the union has a right to enter any part of the premises that is incidental to the union's right to have discussions pursuant to section 285C.
PN1453
Again, if this is accepted we submit that it follows that the union then has a right to determine the location it holds discussions at as long as the location is incidental to the purpose of discussions and, of course, that we comply with the other restrictions imposed on the permit holder under division 11A. We then submitted that this should be the lunch room for the circumstances - or in the circumstances of this case because it is an easy and convenient room to hold discussions, as it is the very place where employees normally congregate during their breaks.
PN1454
Now, if the Commission is against us on the two points that we just made, and in respect of the submissions we made before lunch, then we need to deal with the cases to date and the principles that may arise out of those cases. Commissioner, as you would be aware, and as Mr Trindade referred to, there are a number of decisions of single members of the Commission where those members have had cause as part of applications by various parties, to consider whether the employer should be allowed to restrict the union's access to certain locations at the particular premises that were the subject matter of those particular applications.
PN1455
The test that has been adopted by some members is whether or not that restriction has been considered to be not unreasonable, if I can put it in those - in that sense. So in other words, if the alternate location that the employer provides is not an unreasonable location, and in respect to your decision, Commissioner - that is the Leading Synthetics - and I think I referred to that incorrectly in my outline of submissions as Leader Synthetics at various parts and I apologise for that - I don't think there would have been about the decision that I was actually referring to.
PN1456
But in your decision, which is the Leading Synthetics decision, print number R5518, which was made on 3 June 1999, you made some observations about the Act. I don't intend to go into - about the meaning of division 11A and I don't mean to go into a lot of detail about that decision obviously. But one of the things that you seem to say, and you will correct me if I am wrong, is that it was almost a two part test; firstly, that the company's alternative should not be unreasonable or, if you like, is reasonable, or at least in the context that it doesn't render the purpose of section 285C nugatory.
PN1457
So that seemed to me to be a cumulative test. So firstly, do we assess - or there is a need to assess the reasonableness of the alternate location, the conference room, and that determination about whether it is reasonable or unreasonable will be at least in part based on whether the Commission decides that the alternative location would make the concept of discussions nugatory. And presumably then if it doesn't make the concept - or cause the rights established - or the powers under the Act which lead the union to be able to hold discussions nugatory, then it might not be unreasonable.
PN1458
Now, that was my understanding of the decisions and that decision has been followed in a couple of other decisions by Commissioner Simmonds and I think Senior Deputy President Williams in other decisions of the Commission. Now, we would respectfully submit that if that - if my reading of that is correct, that that is not necessarily the correct test to apply in the circumstances of this case. And I am also not certain in the way those other Commission members followed the test, that they were actually focusing on the concept of discussions being rendered nugatory.
PN1459
In fact some of those decisions seem to revolve around whether the union's discussions would be inhibited, or whether there was some inhibition on the efficacy or the way 285C would be given effect. So I noted that some of those decisions seem to either - although they certainly refer to your decision, they then seem to qualify it in some way or certainly not focus on that cumulative effect of your initial decision in Leading Synthetics. In any event - and I will deal with that in a little more detail in a moment, Commissioner, but I am just by way of outline here wanting to put some propositions, or outline some of the propositions that we will be advancing.
PN1460
We say that having regard to the authorities the test of what should be - or what is the most appropriate venue, should have regard to factors like the views of the union and the views of the union in our submission are paramount, and I think that is very consistent with some of the dicta that comes out of the Leading Synthetics decision where essentially, as I understood it, that is what you said; secondly, the overall scheme, scope, thrust and intent of the Act and thirdly, the general objects and other objects of the Act that are relevant. And I will go into more detail about all of these submissions in a moment.
PN1461
But in any event if the Commission is against us on this concept of, for instance, the unreasonable test being applied on any suggestion that there is some inhibition in respect to the way 285C would be given effect - if the Commission is against us on this, then we say that the restrictions Telstra seeks to impose in this case is in any event an unreasonable restriction and, therefore, the order they seek should not be granted. So I wish to turn to a number of these issues in turn and firstly I want to refer to some of the decisions of the Commission generally, and I have taken the liberty of putting together a file of decisions and I wish to tender that file now.
PN1462
MR VEENENDAAL: Now, Commissioner, I don't purport to suggest or I don't suggest that this book of decisions is every decision that has ever been made on 285G, but what I will submit is that in the searches that I made - and the searches were made some months back and I have to concede I haven't renewed those searches since at least late April when we were preparing for the early May two days of hearings - but I would suggest of those decisions that were capable of being sought through the normal forms of searching, these are all of the decisions that have been put on file. I haven't been selective to simply select a group of decisions that suit us.
PN1463
I have actually taken all of the decisions here that have been made by the various single Commission members in respect of 285G matters and have listed them here. And so what I have found essentially is that - there were 14 decisions that I found through these searches and I am sure it wouldn't surprise the Commission to know that 10 of those 14 decisions found in favour of the union and found that the lunch room or common room, or however it is coined in the various decisions, was the appropriate room for the holding of union discussions.
PN1464
So that is Sakata Rice Snacks Decision, the Halliburton Australia Decision, the Stockport Decision, the Midfield Meat Processing Decision, the Borgcraft Decision, your decision in Leading Synthetics, the MEAA and Various Employers Decision, the decision of Commissioner Eames; the McConnell Dowell Constructions Decision, the Good Looking Shirts Decision and the Foster Plastics Decision. Now, I couldn't find the actual decision in Foster Plastics so what I have done there, Commissioner, is simply inserted the order. So I concede I don't have the decision there; the decision wasn't available in Osiris.
PN1465
I don't suggest that I couldn't have, if I tried very hard, found it by going to award sales or through some other source, but I have the order there and it is pretty clear that the union won the day in that the order is an order for lunchroom access. So it is pretty clear there that the union won the day. So 10 decisions in favour out of those 14 decisions of the grant of the union's application, or in respect to lunchroom access, or where the employer applied; in any event the order granted was an access granted to the lunchroom.
PN1466
There were three cases - of the remaining four cases three cases I would describe as having a neutral outcome. They are the Greenham and Sons Decisions, the Commonwealth Bank of Australia Decision of Commissioner and the Moranbah North Coal Decision of Commissioner Hodder. That was the decision that was appealed and that appeal mainly dealt with jurisdictional issues. It did deal to some extent - to some limited extent with some of the merits of the application, but that Moranbah North Coal Full Bench Decision which followed Commissioner Hodder's single member decision really was a decision that more focused on the jurisdictional aspects.
PN1467
But I do say, and I will refer in a bit more detail later on to the Full Bench decision, in that it also had something to say, for instance, about the views of employees, or the view - the disturbance that is created I should say by a union official entering the lunchroom. But in those three decisions that I have just referred to I describe them as a neutral outcome because what the Commission members were minded to order in terms of the applications was a trial of alternative locations.
PN1468
So I would suggest that in those cases they were not a clear win for the union in the sense that the Commission member having heard the evidence has said, well, look, I think it is appropriate that there be a trial of the location that the employer wants and a trial of the location that the union wants and then we will all come back here if necessary later on and have another argument, having kept some records or files or memos about what happened during the trial, and perhaps have the matter finally determined.
PN1469
I am not aware that any of those matters actually got back to the Commission in any form after those trials and there certainly would have been time for that to happen, given that both the three decisions occurred in or around 2000 and 2001. So of the 14 decisions there is one case where an order was sought by a union which was refused, and that was CPSU v Telstra Corporation Ltd, the decision of Deputy President Duncan. Does Mr Trindade want to say something about that at this stage because - I wasn't sure whether you wanted to say something about that at this stage.
PN1470
MR TRINDADE: No, I have got nothing to say at this stage, Commissioner.
PN1471
MR VEENENDAAL: And that is obviously the decision that I note in the outline of submission that the company seeks to rely on. That is a decision of Deputy President Duncan at print S1028 made on 18 November 1999. So it is our submission that the Commission can infer something from the weight of the union views about these issues versus the weight of the employer views about these issues, given that 1 out of 14 have gone in favour of the employers. Now, no doubt Mr Trindade would be saying, well, look, that is a Telstra case and, therefore, it is probably the most relevant case out of all of those decisions.
PN1472
He may well say that. I wouldn't want to put words in his mouth but he may well say that and we will deal with that a little later on in the submissions, Commissioner. But what I am suggesting is that that sticks out like a bit of a sore thumb in the grouping of 14 decisions and I will be suggesting two things; firstly, that that decision can be well and truly distinguished from the fact circumstances in this case and secondly, that the decision was probably wrong anyway. So we submit that based on the decisions, the balance where there are competing views about location in our submission lie squarely with the union and that is supported by some of the authorities.
PN1473
Now, I suggested that your decision in Leading Synthetics, where you have made reference to that well worked part of the dicta about the concept of unreasonableness and the concept of consultation being rendered nugatory - certainly I can see it has been cited with approval by a number of members. There is the decision in AMIEU v Midfield Meat Processing, a decision by Commissioner Simmonds in PR905671 and I think that appears at tab - if you can just bear with me, Commissioner - that appears as tab 5 in the index at the front there. There is another decision by the same Commission member, Commissioner Simmonds, in AMIEU v H.W. Greenham and Sons. It is print number PR911794 and that is tab 2.
PN1474
Both of those decisions resulted in trials. And there is also a decision of Senior Deputy President Williams - I beg your pardon, the Midfield Meat Processing Decision resulted in an order for lunchroom, I beg your pardon. The Greenham Decision resulted in a trial. And then there is another decision of Senior Deputy President Williams which is the AMWU v Borgcraft Pty Ltd Decision, PR904326 and AMIEU v T.R. Murray Bridge Pty Ltd, PR927815, where - and also Senior Deputy President Williams in NUW v Sakata Rice Snacks Pty Ltd, PR913860, a relatively recent decision in February 2002 where the two Commission members in those various decisions cite with approval the extract in Leading Synthetics where you say:
PN1475
That where a disagreement about location exists the question could be asked -
PN1476
and I stress "could" -
PN1477
as follows: Is the action of the employer such as to place unreasonable restrictions upon the entry of the union official so as to render the concept of occupation nugatory?
PN1478
That is paragraph 13 of your decision. So if I can just deal with where we say that decision may be - it is open to the Commission to review that decision in terms of this application. The first and obvious point I make is that the Commission in that case says that the question could be asked. So not necessarily has to be asked but could be asked. And I am not suggesting it is inappropriate to ask in this case, but I am just suggesting to the Commission that it is not compulsory in terms of the principle that is established out of that case and followed up by other Commission member and the question was the one that I just quoted.
PN1479
The other concept, of course, is that single members have filed a decision so - a Full Bench hasn't confirmed the decision as yet and, therefore, I think it is open to another - to a single member of the Commission in this case, for instance, to vary the decision. That is really what I am going to be asking. I am not saying that the Commission was wrong in what it said there, and I actually think overall the decision is quite favourable to the union, particularly the paragraphs which deal with the weight of the union's views and how they should be considered vis-a-vis the weight of the employer's views where there is a decision about location. Obviously we are happy to adopt those aspects of the decision.
PN1480
But what I am suggesting is that the law could be modified - or the principle could be modified. The concern we have is where you say the unreasonable restrictions test, as I inferred when I introduced this particular part of my submissions, applied - seems to be conditional, and I quote:
PN1481
Upon the entry of a union official so as to render the concept of consultation nugatory.
PN1482
That is the real problem I have with this or what I am suggesting could be reviewable in this case by the Commission. What we are submitting is that a preferred test is that the unreasonableness lies in where the employer's action has any inhibiting effect on the purpose of section 285C. Now, I think that is inconsistent with an unreasonable restriction so as to render the concept of consultation nugatory. I think a distinction can be drawn where we say that the unreasonableness lies in where the employer's action has any inhibiting effect at all. So it doesn't just have to render the concept of consultation nugatory.
PN1483
When you look at the dictionary definition of nugatory the Shorter Oxford English Dictionary definition of nugatory is - and I quote:
PN1484
Of no force, invalid, useless, futile, inoperative.
PN1485
Now, I think that is a far more onerous test than we should have to meet in terms of the grant of the union's application, and in this case the refusal of the employer's order, because what that decision, I think, says, is that the concept of consultation has to be made - the decision to locate us in the conference room has to cause the concept of discussions or consultation to have no force or to be completely invalid or useless or futile.
PN1486
What we are submitting is that it is a lesser test and that is that the employer action - the unreasonableness lies in the employer's actions - of the employer's actions where the employer's actions have any inhibiting effect at all. So in other words if we see less members in the conference room than we would have in the lunch room that has an inhibiting effect on the efficacy or general effect of 285C, in that the discussions are inhibited because we are selling less people. And that in itself in our submission causes the company's decision to locate us in the conference room to be unreasonable. That is our submission in that regard.
