C2002/5745, Transcript of Proceedings [2003] AIRCTrans 312 (3 February 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT DUNCAN

C2002/5745

FINANCE SECTOR UNION OF AUSTRALIA

and

GIO AUSTRALIA LIMITED

Notification pursuant to section 99
of the Act of a dispute re alleged unfair
ballot for a non-union agreement

SYDNEY

9.32 AM, WEDNESDAY, 15 JANUARY 2003

Continued from 20.12.02

PN59

THE SENIOR DEPUTY PRESIDENT: Good morning. Alterations to appearances.

PN60

MR S. PENNING: Good morning, your Honour. With leave, Penning solicitor and with me I think continuing previous appearances are

PN61

MS. D. HANNAN from the FSU and MS H. LEWIS.

PN62

THE SENIOR DEPUTY PRESIDENT: Mr Harmer, any objection to the leave matter.

PN63

MR HARMER: Not at all, your Honour.

PN64

THE SENIOR DEPUTY PRESIDENT: haves we dealt with that completely in this matter as far as your own appearance is concerned>

PN65

MR HARMER; In this matter, yes, your Honour, although I would note that whilst I am here for GIO and leave previously has been granted in respect of legal representation, I did previously raise an application by leave to both hear and intervene on behalf of Suncorp Metway Staff Pty Limited previously these proceedings. That application was stood over whilst we went into conference. I am instructed to formally review that application for intervention and I hope to give notice to my friend of that, the simple rationale being that there are two parties to the 170LK agreement that is listed later in the morning and the second party is the second company which I seek leave to intervene. Thank you, your Honour.

PN66

THE SENIOR DEPUTY PRESIDENT: Is that all clear.

PN67

MR PENNING: Mr Harmer did raise that matter with me a few moment ago. That is correct, your Honour. Could I ask that that application for leave in respect of Suncorp Metway be stood over briefly to allow me to obtain some instructions on that. We will probably deal with it later in the proceedings today.

PN68

THE SENIOR DEPUTY PRESIDENT: As long as we do. All right then that is what I will do.

PN69

MR HARMER: May it please the Commission.

PN70

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Penning.

PN71

MR PENNING: Your Honour, what I propose to do is briefly outline the purpose of the re-listing of this matter and the approach which the Finance Sector Union seeks that the Commission take in relation to the section 99 dispute notification and that would have consequences and effects for the subsequent application listed at 11.00 am for the certification of the integration agreement.

PN72

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Harmer.

PN73

MR HARMER: Your Honour, I apologise to Mr Penning. It is just the indication that has just passed from my friend's lips that there will be consequences for the LK proceedings causes me to raise a preliminary issue at this time out of concern for the propriety, as I can put it that way, of this proceeding in conjunction with the LK proceedings and, with respect your Honour, subject to the Commission's views, I seek to briefly outline what the concern is and to ask through the Commission for the union to address certain issues without entering into the detail in these proceedings of what they say are issues going to the certification proceedings. If the Commission pleases.

PN74

THE SENIOR DEPUTY PRESIDENT: I am not sure that I understand that, Mr Harmer.

PN75

MR HARMER: Thank you, your Honour, if I may then elaborate.

PN76

THE SENIOR DEPUTY PRESIDENT: Yes, I think it would be wise.

PN77

MR HARMER: Thank you, your Honour. Again, I apologise to my friend. I will try and be brief.

PN78

MR PENNING: Your Honour, I don't seek to cut off Mr Harmer but might it not be more appropriate if I were to outline the matters that we seek to raise now in respect of the matter that is before the Commission, that is, the section 99 notification.

PN79

THE SENIOR DEPUTY PRESIDENT: It would seem desirable that I hear you as to what you want to do first. The consequences are a matter which can be considered after you and I have both heard what they plan. At this stage I am in the dark.

PN80

MR HARMER: Your Honour, the reason why I rise at this time is that the issue that we raise may be contravened, if I can put it that way, by even the opening submissions in this matter and for that reason I would seek to very briefly elaborate on that issue. If, with respect, the Commission sees limited weight in the point we raise then, again, with the apology, Mr Penning can proceed with his opening. I think it is important that this issue be canvassed briefly at this time and the Commission be able to proceed with the matter averting what we respectfully submit is a potential infection if you like from this matter to the proper conduct under the Act of the 170LK proceedings. I think it is important that your Honour hears and understands the point prior to allowing the union to address what may be effectively issues going to the certification proceedings in this matter.

PN81

THE SENIOR DEPUTY PRESIDENT: I dislike entertaining submissions in a vacuum which is what I would be doing if I were to grant you that permission. What I will do is this: I will hear Mr Penning, you are at liberty to raise your matter again when I have some concept of the context in which it's going to appear. I prefer to do that rather than, as I say, take what is almost a hypothetical situation.

PN82

MR HARMER: May it please the Commission, thank you.

PN83

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Penning?

PN84

MR PENNING: Thank you, your Honour. Your Honour, the purpose of the re-listing notification is to raise what in the FSUs view, are very significant concerns regarding processes and events in the period immediately prior to the ballot for the Suncorp GIOA General Insurance Business Integration Agreement. It's also for the purpose of raising significant concerns in relation to the method of the conduct of the ballot itself. Your Honour, the FSU is in a position today, if the Commission considered it appropriate, to lead initial evidence about several of the matters of concern.

PN85

Late yesterday, witness statements were provided to Mr Harmer's firm for three employee witnesses from whom the union would propose to call and rely on evidence. Your Honour, two of those employees are in the Commission in Sydney today. The first is Linda Hawkes and the second is Larry Stevens. There is a third employee of GIO Australia and a person who would be affected by the proposed Integration Agreement who is in Melbourne and for whom a witness statement has been provided to Mr Harmer.

PN86

Your Honour, I would propose to hand up and file in court copies of witness statements for those three people.

PN87

THE SENIOR DEPUTY PRESIDENT: You have seen them, haven't you?

PN88

MR HARMER: They were received late last night, your Honour, I understand around between 6.53 pm for the first and 9.18 pm last night for the second and third. I understand there are a further two statements from the union. If I can just say at this stage, your Honour, whilst we have a brief glance through them I am not in a position to either object at this stage or to cross in relation to them. My own view would be that rather than them being formally tendered at this time that issues of program, if we reach that point, should be addressed with the witness statements being dealt with as a whole in that context rather than being handed up at this point in time, if the Commission pleases.

PN89

THE SENIOR DEPUTY PRESIDENT: Yes, I can see that. I can see emerging, and I am probably wrong, what the basis of your concerns are in relation to the 170LK matter, which is an advantage of having let it get this far, Mr Penning.

PN90

MR PENNING: Your Honour, I propose to file the statements in the Commission, but I clearly understand what Mr Harmer is saying. We did discuss that matter beforehand. While we sought to be ready and as ready as possible to progress the matter today in the way that we hoped it would proceed, that is by the witnesses being available and by the statements being provided in advance, even though there was not a timetable as such for that. I understand Mr Harmer's position in relation to cross-examining the witnesses, given the short period of time that was available to him to receive those documents.

PN91

That is a general factor of the somewhat unavailability of people generally at this time of year and also perhaps the speed with which this matter has moved generally.

PN92

THE SENIOR DEPUTY PRESIDENT: Yes, I take your point. You are seeking to file them in the Commission in the face of the Commission, but file is the operative word. I can't prevent you filing them. As far as I am concerned, if it came to a question of tendering there would be a totally different set of considerations.

PN93

MR PENNING: Yes, your Honour, that's correct, and it may in fact be most appropriate that at the appropriate time they be tendered with the witness who will swear the statement, to be available to be able to attest to that, and to then be cross-examined, so I certainly understand what your Honour says on that point.

PN94

THE SENIOR DEPUTY PRESIDENT: Yes. So I will receive them as being filed in the Commission.

PN95

MR PENNING: Yes, if it please the Commission.

PN96

Your Honour, I have also foreshadowed to Mr Harmer and he has indicated to the Commission that we do propose to file one further statement either with a significant annexure or possibly an additional statement, so that would be two further statements. One of the statements will be from Deborah Hannan, the Finance Sector Union Industrial Officer who has had principal carriage of this matter. In addition the FSU is obtaining an independent expert report concerning the electronic voting system that was used by the employers in the conduct of the ballot in this matter.

PN97

Your Honour, I've advised Mr Harmer and I would advise the Commission that we would believe that the additional witness material would be able to be filed and served by close of business next Monday afternoon, 20 January. Your Honour, briefly the outcome we seek pursuant to the section 99 notification and the general powers that the Commission under section 111(1) are that the Commission fully inform itself as to the processes and matters of conduct leading to the ballot for the integration agreement and to the conduct of the ballot itself.

PN98

Of course, prior to the certification of an agreement the Commission is required to be satisfied pursuant to various sections of the Act of certain requirements, in particular section 170LE - - -

PN99

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Harmer?

PN100

MR HARMER: Your Honour, with great respect, I really must press the issue that I canvassed before now and again, my friend is now moving to what seems to be effectively submissions from the union on the issue of certification and if the Commission will bear me out, even for a minute, I'd just like to raise the nub of the issue and I think that the Commission should - - -

PN101

THE SENIOR DEPUTY PRESIDENT: Yes, if you can do that I'm prepared to hear you because I'm entertaining in my own mind what is the nub of the issue, I may be completely incorrect.

PN102

MR HARMER: Yes, thank you, your Honour. The nub of the issue, your Honour, is this, that as your Honour is aware, section 43 subsection (2) of the Act prescribes extremely limited bases on which unions can participate in certification proceedings, those two bases are set out in paragraphs (a) and (b) of that subsection; the first relates to a union that has been requested pursuant to a notice under 170LK(4) to represent in the course of the negotiation of the agreement and the second one being in relation to a party proposing to be bound.

PN103

We learnt from the union yesterday in correspondence that they don't propose to be bound by the agreement that they propose to oppose. As far as we are aware, there has been no request to us in relation to the union representing on authority an individual and I understand from Mr Penning that the union indeed, will not be appearing in its own right in the certification proceedings but will rather be representing or seeking leave to intervene on behalf of a number of individuals.

PN104

Now, the critical issue here, your Honour, is this: there have been a number of cases before this Commission, including at Full Bench level relating to purported attempts to circumvent that strict statutory intention that unions have a limited say in certification proceedings. Some of those cases have involved attempts by unions otherwise expressly excluded, to appear amicus curie, others have involved attempts to intervene on behalf of individuals, etcetera.

PN105

In essence, your Honour, it is totally inappropriate by use of a parallel section 99 proceeding for a union to purport to make submissions to the Commission member dealing with an LK agreement certification which effectively circumvent that strict statutory intent on the limited role of unions in these proceedings. We seek to go to case law that would reinforce the Commission's, if you like, desire to embrace that intent in rejecting other sham attempts to get around the process.

PN106

Now, we don't doubt that the union has genuine concerns, we don't doubt that they are matters that can be progressed by a section 99 but the application they have effectively made in the letter re-listing that this matter be heard first before the LK process is what we seek to attack, with respect, your Honour and the reason why we did not want the union to get too far is we did not want the Commission to be infected through this proceeding by what will in effect be submissions from an entity that in proceedings proper cannot have a direct say.

PN107

Whether they get in through some other means on behalf of members is a matter for discretion under section 43 in that proceeding but the Commission should not acquiesce in an inappropriate course that potentially affects discretion on the certification process through this means. That is the essence of the problem, your Honour and we are happy to elaborate on that by reference to case law.

PN108

I think however, your Honour, it is clear where the union is headed, that the issues clearly relate to the certification process and there will be a direct clash, if you like, between what is being put in this proceeding and what the Commission will have to properly entertain from entities properly before the Commission in the other proceeding, if the Commission pleases.

PN109

HIS HONOUR: Yes, Mr Penning?

PN110

MR PENNING: Your Honour, as Mr Harmer correctly says that the Commission has certain discretions ultimately certification of the agreement. We would say that it is simply wrong to say that by hearing the matters that are before the Commission now in the 99 notification, there is some form of infection, is the word used by Mr Harmer, we are seeking to raise matters that are relevant and applicable to the 99 notification which has been before the Commission previously and is still before the Commission.

PN111

That in a practical sense perhaps will have some bearing on the certification matters or it may have some bearing, that is a matter for the Commission to exercise its discretion in relation to. There is inevitably, I would submit, an overlap to some extent between the two matters but it is not in any way improper for us to at least be allowed to outline the matters that we seek to raise this morning, to if appropriate, have a short time table for dealing with the evidence in those matters.

PN112

If Mr harmer seeks to raise the further matters which he raises now, on my submission, they are far more appropriate to be raised in the context of the certification application rather than the matter that is now before the Commission. The Commission, of course, is not bound by overly strict rules and that's for an important purpose and naturally the purpose is, or the purpose is shown by these proceedings where it is useful and it is advantageous and its available to the Commission to inform itself about matters which are ultimate relevant both to the 99 notification and to the certification application.

PN113

THE SENIOR DEPUTY PRESIDENT: What is the outcome you seek under the 99 notification?

PN114

MR PENNING: What we challenge, your Honour, are questions as to whether the agreement was genuinely made and genuinely approved by a valid majority of employees.

PN115

THE SENIOR DEPUTY PRESIDENT: Both matters which the Commission has to be satisfied about for the purposes of certification.

PN116

MR PENNING: Yes, they that's correct. Pursuant to section 135(2)(a) and of the Act, and I might ask the Commission to go to that section.

PN117

If the Commission, pursuant to subsections (a) and (b), is required to be satisfied ...(reads)... by the Commission.

PN118

Ultimately, we would seek in this process to put evidence before the Commission as to the ballot process not being fair, not being equitable, and having many thing occur within it which were improper and which the Commission would, in our view and our submission, have a concern with. In those circumstances our submission would be that the Commission could not be satisfied that the agreement had been genuinely made. In those circumstances, if that was the view that the Commission reached, pursuant to section 135(2)(a) the Commission may exercise a discretion to order a ballot in connection with and in accordance with directions that are issued by the Commission.

PN119

In that respect there are many authorities from the Commission but two examples of that occurring in recent times include a matter of Senior Deputy President O'Callaghan on 12 February 2002 in the AFME-PKIU v Electrolux Home Products matter, print PR914264, in which a secret ballot was ordered to be conducted by the Australian Electoral Commission and the ballot was to be conducted by post, sent to the residence of each vote. I can hand up a copy of that if that is of assistance.

PN120

Also a decision of Commissioner Grainger in IGA Distribution Victoria Pty Limited v Shop Distributive & Allied Employees Association print PR908158. In that matter the Commissioner ordered and directed that a secret ballot be undertaken, conducted by the Industrial Registrar of the Commission. Your Honour, I can hand up copies of those cases.

PN121

THE SENIOR DEPUTY PRESIDENT: Yes, I will accept that. Yes, Mr Penning?