PN1487
So really it is about the purpose of 285C and where it is less effective that in itself causes the decision to be unreasonable. And I refer again to the evidence that we referred to earlier in paragraph 1114 to 1118, and that is the evidence that I refer to where Ms Lillis had located in the course of approximately 45 minutes - or an hour, I should say, firstly in the lunch room where she saw seven people; secondly, in the conference room for 15 minutes where she saw no people and then in the next 15 minutes where she relocated into the lunch room she saw four people. In our submission that is evidence which we would rely on to suggest that we see less people in the conference room than the lunch room.
PN1488
That renders - or is an inhibition in terms of the effectiveness of 285C because the purpose of 285C is to enable us to have discussions and that in itself engenders an unreasonableness in the employer's decision to send us or to determine that we go in the lunch room and the conference room. And, of course, we also submit - and this is consistent with your decision as followed by those other Commission members, that significant weight should be given to the union obviously, given what division A is about - division 11A is about, and that is an express right of entry for union officials - that sufficient weight should be given to the union's view about the effect on the discussions.
PN1489
We don't really think that the concerns that the employer has about privacy, for example, are of any relevance to the Commission's determination under 285G. If the union had a concern about privacy that would be relevant because after all the union - the purpose of the division is for the union to have discussions with members or persons eligible to be members. We don't think the employer is entitled to have concerns about the privacy of discussions. If those discussions aren't private enough for members they will tell us and then we will relocate because we determine we should relocate. And that is entirely appropriate and entirely consistent with the law - the legislation of division 11A.
PN1490
Now, I would just like to refer to the decision of Senior Deputy President Williams. For instance, if I can take you to tab 6. This is the Food Preservers Award Decision - the Borgcraft Pty Ltd Decision, print PR904326, a decision of Senior Deputy President Williams on 18 May 2001. And it could be that I am blowing a bit of hot air in the sense that this may be what the Commission is saying anyway, because if I can take the Commission to - just bear with me, Commissioner - if I can take the Commission to the top of page 11 of that decision. This is the dot point 1 on top of page 11. His Honour Senior Deputy President Williams says, and I quote:
PN1491
I am satisfied that in the circumstances the refusal of the company to allow access to the employees in the lunchroom -
PN1492
and I emphasise this and I continue to quote -
PN1493
constitutes an unreasonable inhibition on the consultation that section 285C is intended not only to protect but also to promote.
PN1494
End quote. Now, the Senior Deputy President doesn't make any reference to the concept of consultation being rendered nugatory. He coins it in the sense - although he cites clearly with approval a number of paragraphs in your Leading Synthetics Decision on the previous page 10 - - -
PN1495
THE COMMISSIONER: Only in general does he agree.
PN1496
MR VEENENDAAL: Yes, in general, but he cites your decision with approval.
PN1497
THE COMMISSIONER: Yes.
PN1498
MR VEENENDAAL: But then he says that - the test that I think he applies is whether the refusal of the company to allow access to the lunchroom constitutes an unreasonable inhibition on the consultation. I think that is highly consistent with the point we are making, so it could be that some of my submissions are a little futile, but I would suggest that this is a little up in the air and given that he has cited your decision with approval I see no impediment to the Commission clearing this issue up if it is in fact up in the air. Now, the Commission may write a decision saying, well, look, I think Mr Veenendaal is wrong and it is not up in the air at all and this is what it means, and that is fine, the Commission can do that.
PN1499
But I am suggesting that this concept of unreasonable inhibition is the test and it is interesting that he says, consistent with our submissions:
PN1500
An unreasonable inhibition on the consultation that 285C is intended not only to protect but to promote.
PN1501
So clearly he is looking at the effectiveness of section 285C. We think a principle arises from a decision like this. It is a single member decision. It is of no more or less value than the other single member decisions, but certainly given that it is one of the decisions that is cited with approval, some of the paragraphs along with other decisions, in your case it probably carries a little more weight than some of the other decisions that perhaps haven't looked at the authorities that have preceded them as strongly as this decision has. And, of course, this is a later decision. There are a number of decisions that I have included in my file which are decisions in 1997, '98. This is a 2001 decision; it is a relatively recent decision.
PN1502
If you will bear with me, Commissioner. His Honour, Senior Deputy President in the Sakata Rice case, which again is a later decision, 4 February 2002, this is PR913860, essentially recites a similar principle - a similar principle arises, if I can put it that way at paragraph 19 of his decision where he essentially says the same thing and I quote paragraph 19:
PN1503
I am satisfied that in then circumstances of this case Sakata's refusal to allow the NUW access to the employees in the lunch room ...(reads)... to protect but also to promote.
[2.52pm]
PN1504
And that is a decision where he also cites with approval your decision in Leading Synthetics. So I think that is - we say that the principle arises out of all of this, perhaps, and the consequences of the unreasonableness - or the unreasonable act from the employer does not have to be an unreasonable act so as to render the concept of consultation nugatory. We think that secondary or cumulative component, as I put it, is not necessary. Now, it may be a subtle distinction, but I don't think it is that subtle, I think there is a substantial or material difference between the concept of consultation being nugatory and an unreasonable inhibition on 285C and the nature of consultation that the provision provides.
PN1505
But I think it is a necessary distinction to draw to the Commission's attention and we say it is available to the Commission on this case, if there is any doubt, to clear that doubt up. This will be the latest in a series of decisions. I have now raised the issue squarely before the Commission as a concern. If I am misreading all of these decisions or I am boxing at shadows, that is fine, the Commission can tell us. I don't think I am and I am certainly open to the Commission to choose an approach within this unreasonableness test and we say it must be applied within the context of the overall scheme of the Act and it is appropriate to apply it in the way that, for instance, Senior Deputy President Williams has applied it in these two decisions that I have referred to.
PN1506
Now, having said all of that I want to turn to some of the provisions of the Act - relevant provisions of the Act. The parts of the Act that hold particular relevance, in our submission, are section 170 - sub section 187A, section 88A, section 3 and division 11A. Now, if I can take the Commission firstly to section 187A, now this does appear in Part IX, that is, the same part as division 11A appears so we think these objects are relevant. And if you look at the objects, particularly at 187A and B they are to encourage democratic control of organisations and to encourage members of organisations to participate in the organisation's affairs and also to encourage the efficient management of organisations.
PN1507
Now, we submit, that the restriction Telstra seeks to impose not only fails to promote those objects but subverts them. And we say that because a requirement for us to locate in a conference room may reduce the numbers of members and persons eligible to be members, to be able to access the union official for the purpose of having discussions and this, in our submission, is because no employees go into the conference room during their breaks and everyone goes to the lunch room, a very simple concept.
PN1508
In our submission, supported by the evidence of Ms Lillis and Ms Schroter in terms of the use of the lunch room. Secondly, because contact with members in particular, enables organisers to be democratic and encourage participation. It is very difficult for us to have regard to the view of members when we don't them, Commission, and I think that is a factor and it is certainly consistent with the objects about democratic control of organisations. Democratic control implies that people should have an input and I note the evidence of Ms McDonald where she talked about the CPSU being a democratic union in the context of the letter that was written to the more senior manager of Telstra after the letter was written by Ms Lillis to Ms Schroter.
PN1509
What she said was our members were demanding, or asking, that we take the matter up the dispute resolution chain. We are a democratic union, we do that. Now, if we don't have discussions, we don't find out about these things and we can't be democratic. Now, what we also say, thirdly, is that feedback from members and persons eligible to be members enables the union to more effectively manage itself as this enables the union through discussions to better understand what our members' wants and needs are. A very simple concept.
PN1510
But, again, a concept difficult to execute when we are not seeing anyone, or in the alternate, where we are seeing less people than we would if we were in the lunch room. If I could take the Commission down to section 88A, the objects of Part VI, dispute prevention and settlement, also relevant because of course the Commission's powers in this matter arise under, essentially, a power pursuant to a dispute settlement prevention - disputes prevention and settlement of disputes power at 285G. And if you look at the objects at 88A(a):
PN1511
Waivers and conditions of employment protected by a system of enforceable awards established and maintained by the Commission.
PN1512
And (b):
PN1513
Awards act as a safety net of fair minimum wages and conditions of employment.
PN1514
Now what we say in respect to those objects is that discussions at then workplace persist in giving the union information from members and persons eligible to be members about award compliance. And of course awards have a present and future concept so the present and future needs of awards employees in terms of the provisions contained in those awards is important and it is very difficult for us to gain any understanding of compliance unless we are talking to members, or having discussions in the workplace with members, about, for instance, the application of awards in the workplace.
PN1515
And those discussions need to be efficacious, they need - we need to be able to maximise the number of employees we have discussions with for compliance, if you like - that award compliance object and the object regarding awards acting as a safety net of fair minimum wages and conditions to be properly observed. We also submit that these discussions would clearly assist the Commission in its role and responsibilities in maintaining awards and ensuring awards act as a proper safety net, because if we are seeing that matters - there are breaches or there are problems of interpretation, there is nothing to stop the parties, in the first instance, to come to the Commission and seek private conference or private arbitration, or if there are powers, orders, relating to issues - award related issues.
PN1516
If we don't discover the issue it is very difficult for the Commission also to uphold its proper functions under the Act. Now, if I can take the Commission to the general objects at section 3, the principal objects of the Act and obviously these objects have overriding application of the Act in general, they are principal objects. There are a number of objects, in our submission, that are relevant. I think, the same submission that I have just made in respect to the objects at 88A can be made for the object of 3D(1) providing a means for wages and conditions of employment to be determined as far as possible by agreement, not much relevant - not so relevant.
PN1517
But that particular component is founded upon a foundation of minimum standards. Again, if that foundation of minimum award conditions and standards starts to break down because we are not in the workplace having discussions, that does create some difficulties, in our submission, and is inconsistent with that particular object. If I can take the Commission to object 3F, that is the concept of freedom of association. We are not embarrassed about this Commissioner. Sometimes when union organisers in the workplace having discussions people actually them whether they can join the union, and it could even be that an organiser has part of or incidental to those discussions, may say to a person who is a person eligible, would you like to join the union.
PN1518
Now, we are not embarrassed about that and we think that is entirely appropriate with the scope, intent and thrust of division 11A for recruitment, if you like, to occur in the workplace which is incidental to the discussions. We don't see it as the principal purpose but given that discussions can occur with persons eligible, and that is clearly announced in the Act, I would have thought that it is fairly clear, the intention of Parliament was to enable persons pursuant to this object, for example, to join a union if they choose to.
PN1519
And I think that can include the union organiser saying, would you like to join the union. There is no evidence to suggest that Ms Lillis did anything else in the workplace. In T2 there is some statements where people say, I was asked to join the union, as though that is a bad thing. In none of those statements - and they seem, I must observe, Commissioner, be remarkably similar in their thrust and the way they are put together, but nevertheless, in all of those statements they all say, we were asked to join the union and I observed - how horrible - I observed Ms Lillis asking others to join the union.
PN1520
Yes, that is part of her job, that is incidental also, that is incidental to having discussions. We are not embarrassed about it. We don't think it is a breach of the Act, we don't think it is inappropriate conduct and we also don't think it is disruptive conduct. And we would have no difficulty with the Commission clarifying this issue in this decision if it is minded to. Is it appropriate for the union to have discussions, well if it is not - to recruit. If it is not, we better be told - we better be told about it. I think it is entirely appropriate, that is our submission, and we think it is consistent with objects of the like, like object 3G - 3F.
PN1521
And we also submit that it is an object which is more difficult to be met in an environment where we are less available or see less members or persons eligible to be members, like, in a circumstance where we were restricted to conference room access. 3G:
PN1522
Ensuring that employee and employer associations registered under this Act are representative of and accountable to their members and are able to operate effectively.
PN1523
Very similar to the objects at 187A, so I rely on the submissions I made at 187A about those particular objects, but this is reflective of the objects in that part and these are general objects, so we rely on those submissions. 3K:
PN1524
Assisting in giving effect to Australia's international obligations in relation to labour standard.
PN1525
Well, Australia has long ago ratified the International Labor Organisation's freedom of association and protection of the right to organise convention. That is a 1948 convention, ratified by the Whitlam Government. Secondly, for the right to organise and collectively - the right to organise and collective bargaining convention, a 1949 convention, ratified by the Australian Parliament. And we are also a signatory, Commissioner, to the international covenant on economic and social and cultural rights.
PN1526
All of which, in our submission, recognised the rights of workers to represent themselves collectively through their unions. We say in a circumstances where we are less available, and that is a circumstance which would arise if we are located in a conference room, compared to where were are more available in the lunch room, it is far more difficult to meet this object in an environment where we are less available and so we think general object 3K is relevant to this application as well. If I can take the Commission now to division 11A.