PN122

MR PENNING: Your Honour, I would perhaps seek to give a very brief summary only by way of a further and fuller explanation of the matters which the union would seek to raise before the Commission that arise from the witness statements that have been filed in the Commission this morning. Those are these.

PN123

MR HARMER: Your Honour, my apology again but I really must admit that at this stage we're now going to have a summation from the bar table of purported evidence going to the very issues which strike at the heart of the nub, if you like, to the outline previously, your Honour. I think Mr Penning has responded briefly to the point that I briefly raised. In my respectful submission it would be appropriate for the Commission now to properly hear our concern prior to the Commission getting potentially further infected - and excuse me for using that phrase.

PN124

THE SENIOR DEPUTY PRESIDENT: Yes, I must confess it's starting to make me feel like telling you that the Commission is perfectly capable of vaccinating itself.

PN125

MR HARMER: I understand that, your Honour, but there are issues not only of what the Commission may be capable of doing, and I don't demur from that at all, particularly in relation to the Commission as currently constituted, but there are issues properly to be resolved, in our respectful submission, which would impact on not only the potential of a proper hearing in the LK matter but that that proper hearing ultimately be seen to be delivered. As your Honour would respectfully be aware, the issues go not only to the authority of the Commission ably to detach issues and separate matters but that any third party would reasonably consider that a certain process hadn't been impacted, in this case by a party which was not under the Act intended to have a voice.

PN126

To that extent, I appreciate what your Honour says in terms of that summation, but it's our respectful submission that the proper means of vaccination in this matter should be to hear the issue and for the Commission to come up with a procedural outcome that properly protects, with the Commission being alerted to all the relevant issues, as opposed to going too far down the track, which now gets into purported evidence in respect of statements which we haven't had a proper opportunity to review and which will inevitably raise significant issues going to the certification proceedings. If the Commission pleases.

PN127

THE SENIOR DEPUTY PRESIDENT: These statements that you're intending to refer to, Mr Penning, do go to the concerns that the union has which you have referred to already this morning?

PN128

MR PENNING: Yes. What I was going to do is, in some respects akin perhaps to a short opening, was to give a summary of what some of the matters or some of the headings of concern are in this matter and which are referred to in the evidence in the statements. I would characterise it no differently than that. It is effectively an opening. It's effectively a summary or an outline of the general issues that give rise to those two specific concerns.

PN129

THE SENIOR DEPUTY PRESIDENT: Yes. I'm going to permit you to do that. I note Mr Harmer's concern, I'm quite conscious of it, and I want to be in a position to be able to rule appropriately. To do that I need to know what it is that you say which gives rise to Mr Harmer's difficulties and concerns in his own mind. I will hear you on the basis that you have outlined yourself.

PN130

MR PENNING: Thank you, your Honour.

PN131

THE SENIOR DEPUTY PRESIDENT: I might indicate that as a result of my having heard you I may take some little time to consider whether or not I shouldn't call on the next matter in the list to have the aspect of intervention or party dealt with, because I'm satisfied, having heard you both so far this morning, that there lies what might almost be called the nub of the proceedings so far. I just put you both on notice that that's in my mind. I'm not making a ruling.

PN132

MR PENNING: Yes, thank you. Your Honour, the following matters of great concern to the union are raised in the three witness statements that have been filed. I don't seek to refer to specific paragraphs of those witness statements and I don't seek to go to what that detailed evidence would be. That will be a matter which, if directions are made, we would imagine would be dealt with and heard by the Commission in due course.

PN133

The first issue is that the Finance Sector Union's email access to members at Suncorp GIO appears to have been blocked by the companies from 8 November. Your Honour, the email access, on our evidence and on our information, remained blocked to the FSU, to its members in the company who would vote on this integration agreement, for the whole of the time from that date up to and including the week of the ballot which was 11-18 December, so for approximately a four week period.

PN134

Your Honour, the evidence we would seek to lead is that the email access appears to have been blocked without any prior notice to the union. The company's own certification documents and the evidence which no doubt they will ask the Commission in due course to have regard to, including a statutory declaration of Mark Blucher, highlight the fact that a very significant amount of information was advised to the company's employees who would be affected by the vote in this matter, that is approximately 1800 employees at different locations by the company's internet and intranet services. There are many references to the extensive amount of information that the company was able to provide and use to inform employees of in relation to its view seeking a yes vote for the integration agreement.

PN135

Your Honour, the union was at a very significant disadvantage in correspondence with its members as a result of this action. I don't seek to elaborate that point but we certainly will in due course. It had a major bearing on the ability of the union to field questions from its members, advise its members of issues as they arose, comment on those issues in any form of a free and open and fair fashion.

PN136

Three witness statements raise further issues of concern which are outlined of a general nature which include briefly that certain statements and representations were made by senior company management and human resources employees.

PN137

The effect of those statements on employees was that their conditions of employment and security of employment may be adversely affected if they voted no to the integration agreement.

PN138

As a separate point, in at least one instance, there is a denial of access to the union employees in the company at Clarence Street, the main head office building in Sydney, to use the company's premises and meeting rooms for any form of meeting of union members and discussion about the contents of the proposed agreement without the company having its own human resources offices actually in attendance at that meeting. As a result, on at least one occasion, the union employees at the head office in Clarence Street were not able to hold a meeting in the company's meeting rooms.

PN139

A further general issue, the company instituted an effectively compulsory requirement on all employees on either the last day before the ballot commenced or the days immediately before that to attend an information session at which the company again actively promoted through its senior officers a "yes" vote. Those, in a general sense, are major issues of concern about the validity of the process and the events which occurred immediately prior to the ballot which would be raised by the evidence in this matter.

PN140

Your Honour, I wasn't present when this dispute notification was first listed before the Commission and on that occasion Ms Hannan represented the union. I understand Mr Harmer was here. As I understand it there was an agreement in a form that the union would be given a right to scrutineer the ballot process. It was clear in that agreement being reached that this was an extremely contested matter. By way of brief background to the election process itself, and these are issues that will be raised in detail in the witness statement for Debra Hannan and the further report into the electronic voting system that occurred has been - that will be obtained and be filed in evidence in this matter.

PN141

By way of brief background the company has made a decision to use a private company Secure Vote, that was done without any discussion or prior advice to the finance sector union. The union wrote to the company on 13 November and I understand these were matters which were generally canvassed on the last occasion, the matter before the Commission but I just briefly traverse those areas, asking for information. The employers said that they would provide advice in due course but they didn't. The FSU then notified the matter to the Commission and as a result of that, as I understand it, there was an undertaking in a form that the union could scrutineer the process.

PN142

The union presented through its officers to the Secure Votes officers and when they went there they were only presented with a list supplied to Secure Vote from Suncorp, GIO or persons who would be voting. They did not get and were not provided with a list of eligible GIO Australia Limited employees to clearly indicate that they were GIO employees, not Suncorp Metway employees and to determine that those employees would actually and should be eligible to vote in the matter as of course it would be only be the employees who were previously covered and currently remain covered by the AMP GIO Agreement 2000 who would vote.

PN143

On arrival at the Secure Vote premises the union representatives were told that as the vote was to be electronic they would not be able to daily monitor and scrutineer the outcome given the vote was over a one week period, that was the expected outcome. They were informed that the votes would be stored electronically but would not be able to be viewed during the course of the ballot. They were subsequently informed that, as I understand it, the counting of the votes was undertaken offshore, it was undertaken as I understand it in New Zealand. Since the close of the vote the union has attempted through various correspondence to raise matters relating to the voting process itself, including for example why it was necessary for the ballot to go to New Zealand. Of course scrutineering was not possible in that respect. No reply was received, as I understand it, from correspondence from Suncorp and in fact they have indicated generally that they are not going to ask further questions of the Secure Vote.

PN144

In summary, what the union will submit this amounts to is that Suncorp and Secure Vote have agreed to a process to conduct a ballot involving a very significant number of union members, at the time of the ballot approximately 50 per cent of eligible employees, and they have not been able to in any effectively way scrutineer what occurred. In addition, your Honour, to the we say completely inadequate process to allow any objective testing or any objective assessment of the methodology for the vote the FSU will seek to contend to the Commission that the field of electronic voting generally is still a very new and fresh field and that caution ought properly be exercised by the Commission regarding any assertions which are made by the company that the process is bona fide. It is in that context in the sense of an analysis and appraisal of the electronic voting system that occurred that the union has, or proposes to put on the expert evidence about the electronic voting process.

PN145

The key elements the union would generally propose to focus on in relation to the electronic voting process and what we see as a potential lack of integrity include any access to programming codes or data collected during the voting process, we say ought be available for review and as it stands at present they are not. There is evidence which we will put to the Commission where a great degree of caution has been urged by other bodies in similar circumstances to this including the Victorian Electoral Commission where it investigated electronic voting and on-line voting. The process itself needs to identify eligible voter lists, eligibility credentialling. The union is not able to give any indication as to whether those things have occurred.

PN146

There are issues potentially about voter access, voters voting the way they intended, storing and availability of data from voters keypads and other issues of that nature that on our respectful submission, your Honour, ought properly be able to be considered by the Commission in assessing whether there was or was not genuine agreement in this matter and whether the Commission can be satisfied that a valid majority of eligible employees has approved the agreement. Because of the somewhat complex nature of that evidence we seek that it be heard through this proceeding as a separate and discrete matter.

PN147

That is the outline of matters I wish to raise. I just reiterate in a timetabling sense and dealing with these matters I don't think it is proper that Mr Harmer should be ambushed and required, for example, to commence cross examination of our witnesses without having a reasonable opportunity to see what's said and see all the evidence.

PN148

We don't seek in any respect to unduly delay in any way the determination of the issue in total and in that respect as I indicated earlier we can undertake to file and serve our remaining evidence by close of business next Monday and also provide an outline of our submissions in relation to these matters.

PN149

THE SENIOR DEPUTY PRESIDENT: Very well, Mr Penning.

PN150

MR PENNING: If then this is a timetabling question, only then Mr Harmer will be in a position to file something by the end of that week or early the following week we can certainly look at a hearing of the matters we raise at the Commission's earliest available opportunity thereafter.

PN151

THE SENIOR DEPUTY PRESIDENT: And in the meantime the application for the certification of the agreement should not proceed?

PN152

MR PENNING: That's our submission yes.

PN153

THE SENIOR DEPUTY PRESIDENT: Mr Harmer?

PN154

MR HARMER: Your Honour, the opening submissions by the union have crystallised the very concern that the company had when alerted yesterday as to some aspects of what the union had in mind in relisting this matter. It's clear that in essence, without going to the totality of those aspects of what the Commission would have to be satisfied in the certification proceeding that may be impacted by this matter, it's clear that if nothing else the union seeks to challenge, for example, as to whether the Commission can be satisfied that there was a valid majority of the relevant employees covered.

PN155

THE SENIOR DEPUTY PRESIDENT: Particularly that genuine approval or genuine agreement was forthcoming.

PN156

MR HARMER: Certainly, your Honour and, accordingly, your Honour is faced with a situation whereby in a section 99 proceeding, relisted on the same day as the 170LK certification proceeding the Commission has a union purporting to raise issues in the section 99 context which go directly to those matters which the Commission has to be satisfied of under section 170LK and other related provisions.

PN157

So, my preliminary point that we mentioned before, we now seek to press and perhaps I should do that in the context of raising some other issues with the section 99 matter more generally. To that end I will just hand up the brief outline of points, it won't take long, your Honour.

PN158

THE SENIOR DEPUTY PRESIDENT: I will mark this outline of submissions in this matter Exhibit H1

EXHIBIT #H1 OUTLINE OF SUBMISSIONS OF RESPONDENT'S SUBMISSIONS

PN159

MR HARMER: May it please the Commission. Your Honour, leaving aside the first two pages which are just a cover sheet and an index. If I could go to the page headed, Outline of Submissions, which commences with one introduction and those introductory issues have been covered going to leave to appear and intervention, etcetera. The real nub of what I want to raise at this stage is at point 2 which is headed up as a procedural issue although it's one that has substantive impact potentially on the 170LK proceedings.

PN160

We heard from the union and this is a point we make in 2.1 and it seemed to be apparent from their letter of 6 January relisting the matter that they say that this section 99 is related to the 170LK proceeding and they have submitted that it should go before the 170LK proceedings and that is being repeated by the union. At 2.2 we set out I guess a summary of the number we previously described - sorry, 2.3. The Commission in our respectful submission should avert a situation whereby a union which is faced with the restricted intervention provisions which have been intentionally inserted by Parliament in section 43 of the Act should not be able to circumvent that intent by merely running a parallel section 99 proceeding.

PN161

If we just think of the implications, your Honour, there have been so many cases where unions have sought and been denied the right to intervene, there have been findings by full benches of this Commission that that is an absolute, and indeed by the Federal Court, that that is an absolute restriction on the circumstances in which unions can participate by way of submission or anything to do with intervention in certification proceedings and you would have the situation whereby myriad unions that have been told, yes, we understand that in the normal section 43(1) context of intervention of course you have an interest, of course you would normally be in there with a right to intervene notwithstanding that you are not a party. Parliament has spoken and have prescribed the circumstances and we cannot step outside that.

PN162

Now, what the Commission is being asked to endorse is that that's all very well but all you need is a quick device, just throw in a parallel section 99, it doesn't matter who you are, what you're up to, you just turn up on the same day in a separate proceeding and the Commission should turn a blind eye to an attempt to get around that statutory intent and render it nought, render it totally ineffective and so the Second Reading Speeches, the clear words of the section and the things I will take your Honour to just mean nothing, you can just run parallel and say what you damn well like. You can put on evidence, you can go to all the issues of which the Commission needs to be certified and effectively have your intervention because you can address the very Commission member seized with the issue under 170LK and the other relevant provisions in your section 99.

PN163

In our respectful submission, your Honour, that just is not on and the Commission has been equipped with the means to avert that sort of device and the simple means here is to adjourn this matter. Yes, the union if it's got concerns in dispute can deal with them at some appropriate point in time but that's not as a precedent or an issue preceding the LK proceedings. The matter should be properly dealt with with the Commission being addressed by those entitles that have a proper say and unless the union can point to some significant prejudice that would otherwise warrant the Commission running this line which so clearly circumvents the Act, with respect, then the Commission should say to the union, look, understand your concerns but the reality is they can be addressed on another day if they remain concerns but we should get this certification proceeding on because there are a lot of employees covered by the agreement - - -

PN164

THE SENIOR DEPUTY PRESIDENT: That would be a bit like closing the door after the horse has bolted would it not?

PN165

MR HARMER: Your Honour, in our respectful submission no, because the Commission will be properly addressed in accordance with the scheme under the Act on all issues on which it has to be satisfied. If the horse has bolted by the opening, that is what we are trying to avert your Honour but at least we haven't gone into what could prove to be a lengthy week long or a couple of weeks long exchange of evidence and then more formal submissions as to the detail of whether or not there is a valid majority or a need for a further ballot.