PN1527
I have made some submissions about this previously so I want harp on it but division 11A is obviously the most important part of the legislation in respect of this application. Division 11A provides an express right of entry to the union. In our submission any employer activity aimed at reducing the right to hold discussions should not be sanctioned by the Commission by way of the making of an order requiring the union to be located in the conference room in the circumstances of this case. The legislative context is clearly, in our submission, that discussions need to be held in breaks.
PN1528
It follows that discussions therefore should be held where access is readily available and convenient for members and persons eligible to be members. Now, I have already made some submissions about the general right of entry. We submit also, as I foreshadowed earlier, that this is relevant to the concept of unreasonableness and that is by making submissions now about this concept of unreasonableness. And we say that because in our submission the Parliament intended that the occupier has no right to determine location. It then follows that it is unreasonable for the occupier to insist on the conference room in the circumstances of this case.
PN1529
That, in itself, in our submission, is enough to satisfy the unreasonableness test. So if you are against us in all of these other things that in itself, in our submission, is sufficient to satisfy the unreasonableness test. So we rely on our earlier submissions which we have made which, I think, probably expand on the points that I have just made there and I won't repeat them all. In addition, Commissioner, the union, contrary to what Telstra might like, actually does hold a special place within the overall scheme of the Act and that has been found in decisions like the decision in Leading Synthetics, in our submission, and that is the reality.
PN1530
The union does hold a special place within the overall scheme of the Act more generally. The Act provides for registration of unions as a means of ensuring that unions behave within a defined and legislated scheme and I refer the Commission particularly in this regard to section 189, particularly section 189(1)(a)(ii) where presidential members can grant applications for registration if, and only if, the association is an association for furthering and protecting the interests of its members. We think (h) is also relevant here:
PN1531
The registration of the association would further the objects of this Act.
PN1532
Now, I understand we are already registered and I think there is a concept here which I am relying on, if you like, which I will very briefly expand on now. To require the union in the circumstances of this case to use the conference room is to deny the union a fair and reasonable opportunity to speak to its members and persons eligible to be members. And that subverts the very nature of registration, if I can respectfully submit that, Commissioner, and the various obligations on unions under the Act more generally.
PN1533
And we think that - this is a small point I make but I think it is a relevant point in the circumstances of this case. So, therefore, in our submission, there would need to be very good reason to restrict the union's access to the premises. And in our submission, in this case, in respect to all of the submissions I have just made about unreasonableness, there exists no good reason to restrict the union's access to the conference room. And that leads me to turn in a bit more detail to the facts, circumstances of this particular case.
PN1534
I have referred to them generally in submissions but I want to turn to that in a little bit more detail and I would like to refer, firstly, to Telstra's right of entry policy. Now, in our submission, apart from of the other things I have already submitted in respect to the grounds upon which the Commission can refuse this application, this in itself is sufficient ground to refuse the application. Telstra - the evidence is clear from Ms Schroter, she relies heavily on the right of entry policy as a mechanism which triggers her decision, or leads to her decision, to locate us in the conference room, there was evidence.
PN1535
Under cross-examination this particularly came out and there was evidence that she assessed - in fact it is in her own statement that she:
PN1536
Assesses the union's application to enter and locate itself in the lunch room based on the criteria which are the following factors which will add to the appropriateness of the room.
PN1537
And there are a series of dot points listed at the bottom of page 6 and the top of page 7. And this is exhibit SJS3, Commissioner, the Telstra right to enter and inspect the workplace policy. Now, if the Commission is minded to find that Telstra's reliance on this policy is flawed because Telstra's right of entry policy in respect to the legislation - that division 11A is flawed because it is completely inconsistent, for example, with the legislation, that in itself, is sufficient reason, in our submission, to refuse the application.
PN1538
If I can draw the Commission's attention to the decision of his Honour Vice President Ross in AWU and Halliburton Australia, this is PR909832, this is the third decision in the index at tab 3 and it is a 2001 decision of his Honour. And if I can take you, Commissioner, to paragraph 15 and if I can quote the last sentence in paragraph 15, it is on the last page of the decision and this is three lines up from the bottom of paragraph 15 and I quote:
PN1539
In relation to Halliburton's primary point that is for the company to determine where discussions on its premises are to be held I do not find such an argument to be ...(reads)... such a limitation.
PN1540
Now, I think that is on point and I have made some submissions earlier about this concept of the - or the authority pursuant to division 11A and how it is inconsistent with division 11A for the employer to be able to direct or determine, as is the language of Ms Schroter's own statement, to direct or determine an official or the union more generally to go to a particular location. This is an authority which agitates against the Commission accepting the argument that the employer in any way should be able to determine what the location is.
PN1541
In our submission it matters not the reason, it says it can do that. For instance, if it says, as it does in this case, as I understand it, that it has got a right of entry policy, Commissioner, which has all of these criteria and the manager assesses our application for the lunch room against this criteria and then the manager makes such a decision, well, unless the Act supports that concept or that particular application of division 11A, well, it is flawed. And if the Commission is minded or is looking at - the facts, circumstances of this case lends any weight to this right of entry policy or - I will withdraw that.
PN1542
If the Commission is of the view, considering the evidence in this case and the submissions, that Telstra placed any weight itself or referred to in any way to its right of entry policy and then made a decision based on that to determine a conference room, well, in our submission, that falls well within the gamut of the unreasonableness argument. That is unreasonable in itself because the right of entry policy has no application, it is not the law, it is Telstra's policy. It certainly, in our submission, can't be applied or imposed on the union.
PN1543
Now, Telstra can have all the policies it wants and it does have a lot of policies. It can have a right of entry policy but the reality is it has no relevance to the union, it cannot be imposed on the union and we think it is completely inappropriate that this has occurred in the circumstances of this case. And their own evidence is that the - that Telstra have regard - Ms Schroter's own evidence was that, when she was cross-examined, was that she relied almost exclusively on the right of entry policy and when she was asked to make the decision about the conference room.
PN1544
And when she was asked whether she believed that she could direct Ms Lillis as though Ms Lillis was an employee of the company she agreed with that. She said, yes, that is what I think I can do under the right of entry policy. I mean, that has got to be a concern to the union if it has been applied that way, but in any event, even if it was being applied in a more reasonable way, we still say it is flawed, it is not the law, and certainly where it is inconsistent with the Act, it falls a very, very long second. It is about 100 metres - a couple of furlongs beyond the winner and the winner is division 11A.
PN1545
So we say that Telstra's policy on right of entry goes well beyond the requirements of the Act, in that it applies criteria upon which the manager must assess the matter of a location which is not consistent with the Act. In any event, the employer has no right, in our submission, under the Act to determine, having regard to the objects, scope, thrust and overall scheme of the Act, the location where the union holds its discussions, and therefore its decision to require the union to use the conference room based in part or in whole of Telstra's policy is unreasonable.
[3.17pm]
PN1546
Now, we think it is appropriate, and if I can just digress, Commissioner, we think it is appropriate that the Commission deals with Telstra's right of entry policy in this decision. Now, I don't really want to expand this issue beyond where the Commission wants to go, and I understand that I might be causing some inconvenience for the Commission in asking this, but where you get serious industrial disputes, which have now been before the Commission for three days, which have caused us to spend considerable time and cost on this matter, and where we have had to travel to Brisbane for two days, and on another occasion for one day, where Telstra is relying on its policy, we think the Commission should give consideration to produce in its decision something to give the parties some guidance in the future, particularly Telstra, about the application of its policy, and we submit that the Commission is almost compelled to say in its decision that the policy doesn't establish a proper basis in whole or in part, in any way, for Telstra's decision to give us the conference room, or its decision in all of the other locations where it uses the right of entry policy to determine a location which, in our view, is not the appropriate location.
PN1547
In any event, the Commission should certainly be minded to say that the policy cannot be imposed on the union. Yes, if it wants to have its policy it can have hundreds of pages of policy on right of entry. That is great. But where it imposes on the union, or where it is contra to the intention of Parliament and the express legislative rights that are given to the union under Division 11A, the Commission needs to give Telstra and the union guidance on this matter and have something to say about Telstra's right of entry policy.
PN1548
Now, in that regard, Commissioner, if I can take the Commission to 285G, and I don't know that these submissions have been made in any other decision, but I think they need to be made. The Act does say at 285G that:
PN1549
...in spite of section 89A the Commission may exercise its powers -
PN1550
and it is a discretion -
PN1551
may exercise its powers under Part VI of this Act to prevent and settle industrial disputes about the operation of this Division.
PN1552
"To prevent". So what the Parliament has done is given the Commission a power, not only to settle disputes but to prevent disputes. Now, I think that is very interesting. It is our submission, Commissioner, and we haven't led evidence about this. We have focused on this case. But it is our submission that there are disputes everywhere about location between Telstra and the union. I don't think this would be a novel submission. There have been other matters in October last year before the Commission which involved Maroochydore, Burwood, Wollongong, not resolved. There was no application for orders by either party, not resolved, still not resolved.
PN1553
We have seen what has happened to Maroochydore. It ended up six months later before the Commission in this application, which is now being determined. But quite frankly, although I have been with the CPSU for a relatively short period of time I am now aware that if I wanted to I could go back to my office this afternoon, and I could notify about 100 disputes, believe it or not, about this issue. Now, I am not necessarily - - -
PN1554
MR TRINDADE: Commissioner?
PN1555
THE COMMISSIONER: Yes?
PN1556
MR TRINDADE: I am loath to interrupt during the submissions, but it seems to me that Mr Veenendaal is clearly indicating that this is not matters that have been in evidence before the Commission. I don't see that they are matters that are relevant to the issues that are in dispute in here, and I am just wondering - I am obviously happy for there to be some latitude to try and understand how this was, in any way being brought into relevance to the matters that the Commission has been asked to determine, but I am really not sure where this is all going. I mean, Mr Veenendaal says these are matters that he hasn't led evidence of.
PN1557
He refers to a range of dispute where there has been no evidence of. They are not referred to in the outline of submissions. It seems to me to be a wholly new ground that he is traversing, as opposed to something that was being foreshadowed in the matter, and I think perhaps if there are other issues, they might be properly dealt with by other applications or other mechanisms.
PN1558
THE COMMISSIONER: Yes. Mr Veenendaal?
PN1559
MR VEENENDAAL: Well, Commissioner, we didn't need to lead evidence because it is - the Commission is well aware that there are disputes already before this Commission which can actually be re-enlivened at any time, and I have mentioned three locations in three different - two or three different States. Wollongong, Burwood, Maroochydore. In three different States there are currently matters before the Commission which deal with this issue of location, or which where the issue of location has been the subject of an industrial dispute. Now, what we say is that the Commission does have prevention powers, and it has the capacity, the jurisdictional capacity to exercise prevention powers, apart from the powers of settlement.
PN1560
This - my submission is that the orders that either party seek really is a settlement power. We are settling in a dispute about location. I am submitting that given that there are disputes about this everywhere, that the Commission may be minded to have a look at the prevention powers under the Act and make some reference in its decision to the right of entry policy. Now, I am not suggesting - I mean, I think, you know, if Mr Trindade gives me a chance I am going to expand this submission briefly. But I am not suggesting that the Commission make orders about Wollongong. I am not suggesting that the Commission make orders about Burwood. I am advised by my organisers they have lunch room access nowhere in WA, nowhere in New South Wales, and nowhere in Victoria.
PN1561
That is why I say I could go back to the office and notify 100 disputes, because in all of those areas we want the lunch room, but we are not getting it, and Telstra relies on its right of entry policy, either in whole or in part, in those various locations. Now given that is the case, we think it is appropriate, and the Commission doesn't have to listen to me, and the Commission can say, "Well, in the circumstances of this case I think it is appropriate to say something about the right of entry policy." But I am saying is that if the Commission isn't minded to do that in this case, I am trying to convince the Commission that it would be useful for the Commission, as part of its prevention power, to avoid me going away and notifying lots of disputes, if I choose to, or for more of these disputes to arise in the future, as part of its prevention powers to say something about the right of entry policy.
PN1562
That is really all I am saying here. None of those disputes in those other - the disputes that are currently before the Commission in Wollongong and Burwood, or in Maroochydore for that matter, are as yet settled. We are going to settle Maroochydore hopefully fairly quickly. But the prevention powers enable the Commission to, in our submission, to say something about the right of entry policy, or alternatively, if that is not acceptable, the Commission may be minded to make some - to create some law, or to say something about the right of entry policy which the parties may have regard for in other locations in Telstra.
PN1563
Now, I don't want to have heart surgery about this, because I don't want to keep the Commission any longer than I have to, but the Commission would be aware that - or clearly, the Commission is aware that the prevention power is in 285G. Now, there is a Full Bench decision in Moranbah where the Commission found that industrial disputes under 285G are not restricted by the statutory definition under section 4(1), and the Commission can make orders about local disputes. Now a lot of the High Court authority about prevention powers relates to logs of claims and disputes where the statutory definition would apply. Notwithstanding the Moranbah Full Bench decision, we still say that some of the High Court dicta that has come out recently about the prevention powers under the Constitution, for example, may be relevant to this case, and may be something that the Commission would want to consider.