PN166

So, your Honour, whilst one might say you can't be a little bit pregnant, it is a situation whereby, again if you will excuse the phrase, if there's a little bit of infection which has occurred through this opening and the Commission has been alerted to some issues the union has, that shouldn't be compounded in terms of impact on the certification proceedings by now entertaining a program of detailed evidence and detailed submissions going to those very issues where the union will have a full voice as if it were effectively an intervener contrary to the Act.

PN167

So, your Honour, we point out at 2.3 that section 43(2) is a relevant provision of the Act as the Commission is well aware and 43(1) of course sets out the general right of intervention and the Commission is well aware of the discretionary issues associated with that section but 43(2) is quite specific on what happens if the matter before the Commission is an application under Division 2 or 3 of Part 6B, the certification of agreement.

PN168

Your Honour, whilst we cannot pre-empt the unions application to intervene in those proceedings, we can only inform the Commission of what we have gleaned through correspondence with the union to date, which is that they don't seek to be a party which seems to deal with 43(2)(b). As I understand it, they don't purport that they were requested to represent a person as mentioned in 170LK(4) which seems to address the other limb. Indeed may, from what I understand from Mr Penning this morning, be seeking to intervene not as a union, not only purporting to have the right to address under the Act, but rather on behalf of a number of employees, presumably members of the union.

PN169

So that the issue as I say without pre-empting, it appears to be directly raised and, your Honour, I have set out three authorities that appear to be relevant. It may assist at this point perhaps not to go too long on the issue. If I just go to one of those cases at this stage. If the Commission pleases I might hand up a copy of the decision of Deputy President Hamilton. Perhaps for completeness and so as not to deny the Commission the opportunity to review the other cases that I have put there, if necessary today I will hand up all three cases. But mainly address the decision of Deputy President Hamilton.

PN170

So there is three cases that I have mentioned there and your Honour there is a list of authorities that I have attached to this outline of submissions which gives the full citation for all the authorities. Your Honour, the decision by Deputy President Hamilton in the Geelong Refinery case effectively at paragraph 1 you will note outlines his Honour's reasons for declining a CFMEU application be heard in a matter relating to certification agreement under division 2 of part 6B of the Act. Your Honour, in this matter the CFMEU turned up and maintained that it would act amicus curiae to the Commission not having a formal right of intervention under the Act. His Honour, the Deputy President at the commencement of paragraph 18 under the heading, "Amicus Curiae and Intervention in the Australian Industrial Relations Commission" sets out section 43 and goes on to analyse that issue.

PN171

At paragraph 29 his Honour notes that the approach taken to section 43 as the Commission saw it, was consistent with that taken by a Full Bench in the CSL Enterprise Agreement case, that being a Full Bench of the Commission. It indicates there in the second sentence quoted that:

PN172

The section is intended to fetter the Commissions discretion by disentitling all registered organisations other than those mentioned in 43(2)(a) for the right to seek leave to intervene other than those with whom the agreement proposes should be bound by it.

PN173

Then over the page, your Honour, there is reference to the decision in the Drawing Manufacturing Company case at paragraph 30 where the Commission was faced with the very issue of an attempt to appear amicus if you like. In that particular matter it is outlined there in the portion quoted that there was no material from which the Commission could be satisfied that employees had made a request for the organisation to represent them and meeting and conferring in terms of LK4. It is then outlined that the party concerned wasn't going to be bound by the agreement and down at the end of the third paragraph there quoted, your Honour, it is indicated by the Commission that the Commission is obliged to refuse intervention.

PN174

Then if I could just go to the last paragraph quoted there.

PN175

That being the case it is my view that it would be almost perverse to treat section 43 as not being relatively exhaustive of the circumstances in which one should allow intervention.

PN176

He notes the position adopted by a Full Bench of the Commission and then continues two sentence on:

PN177

The specification of such a limited and narrow right of intervention in subsection 43(2) is intended to effectively exclude any ...(reads)... discretion.

PN178

Your Honour, what we say in relation to that is that the Commission in the LK proceedings here will have that obligation through the correct parameters and in relation to the parties properly and interveners properly before it to consider the matters that it must be satisfied of. Then over the page the Commissioner continued:

PN179

I must dismiss the application for intervention. It follows in my view as an exercise of discretion that it is not a matter where the Commission ...(reads)... section 43.

PN180

His Honour, the Senior Deputy President then respectfully agrees with that. His Honour, then goes and sets out at paragraphs 32 through to 36 the legislative intent defines that section including quoting from the explanatory memorandum and the second reading speech and comes to the view at paragraph 35:

PN181

It is clear from this legislative history that the legislative intention was to limit to certain defined circumstances those instances where ...(reads)... proceedings.

PN182

He continues at the end of that paragraph:

PN183

I do not believe that the operation of additional discretions to allow appearances amicus curiae is at all consistent with what I believe to be ...(reads)... section 43.

PN184

Paragraph 36:

PN185

Indicates that the CFMEU submissions would enable any intervener to avoid the clear effect of section 43(2)(b) by the ...(reads)... 43(2)(b).

PN186

His Honour there quoting himself from the transcript. What we say, your Honour, is that they are the device if you like that was referred to by the Commission was that of acting amicus in circumstances where there wasn't a right to intervene because of the express intent of section 43(2) of the Act. Here the device if you like, if that is not being unkind to the union, and again I qualify all these submissions by saying, we don't doubt for one minute that the union generally is aggrieved by the issue that it raises nor that they aren't matters that it has a right to progress under section 99. The issue is that it is attempting to do so preliminary to and parallel with if you like, LK proceedings, and in a manner which gives it an effective voice in relation to the LK proceedings and effectively certain events that clear statutory intent.

PN187

As I say, your Honour, if that was permissible then the Commission had best be prepared for just about every union and its dog to be coming here with parallel section 99 proceedings whenever they don't have a right under section 43 to intervene. Because the Commission will have created a precedent to readily get around the matter. As I say the legitimate concerns of the union can be addressed in time and in a fashion that does not effect again exclusive ways of the LK proceedings. Your Honour, the other cases that we have referred to. The PLA case involves the Federal Court dismissing an appeal from a single member and Full Bench of the Commission relating to intervention being sought by an association and certain individuals. Again the strict confines of 43(2) are endorsed by the Federal Court in that context. I don't think I need to go to that decision in detail. It might be relevant again to any later application to intervene on behalf of individuals.

PN188

Your Honour, we are duty bound obviously to raise your Honour's decision in the Telstra case where your Honour did allow Mr Reitano to represent certain individuals and concluded that that involvement of the CEPU on behalf of its members was not a sham device in that context. However, your Honour did in that context reinforce, in our respectful submission, the integrity of section 43 as just the circumstances of that case and the means concerned which saw the union abled not to intervene but to represent certain individuals.

PN189

What we say, your Honour, at 2.4 on the second page of our outline is that the section 99 matter should be adjourned for reasons that I will go to very briefly. We assert the Commission lacks both jurisdiction and power to effectively deal with the issue. The Commission as we have said at (c) there should carefully exercise its functions in the certification proceedings through the manner contemplated by the Act. There are significant adverse implications for the Commission and the integrity of the Act and the system otherwise, in our respectful submission. There is no prejudice to the FFU if the issues it seeks to raise in relation to certification are addressed at a later point by section 99.

PN190

If the Act and the legislature intended the FSU to have a say at this point in relation to these issues before the Commission as currently constituted the strictures of section 43(2) could have been released but that is not the intention. The relief sought by the union we now hear today is some form of order under 135(2)(a). Your Honour will note that that relates to an issue where the Commission is required to be satisfied as to a valid majority in respect of part VIB. The actual issue that arises there is who, if any, entity other than the Commission on its motion is competent to make application for such a matter.

PN191

Would it be intended that an entity without a right to even appear in the context of part VIB could come to this Commission under section 99 and say look, to be satisfied in that proceeding in this proceeding section 99 exercise your powers under 135(2)(a). It in our respectful submission, your Honour, goes completely against the grain of the Act and, as I say, would create an easy device which would be readily utilised from this point on and in our respectful submission inappropriately. Your Honour, the FSU obviously was on notice for some time as to the electronic ballot. It did raise before your Honour a number of issues which it now repeats in this relisting.

PN192

Your Honour will recall that the FSU elected not to press for recommendations on the earlier occasion when invited indeed by the company to raise all and any concerns they had with the ballot process. I don't go into the detail of that because it did occur in private conference but that's where the matter ended up on the last occasion on these ballot issues and that is also relevant we would say, your Honour, to a union now saying look, hear us first on these same issues that we raised before and by our own election asked you, your Honour, in the lead-up to the ballot not to deal with it further, not to go to recommendations.

PN193

The executive of the union apparently made some form of resolution to withdraw and lived to fight another day. They now turn on the doorstep on certification proceedings and say now hear it at the time which can perhaps greatest delay the LK proceedings. Notwithstanding that members concerned have a concern they may well seek themselves to intervene in those LK proceedings. In our respectful submission, your Honour, it's just inappropriate and the Commission for the reasons we've outlined should not enter into that process at this stage.

PN194

Your Honour, at point 3 I've noted issues going to jurisdiction and power. The Commission might recall that probably as part of self protection has discharged from its mind the submissions be made on the last occasion going to jurisdiction and power. Your Honour, we've made a number of contentions by way of summary and we don't seek to take the matter further today unless your Honour requires us to but to the effect that the issues going to the role of the union in a ballot process, a scrutineer, to issues of union e-mail access to the role of workplace representatives arguably are not matters properly able to constitute an industrial dispute as defined under the Act. They relate to matters between the union and the employer in large part and not pertaining to a relationship between employers and employees as such.

PN195

We raised an issue as to the ability of the union to secure relief in terms of the number of code arguments. We note the contention at point 3.1.2 that part VIB is a code at least in relation to union roles concerning LK agreements and that we say is quite specific. I refer to the Geelong Refinery Case again there. Over the page briefly at 3.1.3 we note that division 11A of part IX has been found to constitute a code concerning union rights under the Act and we refer there to 285G, 127AA and the Moranbah North Coal Decision. We also on the last occasion, your Honour, handed up the union's own initiation of bargaining period which specifically addressed in general terms union rights.

PN196

That bargaining period is still on foot. The union's desire as I understand it is that the company will fall out of this attempt to get a direct LK agreement and come back to the bargaining table with the union. We would say 170N still continues to preclude arbitration in the context of a section 99 dispute. At 3.3 we contend again in summary form that the matters raised clearly enough are allowable award matters that could be addressed properly in a section 99 dispute and overall we say there are a number of code issues. We did on the last occasion put on by way of correspondence to the Commission and the union a 111(1)(g) application. We say that that application is still pertinent, your Honour, basically because there are so many reasons why what the union is asserting should not be addressed in this context.

PN197

Those reasons are merely compounded by this attempt to use a section 99 dispute to influence findings as to those matters of which the Commission should properly be satisfied in the LK proceedings. So, your Honour, without going into detail in any of those matters, we're merely flagging them, we're certainly happy if there is any timetable sought in this matter to elaborate on those concerns. We say given all that, given the lack of power, jurisdiction, the inappropriateness in any event of proceeding this matter in the manner outlined by the union the appropriate course is to adjourn these proceedings, to bring on the LK proceedings, to have the union clarify its role, if any. If it has no role then we say even more strongly these proceedings should not go ahead at this stage.

PN198

Let's hear the concerns of whatever unions or employees might seek to intervene in those LK proceedings and have the Commission properly determine those matters of which it must be satisfied in their proper context. If the union then has any residual concerns that it seeks to raise under section 99 so be it but in our respectful submission it cannot point to significant prejudice. It is not an appropriate entity to press for the relief that it specified and there are many problems that should convince the Commission in our respectful submission not to go down this path. So that's the procedural, I guess, course that we would respectfully recommend to the Commission and we'd seek the Commission's assistance in calling on the LK matter and pursuing the course that we've outlined if the Commission pleases.

PN199

THE SENIOR DEPUTY PRESIDENT: Very well. Mr Penning, in light of what's been put to me just now could be comprehended by the section 111(1)(g) application you might bear that in mind in your response.

PN200

MR PENNING: Your Honour, the first point I make is that the substantive submission that Mr Harmer makes which is that the section 99 dispute notification proceeding be adjourned and in some respects either not proceed or be dealt with at a later time and that there would be no prejudice to the union and the employees involved is in our submission central to this matter. If what we say are very substantive matters which we've raised in outline this morning and which were indicated in the evidence in this matter is not able to be dealt with by the Commission and put before the Commission in some respect, we say the appropriate vehicle is through the section 99 notification, prior to an application for the certification of the Commission, then effectively there is a very significant denial of any form of procedural fairness and in our submission there would be a situation where the Commission was not fully informed as to all matters that is required by the Act to be informed about.

PN201

So the concept which your Honour raises of the horse having bolted is entirely right. It is in any form of programming sense simply impractical and entirely defeats the application to raise these major matters if the section 99 application is simply adjourned and if there is no capacity to raise the issues that are sought to be put before the Commission.

PN202

Your Honour, is there any prejudice in this matter to the company or is there any disadvantage to the employees potentially affected by certification of the approach which we propose, well, we say there's not. This is not a matter where there is any enormous pressing urgency. Nevertheless, we certainly don't, in bringing these matters to the Commission, don't seek to delay it, but this is not a case of there being any immediate wage increase being effected by the hearing of this matter. It's not a case of there being pending redundancies, as we understand it. It's not a case of there being a major organisational restructure and if the matter doesn't proceed at pace, that there will be a cost to the company or companies.

PN203

None of that appears to apply here and there's certainly no evidence of that occurring. The effect of certifying this agreement is that in due course GIO Australia employees can be offered employment with the new employer, Suncorp Metway Staff Pty Limited, but there is not even necessarily a requirement that that occur. There's a discretion as to whether that offer is made. There is no immediate and pressing time frame that requires that the Commission bypass any steps or urgently circumvent any review of matters that it might, in the exercise of its discretion, consider it appropriate to review.

PN204

The case that the Commission has been taken to by Mr Harmer in respect of amicus curiae, on our submission, your Honour, don't apply here. This is not an application - - -

PN205

THE SENIOR DEPUTY PRESIDENT: You're not seeking that?

PN206

MR PENNING: No, we're not seeking amicus.

PN207

THE SENIOR DEPUTY PRESIDENT: Well, in this application, you don't have to or this notification, I should perhaps say, you don't have to.

PN208

MR PENNING: No. The jurisdictional issues, your Honour, I don't apprehend that Mr Harmer has raised jurisdictional issue as to the Commission's power pursuant to 135(2)(a). Your Honour, I'm at perhaps somewhat of a disadvantage. I don't have the section 111(1)(g) application by the company in front of me at present. If the Commission is of a view that that has impact here and there are further matters that I'd need to address, I might need to require or request further time briefly to deal with that. But generally, in relation to the matter - - -

PN209

THE SENIOR DEPUTY PRESIDENT: I do regard it as before me and if you wanted time to consider it, you'd be given it.