PN1564
A decision, for example, like Wool Dumpers, a 1989 High Court decision, where the views of Murphy J in some earlier decisions like The Queen v Isaac and others, ex parte SEC in Victoria, and The Queen v Turbet and others, ex parte Australian Building Construction Employees and Builders Labourers Federation - - -
PN1565
MR TRINDADE: Commissioner, I was wondering if the matters - if the cases that are being referred to, perhaps if they would be provided.
PN1566
MR VEENENDAAL: No. I am not going to provide the cases. They are cases that are well known to industrial parties. I am not going to refer to dicta. I am simply referring to High Court principles - - -
PN1567
THE COMMISSIONER: Yes.
PN1568
MR VEENENDAAL: - - - that arise out of this case. I mean, these are not major parts of our submission. We are making the submission, and we make it robustly and fervently, but we are not providing those authorities.
PN1569
MR TRINDADE: Well, with respect, Commissioner, it seems to me an extraordinary suggestion that these submissions could be made to have relevance to matters in issue before the Commission, and yet they are made on the basis that they are not in the outline of submissions that Mr Veenendaal has filed, the cases aren't referred to, they are not handed up in the useful bundle that he has provided. He seems to be making a rolling wall of submissions that relate to matters that don't really relate to the facts in issue in the case, don't relate to any issue in dispute between the parties, and then says that he won't provide the cases.
PN1570
It makes it impossible for us to reply to those matters. A suggestion would be that if Mr Veenendaal doesn't want to provide those cases and wants to raise other issues, those things would be appropriately dealt with in other proceedings. I am mindful of the fact as well that we have taken up a lot of the Commission's time with this matter. I would have thought that both parties would want a resolution. If we are going to raise issue after issue after issue and make it a rolling wall, well, the Commissioner - we could be here for another six months dealing with these issues, which I think would be in no-one's interest.
PN1571
THE COMMISSIONER: Yes, Mr Veenendaal?
PN1572
MR VEENENDAAL: Perhaps I can give Mr Trindade a bit of comfort. I don't expect I will take six months. I think I will probably take about another half an hour, so, you know, I think that is a bit of an exaggeration. The submissions are relevant directly to this case, because their own evidence relies almost wholly, in our submission, on the right of entry policy and the manager's assessment against it, and we make the submissions in that context. We think it is reasonable. If Mr Trindade is concerned about wanting to have a look at the authorities I am happy to give him 24 hours, seven days, and he can make some supplementary written submissions, having then gone back to his office and had a look at the authorities.
PN1573
If I am remiss in doing this I apologise to Mr Trindade and to the Commission, if that is an inconvenience to him. But I have got to say Mr Trindade is very good at quoting High Court decisions and not providing them, like Jones v Dunkel and I think there was another case he provided about educing evidence or whatever. He doesn't provide those when he makes reference to them, nor do I ask for them. He makes submissions in passing about some of those things when matters come up. Now, this is a little more than that, I concede, but I think it is better if I just get on with it, Commissioner.
PN1574
THE COMMISSIONER: Yes.
PN1575
MR TRINDADE: Now, in Attorney-General for the State of Queensland v Riordan, I would have thought a reasonably well-known High Court decision, a recent High Court decision of 1997, 74 IR 37, Gaudron and Gummo JJ, if I could put it in this context, Commissioner, took up the issue of the prevention powers, and in a joint judgment Gaudron and Gummo JJ argued that:
PN1576
Whether the Constitutional terms "prevention and settlement" were read disjunctively or conjunctively -
PN1577
that is, Commissioner, as either prevention and settlement, sort of in separate - on a separate basis, or prevention and settlement, sort of coined into one phrase -
PN1578
notwithstanding that the preventative aspect of the power should operate to permit laws authorising the Commission to exercise its conciliation and arbitration powers when it considers that an interstate industrial dispute might otherwise occur, or that an industrial dispute exists.
PN1579
So there is some High Court authority, in our submission, which suggests that the dispute actually doesn't have to be before the Commission right now for the Commission to exercise a prevent power, and that is in respect to the stricter definition, at 4(1) of the Act. Now we have got a Full Bench decision which actually says that the definition is a little larger than that, if I can put it that way, that localised disputes can be dealt with appropriately under 285G. All we are submitting here is that as part of the prevention powers under 285G it is appropriate for the Commission to say something about Telstra's right of entry policy, because it may help disputes not arise in the future in other parts of Telstra.
PN1580
Now, I would have thought this is something that Mr Trindade would encourage, and Telstra would encourage. We have spent a lot of time on this case, both of us have spent a lot of time. I mean, I don't mind doing it. It is my job, Commissioner. It is Mr Trindade's job, and it is the Commission's job to make decisions. I am sure none of us are really having a whinge about this, but if we can prevent disputes we will try and do that, and the Commission has a role in that, and I think that given the reliance on the right of entry policy, given the controversy that it has created, I think it is appropriate for the Commission to have a look at that. That is all we say about that.
PN1581
THE COMMISSIONER: Do I have to go any further than simply saying the union's right of entry is governed by the Act, not by Telstra's right of entry policy?
PN1582
MR VEENENDAAL: The Commission can do whatever it likes, and I am submitting that the Commission go a little further.
PN1583
THE COMMISSIONER: Yes.
PN1584
MR VEENENDAAL: That may be helpful, if the Commission was minded to make such a decision. But I think, in my limited experience with Telstra, I find that Telstra calls you on every point, and sometimes their interpretation is very narrow, of legislation or decisions. That is my submission in regards to other matters that I have dealt with, with Telstra, and it might be more helpful if the Commission makes it absolutely clear to all the parties where it sits - where the right of entry policy sits. In other words, the Commission may be minded to say it has no relevance. It may have an internal application to instructing managers about how they approach these matters, but it has no relevance with the union.
PN1585
It certainly doesn't allow the employer to direct, based on this bizarre criteria, that the policy applies. None of those criteria, incidentally, are referred to in Division 11A. None of the eight or nine criteria are referred to in Division 11A. So I think the Commission may be minded to go a little further. That is our suggestion. It is obviously completely up to the Commission as to what it does.
PN1586
THE COMMISSIONER: We can define 24 hours as being 24 hours and not one 24 hour - not 24 working hours.
PN1587
MR VEENENDAAL: Yes. Yes.
PN1588
THE COMMISSIONER: Yes.
PN1589
MR VEENENDAAL: Well, there was a recent dispute before the Commission I think where that issue would have arisen if it had been determined.
PN1590
THE COMMISSIONER: Yes.
PN1591
MR VEENENDAAL: Where - the moving feast of the Telstra policy, where of course it can change at the whim of the executive, and they can simply change the policy without consultation, without any redress, or any accountability, and that is one of the changes it appears they have recently made in a matter that occurred in MRG in East Melbourne a couple of weeks ago, where suddenly Telstra has decided now it is hours, business hours, rather than 24 hours. And this is the difficulty we have, Commissioner. That I would suggest that something from the Commission may prevent a dispute like that happening in the future.
PN1592
In our submission there is no material or argument before the Commission which demonstrates why the restriction Telstra seeks to impose upon the union is a reasonable restriction. In our submission, in Ms Schroter's evidence, there is nothing in there that supports the argument as being a reasonable - the reasonableness of the decision to move us to the conference room, and I have made submissions about the right of entry policy, which is the policy they principally rely on, and I rely on those submissions.
PN1593
They also raise the issue of numbers, and they say that the numbers increased, so as a result we thought the conference room was appropriate. I thought - I have to say, we submit we find that very unconvincing, Commissioner, and even if it was right that the numbers increased from 70 or 60 to 106, which was her evidence, we say 111 in our outline, but her evidence was 106. We find that extremely unconvincing, and there also seemed to be some evidence that the numbers have recently reduced, and their position on the conference room hasn't changed as a result of the reduction.
PN1594
So it would follow, if that argument was a reasonable or logical argument, that when they didn't press the conference room for three and a half years, which is what Ms Lillis' evidence is, two and a half years under Mr Johnson, 15 visits, and 11 visits under Ms Lillis, seven of which for a period of nine months were not - the issue of the conference room was not contested and the history is that we saw people in the lunch room. They seem to rely on this increase in numbers which occurred because some people came in as trainees and there were more people in the lunch room.
PN1595
If that argument was a valid argument then, as the numbers have reduced, which is her evidence that the numbers have now reduced back to 70, then wouldn't the concerns about the conference room and the lunch room drop off? Would that be the case, logically? We think that is a bit of a smoke screen. It is just designed to give veracity or substance to what is essentially a very weak argument that Telstra has about the conference room. What we really have here is - and I particularly refer to this issue of the conduct of union officials. What we really have here is a situation where the union has been substantially inconvenienced, and had restrictions imposed on us which are completely unreasonable in the context of Telstra's claim.
PN1596
Ms Lillis has had to deal with phone calls, paragraph 14, 33 and 46 of her evidence. She has had to deal with Ms Schroter and write letters to Ms Schroter, and reply to letters to Ms Schroter, paragraph 17, 33, 47, 48 and 55 of her evidence. She has had to deal with hindrance and obstruction. Every time she walks in the site there is an argument about right of entry. For nine months there is an argument about right of entry. Paragraphs 20, 27, 29, 36 to 43, 51, 53 of her evidence. She has had to leave the site to avoid conflict on 26 July. She left the side and had the meeting out at the cafe, Danilos Cafe, outside the site, paragraph 22.
PN1597
She has had to relocate herself within the premises. She has had to go from the lunch room to the conference room, paragraph 28. She has had to deal with reduced numbers of members and persons eligible to be members for discussions at the site, paragraphs 23 and 28. Other organisers have had to suffer the inconvenience of turning up, to use her evidence as a witness, or as support and comfort, paragraphs 25, 32 and 49. I mean, this is what the union has had to put up with to exercise what are express rights under Division 11A. I mean, this is extraordinary, and now the company comes along seeking orders, saying that we can't access the lunch room.
PN1598
Really, this has been an extraordinary experience for the union, and it has certainly been a fairly extraordinary experience for Ms Lillis, and there has been a lot of time and cost added, and inconvenience added to Ms Lillis and the union as a result of this unreasonable restriction that the employer seeks to impose. So essentially, we say that the limitations that Telstra seeks to impose unreasonably fetters, if you like, the union's right to have discussions, because it interferes with those discussions occurring. I will refer again to the evidence about hindrance and obstruction. The evidence on cross-examination from Ms Lillis was clear. The hindrance aspect was related to the fact that when she turns up to the site there are delays.
PN1599
There is the mandatory five, 10 or 15 minute argument or discussion, whichever it is, about whether we get to use the lunch room or the conference room. That hinders the union. Mr Trindade seems to make may with the fact that we haven't made an application for penalties. I am not sure whether that is an invitation. The fact that we don't make an application doesn't mean a hindrance didn't occur. The Commission has to look at the evidence to see whether hindrance occurred, and I think the evidence was clear that some time was taken up, which eats into the time that she is at the site to have discussions, with those arguments. That is a hindrance.
PN1600
We don't have to make an application for penalties for the Commission to find that a hindrance occurred. I am not sure whether that is on point in any event, but nevertheless, I want to deal with that matter. We also submit that it is unreasonable for employees to have to seek out an official of the union in the conference room. Rather, the union official should be able to go to employees, and if the union official wants to go to employees, the union official should go to the place where they normally congregate during their breaks. The lunch room. A very simple point, but that in itself, I think, lends to an - or leads to an argument of unreasonableness from the employer's point of view in terms of its preferred location.
PN1601
There was a decision, and one of the decisions in the book, MEAA and the various employers at tab 11, Commissioner Eames, Print Number R1193. A decision of Commissioner Eames, 28 January 1999 does deal with that point very briefly, and I take the Commission to it. If I can take the Commission to the decision on page 4, there is no paragraphs in the decision, and what the Commission poses is a question, about mid-point down the page 4, and Commissioner Eames says, and I quote:
PN1602
Is it appropriate for employees to have to seek out an official of the union for explanations about any proposed agreement or its comparison with an AWA or should the union official be able to go to them in a convenient and appropriate way? I believe the latter.
PN1603
Now, this is not an argument about agreements and comparisons with the AWA, but it is an application pursuant to 285C. It is maybe not on all fours, but it is certainly directly relevant, and that is the dicta, that - or that is what Commissioner Eames finds. I know these cases turn on their own facts, but nevertheless, we think principles can arise from some of these single Member decisions, and the Commission Member, although her refers to the facts of this case, which is the proposed agreement and comparison for an AWA, we think that the principle does arise from this dicta, and the principle is that the union official shouldn't need to be sought out by employees. The union official should be able to go to employees, and of course the order that arose out of this case was a lunch room order. So we think that is relevant to this particular case.