PN210

MR PENNING: Generally in relation to the matters that are raised being trivial, well, we say that clearly cannot be the case. This is a major agreement. It has implications or an impact for, as we understand it, approximately 1800 employees. The matters which we raise as to the events which occurred in the ballot process and the period immediately before the ballot process are matters of great significance.

PN211

In a general public policy sense there would be no means whereby the Parliament would have been said to have been intending that the Commission was completely precluded from informing itself of and making an assessment of things that were done in the lead up to a ballot process and therefore those matters that we raise as to cutting off email access, preventing meetings occurring, representations which, we say, are misleading or have a certain effect on employees being made by senior company management and HR employees, are properly matters that the Commission would take into account.

PN212

They in no sense would be regarded as trivial matters. Your Honour, Mr Harmer appears to make a submission that this matter was before the Commission previously and that the circumstances whereby the FSU did not push or press for recommendations in relation to a ballot process in some respect curtails or prevents the application now being pressed. We would say, in a logical sense, that simply can't be right because there are circumstances which at the time of making its decision or considering the matters that it did at the relevant time, were not known to it. So many of the matters in relation to the election process because it being done through this electronic form were quite new and not previously known.

PN213

The major concerns, for example, in relation to the lack of capacity to properly scrutineer don't become clear until the ballot process itself is actually under way till the week of the ballot. So there is not an ability, in effect, to deal with those matters at an earlier point in time. Now, I'm just asked to perhaps re-emphasise a point, your Honour, that in terms of the previous proceedings that we were before the Commission as currently constituted, there were undertakings by Suncorp in relation to the scrutineering process. On the submission that we make, those undertakings, certainly as they were understood by the relevant union officials who were present, were not complied with.

PN214

They were not complied with certainly in substance and we say were not complied with in form either. I don't seek to go to evidence necessarily because, and this is a reply to the matters raised by Mr Harmer, but there were undertakings given in writing by the relevant employers in relation to the scrutineering process which our evidence will show or will seek to show were not complied with. That matter itself again doesn't and can't come up, can't have come up in full at the time that the matter was last before the Commission.

PN215

I am asked to raise one further point and perhaps this is in some respects a timetable in issue but again a consideration as to the way in which the Commission proceeds. This has been a relatively tight and compact period. The FSU was not able to organise any meetings with its employee members in GIO until the 9 January despite there being earlier requests to be able to facilitate meetings with employees in the company. Possibly that is understandable in that there were some difficulties over the Christmas/New Year period but nevertheless the union had been in a position to seek consultation and meetings with its employee members at an earlier point in the time. The company did not facilitate that occurring.

PN216

Your Honour, Mr Harmer does raise further jurisdictional issues. I am not in a position at this point in time, not having seen this document beforehand and perhaps considered some of the cases, to be of any further assistance or make any further submissions to the Commission on those matters.

PN217

THE SENIOR DEPUTY PRESIDENT: All right. Yes, Mr Harmer?

PN218

MR HARMER: Your Honour, I will just be very brief in response to what I understood was in reply.

PN219

THE SENIOR DEPUTY PRESIDENT: Just before you do, I remind you that I told you Mr Penning that s.111(1)(g) was in my mind as a vehicle for consideration of the issues that have been raised this morning. You indicated that if I were on that mind you might require some time to consider whether you had put everything you wished to. Do you wish to take advantage of that offer?

PN220

MR PENNING: What time period were you considering, your Honour?

PN221

THE SENIOR DEPUTY PRESIDENT: It's for me to dispose, for you to ask. A quarter of an hour.

PN222

MR PENNING: Yes, your Honour, I would respectively.

PN223

THE SENIOR DEPUTY PRESIDENT: I will adjourn for a quarter of an hour.

SHORT ADJOURNMENT [11.21am]

RESUMES [11.29am]

PN224

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Penning?

PN225

MR PENNING: Your Honour, thank you for that short adjournment. If I may deal with it in this manner simply by asking the Commission to go to s.111(1)(g) and I would make a brief submission in respect of each of the subsections of that section of the Act. So, if we envisage what is being sought by the respondents is that the application either be dismissed in whole or in part or what would appear to be more pertinent to Mr Harmer's application is that the Commission refrain from a further hearing or delay further hearing the termination of the industrial dispute. There are limited grounds upon which the Commission would accede to that application and those are in respect as follows. "One, the industrial dispute or part is trivial". I have dealt with that.

PN226

THE SENIOR DEPUTY PRESIDENT: You have already made submissions on that and indeed I think it is conceded by Mr Harmer that it is not trivial.

PN227

MR PENNING: It couldn't be. Not something affecting 1800 employees, not something which, if nothing else, deals with a major employer and in many respects raises quite significant issues about the methods for undertaking a ballot or a certified agreement. So that question of electronic voting and telephone voting and scrutineering processes and a ballot which is conducted by a privately owned company using those processes to the extent that that may well have considerable capacity to spread to other work places, for example that of itself constitutes a matter and a general issue which is not trivial and in which it is appropriate for the Commission to be appraised of and to have regard to in its assessment of this matter.

PN228

Secondly, that the industrial dispute or part has been or is being dealt with - was proper to be dealt with by a state industrial authority. Well, clearly that is not the case. There is no submission by Mr Harmer that that can be or ought be the case. "That further proceedings are not necessary or desirable in the public interest". Well, on my submission, your Honour, that case or that issue if it is pressed by Mr Harmer is not supported by any evidence. It is certainly not supported by any evidence that is before the Commission. It is not supported either by any detailed submission. I would simply say in relation to that that the same submissions that apply in relation to the industrial dispute not being trivial apply with equal force in relation to the public interest test.

PN229

In respect of just the election issue itself I make the point that what is being dealt with here is a very new technology and a new methodology for voting. So, on that issue alone we submit that public interest would not warrant a dismissal of the dispute notification and the dispute proceedings nor would it warrant the Commission refraining from proceeding with the dispute notification in the manner proposed by us.

PN230

Sub paragraph 4:

PN231

That a party to the industrial dispute is engaged in conduct that in the Commission's opinion is hindering the settlement of the industrial dispute or another industrial dispute.

PN232

Again, your Honour, there is no evidence before the Commission nor as we apprehend it is there any submission by Mr Harmer that that is the case. There is no conduct which is being engaged in by the union which in any respect is hindering any settlement of the industrial dispute. Quite to the contrary the union is behaving in an entirely proper manner in the way in which it is progressing the industrial dispute.

PN233

I might divert at that point and refer to Mr Harmer's outline of submissions. At paragraphs 4.4, 4.5 and 4.6 on page 3 of those submissions, your Honour, Mr Harmer appears to make submissions generally that relate to subparagraph IV of 111(1)(g). So, you will see your Honour that Mr Harmer says:

PN234

The issues are not genuinely progressed by the FSU for a legitimate reason.

PN235

Well, we say very clearly they are. There is no basis whatsoever for that submission being made. The submissions, I trust, even on the short outline I have provided this morning, your Honour, will be seen to raise issues which are of genuine concern and they will be progressed if our approach were seen as proper by the Commission, through the normal channels and that would be hearing of evidence in consideration of the matters.