[3.43pm]
PN1604
I want to deal now with the employees' views, Commissioner. The employer submits that employees have complained about the disturbance the unions officials' visits have had upon their meal breaks. We are prepared to an extent to move away from our submissions where we say the employees' views are not relevant. I don't press that part of our submissions that the employees' views are not relevant, but what we say is that the employees' views in respect to determining locations for visits pursuant to 285C - or division 11A need to be put in their proper context and need to be given relevant weight, but we think that is low weight. We don't think that - the issue should turn - this dispute should not turn on the views of employees.
PN1605
If I can take the Commission to the decision of Commissioner Simmonds in AMIEU v H.W. Greenham, PR911794. This is tab 2, and I take the Commission to paragraph 20 and we say in principle again the fact circumstances of this case we agree, but this is where the Commissioner makes some observations about the construction of division 11A doesn't turn on the fact circumstances of the case. A very clear principle arises here in paragraph 20, Commissioner, a very clear principle, and I quote:
PN1606
I would add that the Parliament has not conditioned the right by any reference to the views of employees. Presumably that is because there is no right to hold discussions with persons who otherwise eligible are not willing to do so.
PN1607
End quote. Very simple. What the learned Commissioner suggests is that we are in the lunchroom and employees don't want to talk to the union, they won't talk to them. If the union official was to go up to an employee and say, well - as we heard from Ms Lillis - and ask them as to whether they want to engage in discussions and where they say no it is not pressed. That is not a disturbance, Commissioner - that is not a disturbance. The Commission - the learned Commissioner here says that the Parliament - that is the Act does not refer to the view - does not place any weight or any reference to the views of employees.
PN1608
Now, that doesn't mean that the Commission in the circumstances of this case has no regard. We are not pressing that submission. But I think it is an interesting extract from the decision. It is an interesting piece of dicta. We think the principle arises. It is the only decision that I could find that clearly deals with the issue in a very concise way and clearly deals with the issue on construction without reference to the facts - the fact circumstances of the case. And we think that could be adopted by the Commission - that principle should be adopted by the Commission in this case.
PN1609
Now, if I can also take the Commission to the Full Bench decision, the Moranbah Decision. That is tab 14 I think - tab 15. Now, about three-quarters of the way down page 14 this decision, apart from some of the important jurisdictional components of the decision - this decision also deals with the issue of disturbance and inconvenience, and this is dot point 6, the paragraph that starts:
PN1610
Whilst the primary issue raised by the appeals...
PN1611
And I will just take you to the third sentence, and I quote:
PN1612
First it is submitted -
PN1613
it is the employer -
PN1614
that the underlying purpose of section 285C is to facilitate discussions with persons who want to have them. It is inappropriate to permit access to a common area such as a meal room because it may be frequented by persons who do not wish to engage in discussions and who might be inconvenienced or worse.
PN1615
End quote. Now, what the learned Full Bench says in that case is we reject the company's submissions. It was that submission that was rejected and a number of other submissions made in the couple of paragraphs that proceeded and in that paragraph. Now, it is not - the Full Bench isn't saying it is of no relevance, but Telstra seems to be suggesting - and I hope I don't do it disservice - Telstra seems to be suggesting - because we heard from Mr Trindade last time that if one employee complained it might be minor to bring an application. It is clearly - this is clearly not an issue.
PN1616
If the Commission in this case is to determine that the employees are inconvenienced, for example, the employees are disturbed, the nine statements are right, the ballot says something about that issue to the Commission - if the Commission was minded to see the issue that way that shouldn't - the issue - it shouldn't turn on that - it shouldn't turn on that. Clearly the Full Bench here has said if there is evidence before the Commission about inconvenience it doesn't necessarily - or we think the principle arises, is the issue shouldn't be determined or shouldn't turn on that particular issue. So I think that the issue needs to be given appropriate weight; in our view it is less weight than more weight.
PN1617
In consideration of this issue of employees' views we submit that there is no firsthand evidence that employees have the view that the use of the lunchroom by union officials is a disturbance or inconvenience. We have got the nine statements; that is hearsay evidence. They are attachments to Ms Schroter's statement. Now, Mr Trindade was of a style where he comes along last time and ambushes us with those nine statements and then says we can cross-examine people if we want, when clearly the parties are allocated two days of hearings in Brisbane, because we thought we had three witnesses to deal with.
PN1618
If he makes that invitation and I didn't take it up - didn't take it up in part because the ballot, of course, was then ordered by the Commission - but we think it is a fairly strange or insincere way to invite us to cross-examine when clearly the company could have provided the nine statements as part of the directions in relation to the filing and serving of evidence as witness statements, in which case we probably would have cross-examined one or more of those people, and presumably we would have had a three day hearing as a result instead of a two day hearing. But the substance of it is, and the facts are, it is not firsthand evidence, it is secondhand. It is hearsay evidence by way of those statements being appended to Ms Schroter's statement.
PN1619
And in any event if the Commission accepts the views of those employees that the use of the lunchroom by union officials is a disturbance or inconvenience, as I have suggested that has to be balanced against the right of a union to conduct effective discussions and the balance of interest in our submission lies squarely with the union; no doubt about that. The Commission may also obviously want to consider it as an issue of weight. The Commission might be minded to say, well, look, the statements are - I accept the statements, but our submission would be the Commission must give them less weight because those witnesses, to quote some things that Mr Trindade has said before in these proceedings, it is up to the union to adduce evidence.
PN1620
Well, it is also up to Telstra to adduce evidence and it failed, for whatever reason, to adduce evidence from those people. It chose to adduce evidence from Ms Schroter, relying on a series of statements. And there was also in the transcript some evidence from Ms Lillis; yes, again, hearsay evidence, that those people were called in to her office and statements were taken from them. I think the evidence is not clear that those people went to Ms Schroter and actually made a complaint. There is also evidence from both Ms Lillis and Ms McDonald that they have received no complaints from any of those people, including one of those persons who is a union member, over the course of the last several years and during the issue of the dispute, about the issue of lunchroom access.
PN1621
So you would think that if these were genuine concerns they might actually go to the organiser, or Ms McDonald, and lodge a complaint about Ms Lillis being in the lunchroom, but that didn't happen. Now, I want to deal with the ballot very briefly. Ms Trindade has already made submissions and I don't intend to go into a lot of detail, but the Commission has ordered a ballot; we have a result. We lost, Commissioner, it seems. There were 64 addressees who were sent papers. Now, 29 of them indicated a response to question 1 - a positive response and, therefore, there were 29 votes. So what that actually means, Commissioner, is that 57 per cent of those eligible didn't vote. Now, that means more than half the people eligible we haven't got a view about the lunchroom.
PN1622
Now, we can infer from that perhaps that they are not concerned about Ms Lillis using the lunchroom. So we could infer that 57 per cent of people whose views are unknown of the 64 - who chose not to cast a vote are not concerned about Ms Lillis' use of the lunchroom. So we can infer in our submission that it is certainly not a disturbance or inconvenience for the 57 per cent. We then also have 12.5 per cent of the staff who said the lunchroom is the way to go. So in our submission just shy of 70 per cent of the site either doesn't have a view or is in favour of the lunchroom. Now, 32 per cent of the staff said the conference room. 21 out of the 29 - or 21, more relevantly, out of 64. 32 percent, less than a third of the employees, has said the lunchroom.
PN1623
Now, we made some submissions earlier about some concerns we had about the skewing of results. I am not going to go through those submissions again. We said that the ballot should include the labour hire people; it didn't. We say that the seven managers, who is more than 10 per cent of the ballot, clearly were going to vote for the conference room - clearly, and they were included in the ballot and we expressed concerns about the skewing of the result there. We also expressed a result about the approximately 20 - concerned about the approximately 20 CEPU members that I am advised are on the site and their organiser is happy with the lunchroom - the conference room.
PN1624
So in that effect - the effect of that is that we think where the organiser clearly is not pressing for the lunch room, then why would the members say anything but the conference room. Now, those 20 people may not have voted. Maybe all of the 20 people voted; we don't know. But in proportionate terms we would reasonably anticipate that some of them voted - some of them were amongst the 29. So all of these things - I think the ballot result, apart from the submissions I have already made about nearly 70 per cent of the total sample being in favour of the lunchroom or not having a view, needs to be considered in the context of the sample as well.
PN1625
But there is a real issue here - and this almost gets to the nub of the issue - about this issue of disturbance and about inconvenience, and that is that the union conducted 11 visits over the course of something like 18 months I think and probably 9 months of this dispute occurring - 11 visits. Now, Mr Trindade when he cross-examined Ms Lillis said at one point:
PN1626
You haven't spent much time at the site, have you.
PN1627
And she agreed she hadn't spent much time at the site. That is what he said and she agreed. Now, we agree she hasn't spent much time at the site - 34 hours in 18 months, uncontested. In fact the company is of the view that she hasn't spent much time there. So let us assume - and there was some evidence about rosters - I think it was a little unclear about whether people would generally have half hour or one hour rosters, and let us look at the worst example. A one hour roster for an employee every time Ms Lillis is on site - we know there are some part time employees, some casual employees who wouldn't be there full time, but let us say it is a full time employee, they are there every time Ms Lillis is there, they have 11 one hour lunch breaks, so that means they are exposed to Ms Lillis over 365 days in the calendar year for 11 hours.
PN1628
Now, let us look at the working time very briefly. 365 days in the calendar year - you can minus 104 days for weekends; there are 11 public holidays, 20 annual leave days, 11 RDOs, so that leaves 146 working days in a calendar year. 365 days minus 146 is 219 days of work. Let us look at the average of say 8.2, 8.21 - there was some evidence about 7.21, 8.10, 8.2, 8.4 - let us look at 8.21 - I don't really mind if the Commission looks at 7.21, whatever - so we have got 219 days at 8.21 hours a day. The total working hours for the year is 1579 hours at work, so if they take a one hour lunch break they are exposed to Ms Lillis for .69 per cent of their working life, less than 1 per cent. If they take a half hour lunch break, it is better .35 per cent.
PN1629
Now, what this terrible inconvenience has to be balanced up against is the rights of the union under division 11A. Now, even if these employees are terribly distressed, inconvenienced, disturbed by Ms Lillis' presence, if they take a half hour lunch break they are exposed for .35 per cent of their working life over the course of a calendar year, or in the worst case scenario of an hour lunch break, .69 per cent of their working life. Now, is the Commission seriously going to be minded to grant an application on the basis of that level of inconvenience and disturbance? I mean if Ms Lillis was there once a week, well, the Commission would want to perhaps be mindful of giving more weight to the employees' views about disturbance.
PN1630
Ms Lillis has been there 11 times over the course of 18 months. This really has to be considered - this can't be serious in fact. This application which relies on inconvenience and disturbance just can't be serious. So it is an issue of weight perhaps and we think the Commission should be giving no weight, or very little weight to the views of employees, and certainly what weight it does attribute to the views of employees has to be considered very fervently and strongly, having regard to the objects of the Act and the objects of - the general objects, the objects of 187A, the objects of 88A and the scope, intent and thrust of division 11A and the efficacy of the discussions which the Act has - Senior Deputy President Williams says where the Act is not only designed to protect but to promote. That is the holding of discussions.
PN1631
Now, there are some decisions where the Commission has had regard to the issue of disturbance and almost overwhelmingly the Commission has found in the cases that the presence of a union official in the lunchroom should not be a disturbance. The MEAA and Various Employers I have previously referred to in the decision of Commissioner Eames. He found that the presence of the union official in the lunchroom, and I quote:
PN1632
...should not in my view interrupt their breaks.
PN1633
End quote. That is what Commissioner Eames found. There are some other decisions which briefly refer to the issue of disturbance. Some of them say that it has to be a significant disturbance. I think there is a decision of Senior Deputy President Williams that says that. I don't refer to it here. Now, what we have got to look at is the real reason for preventing lunchroom access and in our submission Telstra's application is coloured by firstly the bullying issue, the evidence of Ms McDonald. That is where the union raised an issue on 13 March. What we have is a situation where the union for three and a half years, Commissioner, is granted access 26 - 22 visits - 22 visits over the course of three years - three and a half years where the union accesses the site and there is no issue about lunchroom - a long history of lunchroom access.
PN1634
The last visit where it is not controversial is 21 February 2002. Then on 13 March Ms Lillis writes to Ms Schroter about the bullying issue. That is what happens on 13 March - after 21 February, no issue - two weeks earlier no issue about conference room, lunch room, Ms Lillis turns up, goes to the lunchroom, as she had for the past six or seven visits, writes the letter on the 13th. Then her next visit is 9 April. Never received a letter, never contested and on 5 April she gets a letter from Ms Schroter, sorry, conducted this assessment, can't use the lunchroom, have to use the conference room. Now, our submission is that the evidence - contrary to what Mr Trindade says the evidence of Ms McDonald stood up very well under fairly fervent cross-examination.
PN1635
In our view she is a very credible witness, very forthright, very credible. Her evidence stood up. The Commission doesn't have to draw a conclusion that that was the reason, but I think it colours the application. Some inference can be drawn from the fact that for three and a half years we get in with no difficulties and suddenly we don't get in and the first time an issue is raised with Ms Schroter about bullying and harassment she is a little sensitive, she decides to punish the union. She punishes the union by saying you can't have the lunchroom any more, you have got to have the conference room.
PN1636
Well, there is a logic to that. Where would Ms Lillis have found out about the issue of bullying. Would she have found out on 21 February perhaps. I concede we didn't draw evidence about that, but she goes to the site on 21 February, has discussions with employers on 21 February, some issues about bullying are raised, a letter is written on 13 March and then we are punished. We are no longer able to use the lunchroom - colours Telstra's application. Then we get the evidence about the discussions at Christmas, well into the dispute at this stage - they are well into the dispute. Ms Schroter says some things that are contained in Ms McDonald's statement. She denies them, not surprisingly, so it is really an issue as to what evidence the Commission refers.
PN1637
But we simply submit that - and I will go to the evidence in a bit more detail in a moment, but we submit that the evidence of Ms McDonald - Ms McDonald stood up, is credible and should be accepted on both of those issues. So we say the issue of bullying is a credible alternative explanation from that of increased staff numbers, particularly in an environment where staff numbers have fluctuated over a period of time, but this issue has just arisen and then been followed through in a particular period of time. And the application is also coloured in our submission by the discussions that occurred between Ms McDonald and Ms Schroter where Ms Schroter seems to indicate that she prefers a union and wants to give the CPSU a hard time and that is certainly - the evidence is that she has given us a hard time over right of entry.
PN1638
THE COMMISSIONER: I propose to adjourn for about 20 minutes. There is a decision I have got to issue at 4.30 and I just need to make sure it is in order. So I will adjourn and resume at about 20 past. The matter is adjourned briefly.
SHORT ADJOURNMENT [4.05pm]
RESUMED [4.34pm]
PN1639
THE COMMISSIONER: Thanks, Mr Veenendaal.
PN1640
MR VEENENDAAL: Yes. Thank you, Commissioner. I want to deal now very briefly with the Duncan decision. That is the decision at tab 9, sir, the decision of the then Deputy President Duncan on 18 November 1999 at Print Number S1028. It is the decision that is referred to in Telstra's outline. I say a couple of things about the decision. Firstly, it is a single Member decision, so in that context it may carry no more or less weight than any other decision of the Commission. But we respectfully submit that the decision should carry less weight for a couple of reasons, and was probably wrong, and I will go to that in a moment.
PN1641
There are nine decisions in our folder of the Commission subsequent to the Duncan decision. None of those decisions are - and I am reasonably certain about this. At least, Commissioner, I couldn't find any reference to the Duncan decision in any of those nine decisions, whereas we can find reference to, for instance, the Leading Synthetics decision in some of the decisions of the Commission. So we would respectfully submit that a decision like Leading Synthetics should carry more weight in this Commission as currently constituted than the Duncan decision.
PN1642
We also respectfully submit that the Duncan decision was made after your decision in Leading Synthetics, Duncan was November 1999, your decision was 3 June '99, and failed to consider your decision in the context of - the Deputy President failed to consider your decision, in our submission, in the context of his conclusions and we say he erred in doing that. I also submit that the Moranbah Full Bench decision which comes after the Duncan decision puts point 4 of his conclusions at paragraph 30 into a proper context, and certainly reduces the weight that he found, that the issue of disturbance or inconvenience was in respect to the competing demands of usage of the room, and he does seem to make quite a bit of that in his decision.
PN1643
I want to turn to, too, the four points in his Honour's decision. They are at paragraph 40 on page 7 of the decision. Firstly, his Honour says that Telstra offers alternative accommodation, which is his opinion, or the conclusion that he draws is that the alternative accommodation doesn't inhibit the actual discussions, and that is the essential thrust of point 1 of paragraph 30. Now, we say that there is evidence in this case where - which, in our submission, should be accepted by the Commission. It was uncontroverted or unchallenged evidence, particularly the evidence that I have referred to in the relevant paragraphs, 1114 to 1118, Ms Lillis, and also paragraphs 23 and 28 of her submissions, where there is evidence that the conference room in this case is worse.
PN1644
So we distinguish the fact circumstances of our case from point 1 of his Honour's decision in that regard. If I can take you to paragraph 2 of Deputy President, at that time, Duncan's decision. There is no evidence of any custom and practice of lunch rooms being used as a union meeting room. Now, again, we respectfully submit firstly that he may have been too narrow in making that decision on the basis of meetings only, because of course the purpose of section 285C is to have discussions. We submit that those discussions can involve meetings, but we are prepared to concede that if there are union meetings, they would be more properly held in the conference,, and our outline of submission clearly indicates that we are prepared to concede that, that if there was a meeting of 10 union members about, for instance, an EB vote, that that should be more properly held in the conference room.
PN1645
But where there are discussions, they should be held in the lunch room. So he refers to custom and practice in respect to union meeting rooms. We say that the fact circumstances of our case are distinguished in any event because the history of this site over at least three and a half years, in unchallenged evidence, that is, Mr Johnson's time as an organiser for two and a half years, and Ms Lillis for nine months, over seven visits, is that the lunch room is used for the purpose of union discussions. So we distinguish again, in terms of point 2. In respect of point 3, his Honour the learned Deputy President says that CPSU advances forewarning the use of the lunch room, a desire to increase its profile, while the purposes of the power at 285C is the holding of discussions, and increasing the profile of the union is a consequence of the exercise of the power, and not a reason for it, for the purposes of 285G.
PN1646
Again we say that the fact circumstances of this case are distinguished, in that there is no evidence here educed or led by the union about a flag flying exercise. That is not what this is about. We have been very clear, in our submission, in respect to submissions we have made and evidence that we have led that what this is really about is the efficacy of the holding of discussions. Not about increasing profile. We have said that we are in part, incidental to the discussions, quite open to the - or hold a view that recruitment can occur incidental to discussions at 285C. But that is not a flag flying exercise. That is a proper exercise of the powers under 285C.
PN1647
So again we distinguish the fact circumstances of our case to the circumstances of the case of the union in that matter. Then fourthly, and this is really the last reason he gives of the four reasons, he says there is a question of competing interests in respect to the lunch room, and he says:
PN1648
While I agree with Mr Ramsay that the use of the room is not to be determined exclusively or by the needs of Ms Joanne Taylor -
PN1649
who was a person who claimed there was some disturbance or concern about the use of the lunch room impeding on her private time -
PN1650
Telstra does not have to make a decision when the competing interests are raised, and there is no particular weight to be given to one competing legitimate use over another.
PN1651
In our - - -
PN1652
THE COMMISSIONER: I think you read that wrongly, didn't you?
PN1653
MR VEENENDAAL: Have I, Commissioner?
PN1654
THE COMMISSIONER: I thought you said "Telstra does not".
PN1655
MR VEENENDAAL: Sorry:
PN1656
...does have to make a decision...
PN1657
I beg your pardon, Commissioner.
PN1658
THE COMMISSIONER: Yes.
PN1659
MR VEENENDAAL:
PN1660
...does have to make a decision when the competing interests are raised, and there is no particular weight to be given to one competing legitimate use over another. The evidence of the use of lunch rooms as a break from the pressures of the job advanced on behalf of Telstra is a strong point supporting Telstra's decision.
PN1661
Firstly, I need to put that into the decision of - your decision in Leading Synthetics, followed by at least - followed in at least four or five other decisions, where clearly the view of the Commission in those cases was that where there is a competing interest the views of the union take primacy. So we respectfully suggest he errs there, and it - the decision was made after the decision of Leading Synthetics was handed down, and secondly, he says it is a strong point supporting Telstra's decision. We respectfully submit that, notwithstanding his Honour's conclusions there, that in this, notwithstanding that there may be some evidence, first-hand hearsay evidence about that, we have made submissions about weight, and we rely on those submissions about weight.
PN1662
We don't think this is a weighty argument. I note also it is point 4 of the four points, so I respectfully suggest it is probably the last of the four points. I think the weight given in this decision to the four points means that the most important point was the first point, and the least important of the four points was the last point. But nevertheless, he does say it is a strong point in favour of Telstra's decision. I respectfully suggest that none of the other decisions of the Commission in respect of this, have made that finding. Quite to the contrary. They have made findings, putting the views of employees into a particular context, and I have referred to some decisions earlier in my submissions about that particular issue, and we rely on those earlier submissions.
PN1663
In respect to the issue of inconvenience anyway, we also rely on the submissions we made earlier about hours of - hours that the organiser is actually in the workplace. So there is an issue of weight there as well, Commissioner, where Ms Lillis, over 18 months, is in the workplace for 11 hours, or in the alternate, if people have half hour lunch breaks, five and a half hours, in respect to where those people actually suffer, if I can use that particular phrase, the inconvenience, if there is an inconvenience, of Mr Lillis being in the lunch room. So even if the Commission was against me on that particular submission, and the submissions we made earlier, we suggest that, or we submit that the issue has to be given weight, and really, it has to be given very little weight in the context of that level of exposure over the course of an 18 month period.
PN1664
I have also referred earlier to the Moranbah decision, which again is a later decision, where in our submission, and we refer to a particular paragraph of that decision earlier, where in our submission this argument about disturbance has to be put into a particular context, and that is - that reference was page 14 at dot point 6, where I made some submissions about the Full Bench's rejection of company submissions about the inappropriateness to permit access to a common room such as a meal room because it is frequented by persons who might be inconvenienced or worse by those discussions occurring in that particular place.
PN1665
So we say the balance lies - a balance of convenience here lies squarely with the union in respect to those matters. So what we say is, we also say in respect to the decision of his Honour, Deputy President Duncan, that those four issues, or those four factors upon which have led him to the conclusion that no order should be issued for use of the lunch room are cumulative. So even if the Commission as currently constituted was against us on one, two or even three of the points, it is still open for the Commission to find for us, or if you like against Telstra and for us in respect of the order that we seek.
PN1666
What I want to do now is refer to some of the evidence very briefly, and then I want to deal with Mr Trindade's submissions in reply. I expect I am probably going to be another 15 minutes. It is our submission that Ms Lillis was tackled regarding a number of issues during the course of cross-examination. At paragraph number 1242 to 1269 she was tackled on a failure to produce a notice of entry in regard to an entry that occurred on 22 August 2002. In our submission there was a reasonable, plausible explanation given for that failure to provide a notice, and that was that she was invited to a meeting in respect to a disciplinary hearing, and on re-examination that was confirmed, in that Telstra never requires a notice of 24 hours right of entry when the organiser is in fact invited for a meeting like that. It wasn't actually a visit pursuant to 285C.
PN1667
At paragraph number 1271 to 1291 Ms Lillis was tackled on the issue of an e-mail sent to members, on or about 9 April, regarding a visit, advising of alternative arrangements to the lunch room. In our submission, Ms Lillis addressed that adequately. She indicated that she was not advised about where the designated area was, and as a result she appropriately, in her evidence stated that she wasn't advised about the alternative arrangements, because she wasn't told where the designated area was, and that was confirmed in re-examination. We say that is a plausible and credible response, and we say that on that particular issue where she was tackled her evidence held fast.
PN1668
At paragraph number 1293 to 1302 she was tackled by Mr Trindade on the issue of not signing the visitors book on 9 April. Again, in our submission, she addressed that issue in cross-examination, as she didn't actually enter the site in the first instance because she entered the fish bowl. Now, in the inspections, Commissioner, you say, we all saw that the fish bowl is a room that actually is situated prior to entering the site via the book. The book is situated or located beyond the entrance to the fish bowl. So it is our submission that if an organiser comes into the site and is brought into the fish bowl to have a discussion immediately, that given that she hasn't passed the book, it wouldn't be unreasonable for her not to sign the book, and again, in our submission, on the basis of her being tackled on that, there was an adequate, plausible answer given.
PN1669
She was then apparently taken into the site to be shown the designated area. So I can imagine a scenario where she is taken out of the fish bowl, straight into the site to see the designated area. Now, yes, she didn't sign the book, but the manager, Ms Schroter, was with her and was escorting her to that particular part of the premises. Now, if she needed to sign the book Ms Schroter should have told her that she needed to sign the book on that occasion. Again, I don't think that, as an issue of credibility, goes against her, Commissioner.
PN1670
At paragraph number 1317 to 1329 she was tackled regarding the issue of hindrance, and this is really the only concession that is given. The concession is given at 1329 where Ms Lillis concedes that the evidence she gives in her statement is slightly different. That the evidence she is giving in cross-examination is slightly different to the evidence in her statement. So that concession is given, but on re-examination it is our submission that clarification is given to that concession, and it is very clear that the issue of hindrance in her statement refers to the issue of the time delays that occur as a result of the discussions that happen every time she comes to the site about which room she is going to be having discussions with. So on cross-examination, in our submission, that issue, or that concession initially is dealt with, in a credible and plausible way.
PN1671
So we say that Ms Lillis is a credible witness. We think it is open to the Commission to conclude that she is a credible witness whose evidence should be accepted, and where there is a conflict of evidence it is open to the Commission to prefer her evidence to the evidence of Ms Schroter. Contra to that, Commissioner, if you look at the evidence of Ms Schroter, I think in summary that sometimes it - at various times it is inconsistent and confused, and I respectfully submit there is one point in the evidence where she simply lies. Now, if I can take the Commission to paragraphs 183 to 185 of the evidence, and if at the same time I can take the Commission to AL8, the attachment to Ms Lillis' statement. That is the transcript.
PN1672
On paragraph 183 and over the page, it is a fairly long paragraph. About halfway down the page she suggests that Mr Waters makes the comment:
PN1673
Oh, we are taking it back.
PN1674
So I think any reasonable person, looking at that in its ordinary English sense, would probably see some sarcasm there or some level of aggression. But if you look at the transcript, Commissioner, and this is page 3 of the transcript, which is AL8, what we respectfully submit Mr Waters said was:
PN1675
So you have provided it to me, so please don't take it back.
PN1676
Puts a slightly different context to it. So perhaps Ms Schroter's recollection is not that great, but I put it to the Commission that she is simply telling an untruth there. Now if I can take the Commission to paragraph 184, where she says that Mr Waters says - and this is the second last line, and I quote:
PN1677
It is off, see.
PN1678
Again, although we don't get the tone obviously out of - there is no tonal context to that because she is reciting what she believes Mr Waters said, I think if you look at the ordinary English sense of it, it is fairly aggressive:
PN1679
It is off, see.
PN1680
It is not a particularly nice tone that is perhaps used, or a nice set of words that is used. But if you look at the transcript at AL8 on page 1, about halfway down the page, what Mr Waters actually says is:
PN1681
They are off.
PN1682
Not:
PN1683
It is off, see -
PN1684
in an aggressive manner -
PN1685
They are off.
PN1686
That is what he actually says. Then if you look at paragraph 185, he said - this is halfway through the paragraph, at four lines in from the bottom of the page. He said:
PN1687
Why? Have you got something that we don't want to hear?
PN1688
Very sarcastic. That is what Ms Schroter says he says, he said at that particular part. What he actually says, Commissioner, and this at the top, near the top of page - of the first page of the transcript at AL8, is, and I quote:
PN1689
You don't want a record kept?
PN1690
It is a question.
PN1691
You don't want a record kept?
PN1692
Not:
PN1693
Why? Have you got something that you don't want us to hear?
PN1694
Again a different - although we haven't got the tone here before us, in its ordinary English sense a different context. So I think that, in our submission, needs to be taken into context in terms of Mr Trindade's submission about her credibility. There were also parts in the evidence where, in our submission, she is just outright confused about what this is all about. At paragraph number 1364 to 1367 she contradicts herself about the meaning of meetings and discussions, and bearing in mind that she is a manager who is to make a decision about location, based on one of the criteria, which is the history of union meetings.
PN1695
At one point in the transcript she says, she believes a meeting is not a discussion, or a discussion is not a meeting. But then, five minutes later she says:
PN1696
Well, actually, I don't think there is any difference.
PN1697
I mean, she is a little confused about the concept of meetings and discussions, which clearly there is a distinction between a meeting and a discussion. There is also the confusion that she has about her ability to direct a union official, where she concedes openly that she directs a union official as though the union official was a Telstra employee. Now, a manager with that level of understanding, Commissioner, I think the evidence in terms of its weight has to be considered. I am not suggesting that she is telling an untruth there, or that in that occasion her evidence is inconsistent. I am simply saying that she shows a complete lack of understanding, as a manager who makes decisions under the right of entry policy, about what all of this means.
PN1698
That is an extraordinary misunderstanding, and her own evidence, of course, refers frequently to the concept of trespass, a common law property right concept. Trespass has nothing to do with Division 11A. We are not coming into Ziggy's private home here, where we can be accused of trespassing or charged with trespass. We have a right of entry and she, in her own evidence, her own witness statement refers on at least two occasions to:
PN1699
You are trespassing. Get out, or I will tell you to get out, if you don't do what I say.
PN1700
Extraordinary stuff. Extraordinary stuff, and this is their witness. Now there is a lot said about her, about inappropriate conduct, to use Telstra's word, by industrial officers or officials at the site. Now, at paragraph number 228 to 232 she openly concedes that the two letters she requires the union to sign, at AL7 and AL14, are part of the inappropriate conduct, which has led to the application. So what she says is the union officials haven't signed this letter, and that is inappropriate conduct. They can't be serious, Commissioner. Where does it say in Division 11A that we need to sign letters which have Telstra's right of entry policy reproduced, and if you don't sign this you don't get in? This is what Telstra tells us.
PN1701
Now, she says that is part of the organiser's inappropriate conduct. I also suggest in respect to inappropriate conduct that most of the conduct that Telstra relies on is in the context of the industrial dispute. The bringing of other union officials, the bringing of Mr Waters, happens in the context of the industrial dispute. That is part of the subject matter of the dispute. It is not as if union officials are coming in and talking to people during working hours or anything like that, or, you know, ranting and raving or disrupting or doing something like that, or not giving 24 hours notice, or not being permit holders. This inappropriate conduct, if it is conduct that is inappropriate, and we submit it is not, but if the Commission is minded to think that some of the conduct or all of the conduct is inappropriate, it is conduct in the context of the industrial dispute.
PN1702
There is a discussion. If Ms Lillis goes from the lunch room - the conference room to the lunch room, it is in the context of the dispute, because she believes she has a right to be in the lunch room. That is not inappropriate conduct. That is conduct in the context of the industrial dispute, which the Commission now - is currently before the Commission. In respect to the OH and S issues, Telstra relies, I think, mainly on the issue of the mobile phones and there is some transcript about that. Now, it seems that it was conceded mobile phones were not turned off. There was an issue about how many times they were told. We say once. They say three times.
PN1703
The Commission - I don't think it is open to the Commission, in our submission, for the Commission to make an order against us on the basis of one OH and S breach, and it is also openly conceded later on, by Ms Schroter, that people do it all the time. The failure to turn mobiles off seems to happen, in her own evidence, a lot of the time, from members of the public and other people, and that occurs at paragraph number 254, where:
PN1704
There have been past instances where many people at the call centre, not just this year, last year and the year before have failed to turn off mobile phones, and what they do is they simply walk outside.
PN1705
Now, it doesn't seem to be a big issue and I think that evidence, that is Ms Schroter's evidence, the evidence of failing to turn off mobile phones needs to be considered in that context. There is no evidence from Telstra about communication of the policy to the union. How was it communicated? Was it communicated at all? That is - it needs to be put in that context, and of course, the evidence itself is contradictory and conflicting. Initially when she is asked by me about that particular issue, and I suggest to her that is that the only OH and S issue, and this is at - between paragraph number 245 to about paragraph number 252, she says - this is what she says:
PN1706
No. Not the fact that they didn't turn them off. The manner in which they spoke to the members of the management team is one of the issues.
PN1707
She then later on says the failure to turn them off is another issue, but the first issue she raises here is the issue of the failure to turn them - the way they spoke to management. So - and she actually uses the word "the lack of respect":
PN1708
The fact that they didn't, and they didn't show respect for the policy at the centre is the issue.
PN1709
I mean, I respectfully suggest that not talking to managers with respect is not an OH and S issue.
PN1710
Now in the issue of disturbance at paragraph number 376 Ms Schroter openly concedes that could be the case, that employees don't consider Ms Lillis' attendance in the lunch room as a disturbance. In fairness to her she says it is a possibility. In paragraph number 386 she concedes that four of the nine person who have made the statements at exhibit T2 have found an alternative to the lunch room when Ms Lillis is there. So in respect of four of the nine their issue has been resolved. They are happy to find an alternative venue, have lunch somewhere else, go to the shopping mall or some of the other alternatives that Ms Schroter gave as evidence.
[5.01pm]
PN1711
At paragraph number 1124 to 1127 and paragraph number 1704 no-one complained to Ms McDonald or Ms Lillis about the issue over the course of the last two years, that is, the issue of disturbance, no-one has complained. That is the evidence from Ms McDonald who is the delegate and Ms Lillis. Neither Ms Schroter has complained nor any of the employees and in fact there is evidence in the transcript where, admittedly first hand hearsay, where Ms Lillis states that those person were asked into the office one by one and asked about the issue of disturbance and then statements arose from those people.
PN1712
Just in respect to that right to direct Ms Schroter - Ms Lillis as though she is a Telstra employee, reference to that is paragraph number 453 and the reference to where Ms Schroter believes that it is available for her to give a direction to Ms Lillis as though - I beg your pardon. The direction about - the direction to Ms Lillis as though Ms Lillis is an employee of Telstra is paragraph number 455 and at paragraph number 453 Ms Schroter says that she believes the right of entry policy gives Telstra a right to direct Annette Lillis into the lunch room.
PN1713
So that is the context of this policy - being applied at this site and I rely on the submissions I have already made about that in respect to the right of entry policy and the fact that it is a flawed policy, etcetera - the submission that we make, I should say, that it is a flawed policy. So this is a witness who, in our submission, totally misunderstands the nature of the relationship between a union and employer, for example, and the rights conferred on the union under division 11A and I think her evidence needs to be considered in that context and I think that is an issue of weight given to her evidence.
PN1714
In respect of Ms McDonald we submit that she was a credible witness that withstood challenge in respect of the issues of bullying, the attitudes of - and in respect of the attitudes of Ms Schroter regarding the discussion she had about the role of the CEPU and CPSU on site. Where there is conflicting evidence about that - those matters - and there is obviously - we respectfully submit that it is open to the Commission to prefer the evidence of Ms McDonald in that regard. I want to just briefly deal with Mr Trindade's submissions but have gone a little over time but if I can try and deal with that, Commissioner.
PN1715
Mr - I have dealt with some of this already so I might miss some of the bits where I have dealt with it but the lunch - Ms - Mr Trindade refers to the evidence of Ms Schroter, the lunch room should not be used for meeting rooms, it is a place for recreation. We say that is an issue of weight and we have made submissions about that previously in a range of areas and we rely on those submissions. At paragraphs 19 and 20 Mr Trindade referred to Ms Schroter's evidence that she finds the lunch room also unsuitable for discussions.
PN1716
I rely on the submissions I made about Ms Schroter's difficulty in distinguishing meetings and discussions or finding any difference between them and also the submissions we have made about the right of entry policy as a factor considered by Telstra managers in their decision making process. The evidence regarding managers observing people going in and out of the lunch room or the conference room, we don't rely particularly on that as an argument, or advance that as an argument, against the grant of the application.
PN1717
But I would make one distinction particularly in respect to the issue that was also raised at that time about meals in the conference room and I think it is a significant distinction. Yes, we concede that people can bring meals into the conference room and it is one thing to say that they can eat in the conference room, but it is a totally different thing to say that do they normally eat in the conference room, and of course, they don't, the evidence is all one way, they eat in the lunch room and that is the real point that I think the Commission needs to look at in terms of that part of the evidence.
PN1718
Mr Trindade submitted that there was no evidence given by the union about the use of the conference room that would hinder discussions except to spruik our services. Now, I reject that, there was evidence and I have referred to the evidence of Ms Lillis, paragraph 28 and 23 and 1114 to 1118. We say there is clearly evidence that was lead by the union on that regard and we certainly have never said that it is about spruiking - spruiking our services. He questions the desire of Ms Lillis to avoid confrontation or conflict in respect to the relocation to the conference room because she comes back to the lunch room.
PN1719
Well, I think the facts speak for themselves in that matter. She clearly relocated to the conference room to avoid disputation but then she relocates back to the lunch room, because the efficacy or effect of 285C and the purpose of her being there, was being hindered - was being inhibited, impeded because no-one was coming to see her in the conference room, that is the real reason she went back to the lunch room not because she wanted to get back into a conflict with Ms Schroter.
PN1720
In respect to the tape and the inference to Jones v Dunkel that Mr Trindade referred to. Well, Jones v Dunkel is a case where an inference can be drawn by the Commission where no evidence is lead or adduced. Well, we have lead evidence, we have got the transcript which is an attachment to Ms Lillis' statement, we have got the tape and we have offered to tender it. And if there is any doubt about this issue it might be appropriate for me to tender the tape. So I do that now, I tender the tape.
PN1721
The reason we didn't attach the tape is pretty obvious. I have never been in a position where I have considered attaching a tape to written evidence, that is why we did the transcript because it is a more reasonable and palatable way and accessible way to adduce evidence, but if there is any doubt about this, I think that the Commission should have the tape, so we formally now tender the tape.
PN1722
THE COMMISSIONER: Mr Trindade.
PN1723
MR TRINDADE: Commissioner, I object to this. It was clearly put at the time that it was up to the union to determine what it wished to tender. Mr Veenendaal chose not to tender the tape. He now seeks to tender it - on what basis he seeks to tender it. He is not calling the maker of the tape, he is not calling the person who made the tape or made the transcript, he is simply seeking ..... from the bar table at a time when the evidence is closed in this matter and it has been closed for some amount of time.
PN1724
It is not new evidence, it was evidence that was in the union's possession at the time. They made a choice not to tender it, we didn't have the opportunity to cross-examine on it and it seems to me that it is wholly unsatisfactory for this - purported to be tendered now after they have heard the submissions, after they have realised, perhaps, they have made a mistake in not tendering it, or perhaps they have, you know, realised that there are submissions made that are adverse. And we are asking the Commission to draw adverse inferences from not tendering it and they suddenly say, well, we are now going to tender the tape.
PN1725
It is not in the interests of the Commission - and we would say this is a very important relevant factor in determining whether to accept the tape - it is not in the interests of the Commission that parties should be able to seek to re-open their case at any stage before judgment simply on the basis that they don't think that they got the right mix of evidence and tendered the right amount of evidence at the time. We made submissions as to the tape at the time. We indicated clearly that it wasn't in evidence and they had not tendered the tape and we say - we stick by those and that Mr Veenendaal now trying to introduce the tape at this late stage simply should not be allowed.
PN1726
THE COMMISSIONER: Thank you. Mr Veenendaal?
PN1727
MR VEENENDAAL: Well, we did offer to play the tape on 2 May when Ms Schroter seemed to be suggesting that the transcript was not accurate. There is evidence that has been lead by Ms Lillis who has heard the tape that the transcript is accurate. She has checked the transcript, she has checked the tape and there is evidence to that effect. Now, we did not think this was going to be controversial but Mr Trindade has made a bit of a big deal of it earlier this morning so, now, I want to tender the tape.
PN1728
We were not going to tender it, yes, we chose not to tender it, that is true. What I would suggest is that if - - -
PN1729
THE COMMISSIONER: I am not sure I am going to be assisted by the actual tape. If upon a review of the evidence it becomes pivotal I may change my view.
PN1730
MR VEENENDAAL: I am simply saying that we have got nothing to hide here, Commissioner, we really don't and if the Commission wants to accept the tape as tendered evidence and listen to the tape privately, it can verify, if it wishes, the voracity or accuracy of the transcript. I won't press the application to tender.
PN1731
THE COMMISSIONER: Thanks, Mr Veenendaal.
PN1732
MR VEENENDAAL: There was some submissions made by Mr Trindade about T2 that we chose not to cross-exam so therefore it is uncontroverted evidence. A rather extraordinary submission, it is first hand hearsay evidence and it needs to be given the same weight as a lot of the first hand hearsay evidence which commonly, in fact, it occurs in a Tribunal like the Industrial Relations Commission. We are not in the Federal Court of Australia, we are not the Magistrate's Court, rules of evidence don't apply and it is not uncommon for parties for a range of reasons some of them involving convenience, some of them involving costs, not to always fly witnesses up or bring witnesses up.
PN1733
Maybe that was the reason why, in part, Telstra chose to tender the statements on the day as it did. That is fine if that is the case but I don't think the Commission needs to draw any inferences or is available to draw inferences by the fact that we did not cross-examine on the day when we were ambushed with the evidence, and we say, it probably was - there was an element of tactic in it. In an environment where sufficient time had not been given to cross-examine another nine witnesses and at a point where we clearly had not had time to prepare for cross-examination, and I have to say, I am not a lawyer, Commissioner, but I like to prepare for cross-examination.
PN1734
I don't like to do it with people handing me or passing me up little yellow stick-it notes to cross-examine witnesses, it doesn't seem appropriate to me, so on that basis, we did not cross-examine. Mr Trindade tendered an exhibit T10, which is an e-mail from Ms McDonald and it is the first time I have seen it, but what I would say about that is - he drew some conclusions then about that this may have influenced the ballot and it is contrary to directions. Now, I have to say, Commissioner, and the Commission will correct me if I am wrong, but Ms McDonald was not subject to the directions.
PN1735
The parties who were subject to the directions was the union and the union officials like myself and Ms Lillis and Telstra. She wasn't subject to the directions, she was not in the room when the directions were made and clearly she could not be subject to the directions because she was not made aware that a ballot was even happening and we certainly didn't make her aware that a ballot was happening. So I would respectfully suggest that at the time she issued this e-mail she did not know a ballot was happening.
PN1736
I respectfully suggest - also will submit, there is no evidence that it influenced the outcome of the ballot. There are some other things that I have noted here but I think I have dealt with them in submissions so I won't press them here, issues that arose out of Ms McDonald's statement, I won't press those things here. I will press one thing though and that is this hay that Mr Trindade makes about the conversation and he seems to suggest that, because Ms McDonald suggests in her evidence that the conversation took place and then conceded later on that she was almost mute or said very little, somehow leads him to a conclusion - or Telstra to a conclusion that her evidence should not be accepted, that is, discredited, or as a witness, she is less credible.
PN1737
She did say it was a conversation, I am not sure how else she would describe it, but she also clearly said she did not have much to say but she does provide in her evidence an explanation for what the conversation is. I might just see if I can go to the reference, if I have got it.
PN1738
THE COMMISSIONER: I can go to it subsequently.
PN1739
MR VEENENDAAL: Where she says:
PN1740
Well, a conversation is something that occurs between two people and sometimes one person says less than the other person and does a lot of listening.
PN1741
THE COMMISSIONER: Yes.
PN1742
MR VEENENDAAL: Now, to somehow then draw a conclusion that she is a witness who lacks credibility or her evidence should not be accepted for that reason, is quite frankly, extraordinary. The fact that Mr Waters or Mr Richardson, or anyone else, hasn't given evidence I rely on submissions I have made earlier about the reasons why evidence is lead and the factors that come into a party's mind when they lead evidence. I don't think it is open to the Commission, as Mr Trindade suggests, that certain inferences should be drawn as a result of Mr Waters or Mr Richardson not giving evidence in this matter.
PN1743
As to evidence where no source is attributed and Mr Trindade relies on the Tenix decision, I really think that is an issue of weight. I don't think it is an issue of admissibility. Of course this is the Commission and rules of evidence don't apply and first hand hearsay is common in the Commission and it is an issue of weight and we accept that less weight is given to evidence which is adduced in a form like that. So if I can just conclude very briefly. For all of the reasons we advance, we submit, that the Commission should not grant the orders as sought by the company and we say so because there is no good reason to deny lunch room access in the circumstances of this case.
PN1744
Lunch room access is appropriate having regard to the overall scheme of the Act. Lunch room access is appropriate having regard to the union's special place in the Act. The lunch room provides an appropriate location for employees to have discussions with the union during their meal breaks or other breaks in a location that is prescribed by the employer for the employees to take their breaks. In our submission, it is most convenient for employees to have discussions in the lunch room. The employees do not have to seek out their union official where their official is located in the lunch room but would have to seek out the union official in the conference room.
PN1745
There is a history of use of the lunch room at the site for discussions. The use of the lunch room would be limited to discussions only and Telstra places a lot of reliance, in our submission, on an assessment of the appropriate room against its policy and its reliance on the policy is flawed because the policy has no - is not the law, effectively, is not the law. And of course we have advanced submissions about the plenary right that division 11A confers on the union to decide what the appropriate location is, and our secondary submission there, was the incidental right incidental to the powers under particularly section 285C.
PN1746
Now, we briefly conclude by saying the Commission should grant the union's order, the alternative order, because the lunch room is the appropriate place for a range of reasons. There is a legislative code set up to deal with the issue of entry by the union to a premises occupied by an employer where we have members or persons eligible.
PN1747
THE COMMISSIONER: If you are right I don't need to grant your order, do I?
PN1748
MR VEENENDAAL: I beg your pardon?
PN1749
THE COMMISSIONER: If you are right I don't need to grant your order?
PN1750
MR VEENENDAAL: Yes, that may be the case but we are suggesting you do in the circumstances of this case, in any event.
PN1751
THE COMMISSIONER: Yes.
PN1752
MR VEENENDAAL: Because, clearly, it resolves a dispute. It doesn't - we don't say it actually stops the Commission from granting an order and I think I made some - - -
PN1753
THE COMMISSIONER: Yes, indeed.
PN1754
MR VEENENDAAL: - - - submissions about that earlier which we rely on. The statute, in our submission, directly affects, and is designed to affect or subjugate the common law property right of the property owner or lessee. That effect - the effect of the Act is that it overrides those common law property rights. The Parliament, in our submission, has considered the issue of establishing a legislative right to allow occupiers to designate a location. The Parliament has rejected that particular scheme, that was the 1999 Amendment Act.
PN1755
Having regard to division 11A and the overall scheme of the Act, we say, it is the intention of Parliament to enable the permit holder to determine the location for discussion that best suits our needs to enable us to give proper effect to the legislation subject only to the permit holder meeting the legislative requirements. Alternatively, we say, that the lunch room is both incidental to the Act and the lunch room for that purpose is also necessary to give effective operation to division 11A and particularly 285C in this case.
PN1756
The requirement that we have discussions in lunch - in breaks and the evidence that breaks are held in the lunch room leads us to that conclusion and should lead the Commission to that conclusion. Now, I have already made submissions about the issue of unreasonableness and I rely on those submissions. So if those submissions are rejected then the alternative submission is that we say the restriction Telstra seeks to impose is an unreasonable restriction and therefore the order they seek should not be granted.
PN1757
And I am sorry I have been very long, Commissioner, probably a lot longer than I expected but it is a serious matter for the union and I have to do it justice, so I apologise for the length of time and if I have impacted on Mr Trindade's response - I hope I haven't and I apologise if that is the case and that concludes my submissions.
PN1758
THE COMMISSIONER: Thanks, Mr Veenendaal. Mr Trindade, would you be content to respond within seven days upon receiving the transcript?
PN1759
MR TRINDADE: If the Commission would like the response in writing I am happy to do so, Commissioner.
PN1760
THE COMMISSIONER: Yes, save giving you 10 minutes now.
PN1761
MR TRINDADE: I don't believe I could do them justice in 10 minutes, Commissioner.
PN1762
THE COMMISSIONER: Very well.
PN1763
MR VEENENDAAL: I probably could take that as a criticism, Commissioner, but I won't.
PN1764
THE COMMISSIONER: No, no.
PN1765
MR VEENENDAAL: When would Mr Trindade be required to respond?
PN1766
THE COMMISSIONER: Within seven days upon receiving the transcript.
PN1767
MR VEENENDAAL: Thank you, Commissioner. Is the transcript going to be expedited?
PN1768
THE COMMISSIONER: It will be a couple of days. Thank you very much. Well - - -
PN1769
MR TRINDADE: Commissioner, I might only make one comment in respect of that and that is only that - I actually work part time and so it may be that I may need to make arrangements with your associate for the transcript if it is going to be delivered on a day that I am not working.
PN1770
THE COMMISSIONER: Sure.
PN1771
MR TRINDADE: To be delivered so that it can be got to me in a convenient way.
PN1772
THE COMMISSIONER: You can liaise with Ms Bartlett and we can e-mail it to you, possibly. No doubt Big Pond services your area. Very well, I will - we will simply, upon receiving your submissions - I will do no more than adjourn now and reserve my decision. Thank you for your assistance.
ADJOURNED INDEFINITELY [5.24pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
EXHIBIT #TELSTRA9 OUTLINE OF SUBMISSIONS PN1114
EXHIBIT #TELSTRA10 E-MAIL FROM MS McDONALD DATED WEDNESDAY, 07/05/2003 PN1215
EXHIBIT #CPSU3 WRITTEN SUBMISSIONS FROM MR VEENENDAAL AND SUPPORTING ORDER 25.3.03 PN1317
EXHIBIT #CPSU4 PROPOSED ORDER PN1322
EXHIBIT #CPSU5 EXTRACT FROM A BILL, SCHEDULE 13, ENTRY AND INSPECTION OF PREMISES BY ORGANISATIONS PN1389
EXHIBIT #CPSU6 VARIOUS DECISIONS PN1462
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