PN236

4.5 suggests that "the FSU has engaged in misleading and deceptive conduct in relation to the matters the subject of the application of the dispute". Again, our submission is that there is absolutely no basis whatsoever for that submission and there is no evidence to support it and despite being in the outline of application I don't believe that Mr Harmer made any points by way of oral submission that support that. In some respects to the contrary our evidence in certain matters will relate to statements and things being said by senior company management and by human resources officers which did have an effect on employees. It is a matter for assessment as to whether that effect might be seen as being misleading and deceptive.

PN237

and 4.6 of Mr Harmer's outline, the issues raised are already dealt with by an industrial agreement for the Act or in my submission, again, that matter is without any evidential foundation and doesn't appear to have been supplemented by any oral submission. These issues that are before the Commission now in this dispute notification, on our submission, are not capable of being dealt with by any other award application or industrial agreement application, for example, an enforcement proceeding or some other relevant type of application.

PN238

Returning to the sections of the Act, paragraph (v):

PN239

If the parties to the industrial dispute have breached an award or order or a certification agreement...

PN240

No, it hasn't, the union hasn't:

PN241

...has contravened a direction or recommendation of the Commission to stop industrial action.

PN242

No, it hasn't and (c):

PN243

Has contravened a recommendation of the Commission under 111AA.

PN244

Well, to my knowledge, your Honour, coming into this matter late that is certainly not the case. Then if I could ask the Commission have regard to section 111(1AA) in that:

PN245

The Commission must not in relation to industrial dispute dismiss or refrain...

PN246

And refrain being the operative term here, as mentioned in paragraph 1(g) because of subparagraph 1(g)(i) (ii) or (iii), that is the triviality and public interest test:

PN247

...unless it has made a determination and finding under section 101 in relation to the dispute.

PN248

Well, section 101(1) requires that:

PN249

The Commission if it considers that the alleged industrial dispute is an industrial dispute determine the parties to the industrial dispute.

PN250

Well, that has been determined:

PN251

And then record its finding but the Commission may, of course, may vary or revoke any of the findings.

PN252

To the extent that Mr Harmer would therefore rely on the triviality or public interest grounds to say that the Commission ought to refrain from hearing the application, then on our submission, the Commission would not do that because it has not recorded its findings pursuant to section 101 of the Act. Your Honour, in a general sense, we ask that the Commission also take account of general provisions of the Act in relation to section 99 but in relation section 98, I'm sorry, that the Commission perform its functions as quickly as practicable and 98(a):

PN253

In that it perform the function without unnecessary technicalities and in a way that facilitates the fair and practical conduct of any proceedings under the Act.

PN254

In respect of that final point of fair and practical conduct of the proceedings under the Act, your Honour, without labouring the point, I perhaps reiterate that fundamental submission which we make which is that if the Commission were to accede to Mr Harmer's request and refrain from hearing this application and then in some way deal with it at a later point after certification of the agreement, then the result that occurs, on our submission, is completely removed form any concept of a fair and practical outcome.

PN255

THE SENIOR DEPUTY PRESIDENT: Very well, thank you, Mr Penning.

PN256

MR HARMER: If the Commission pleases, a number of points in reply; the first one relates to section 111(1)(g) application and I must acknowledge prior to the Commission extending some protection to Mr Penning and his client in terms of additional time, I was going to myself indicate that the company hadn't necessarily finished with 111(1)(g) and flagged 111(1AA). What we say, your Honour, is this, is that whilst 111(1(g) is certainly attractive in the circumstances and we certainly would intend to press it in appropriate point. What we say is that if one looks at section 111(1) of the Act we are asking the Commission to adjourn, not to refrain from hearing at all in terms of 111(1)(g), not to dismiss the matter, not to refrain from determining the matter which is all the language of 111(1)(g) at this point.

PN257

We'll press that application if needs be, your Honour but what we have put to the Commission this morning is the procedural issue of adjourn this matter pending another matter being heard and then deal with it if necessary, later. That falls within the scope of 111(1)(n) of the Act power to adjourn to any time and place and 111(1)(t) being the power to give orders, directions and do all such things as are necessary for the expedient and just hearing and determination of the dispute.

PN258

Also, obviously, your Honour, I'd also take the Commission to 110 subsection (2) paragraph (a) whereby:

PN259

In the hearing of any dispute the procedure of the Commission is subject to the Act in the rules within the discretion of the Commission.

PN260

So there is both discretion and the power for the Commission to manage these two matters in a manner which has the section 99 dispute to follow the LK to avoid prejudice to LK proceedings. If you look at it, your Honour, the two parties are doing no more than seeking reciprocal, if you like, treatment, that is, the union in its latter re-listing said, deal with ours first then the LK. We are saying, look, the opposite course follows. That is a procedural issue which the Commission can and should deal with under 111 and pursuant to 110(2) without the necessity to formally make a ruling under 111(1)(g) dismissing or refraining from further hearing the matter.

PN261

The second point that I would make, your Honour, is that Mr Penning has noted the jurisdictional issues be raised and I haven't gone to them in detail, I acknowledge that but as indicated, that we haven't raised an issue with 135(2)(a). Obviously that only came up this morning as the course the union seeks out of this matter. I would certainly put the union on notice that we do have concerns, not only with the ability to raise that matter in the context of these proceedings but with jurisdictional issues relating to the nature of that functional power and in context of the other jurisdictional problems that I've raised.

PN262

Your Honour, the third point I'd make is that Mr Penning submitted that there would be a denial of procedural fairness if the substantive matters outlined by the union were to be progressed in the section 99 proceeding prior to the LK matter. First of all, we are obviously not contending that there be no hearing for the union on those issues, we are just saying that one should go first, the opposite to what the union has said, they'll get a hearing at an appropriate point in time on those issues.

PN263

Secondly, your Honour, the authorities are very clear on this point - - -

PN264

THE SENIOR DEPUTY PRESIDENT: What would be the situation if the agreement was certified in the absence of the union and the 99 subsequently resulted in a finding on which certain was based which is immaterial what it is, that there had not been genuine approval?

PN265

MR HARMER: Your Honour, I'll be perfectly frank, we are really dealing here with the vehicle in which certain issues are going to be traversed. I mean, one way or the other these issues are going to be traversed is my apprehension, now the correct vehicle is if Mr Penning has correctly canvassed his client's position, that the FSU is going to seek leave to intervene and if granted, is going to canvass all of these issues and more no doubt, in the context of certification proceedings.

PN266

Now, if we oppose intervention and the Commission notwithstanding our submission, says, look, these employees has a right to be heard on all these issues, this Commission will deal with these matters in the certification proceedings but that's the correct vehicle. The inappropriate vehicle and an alternative means of addressing exactly the same things and I say this without prejudice to any opposition we might have to intervention but just being frank, as I say, your Honour, is that we go down this path and create a precedent of a union being able to run parallel and get around the intervention process.

PN267

We say apart from issues of jurisdiction and power, your Honour, it's just not the right way to go about it and while it might we acknowledge, subject to your Honour's views on intervention in the LK proceedings, ultimately change the result, it probably won't. It means that the Commission is not being side tracked into an inappropriate vehicle which creates adverse precedents for the Commission and the Act and gives an in for any other union that wants to get its foot in the door on certification proceedings through inappropriate process.

PN268

In answer to that question and any prejudice let us play it out, in our respectful submission, if there is an adverse finding on intervention against the union, that issue may well arise but even then we have something to say about it but our apprehension is, your Honour, again, I say without prejudice to our later submissions on any intervention, that there may be no practical adverse impact but that remains to be seen, your Honour.

PN269

Your Honour, what I would say is that the authorities on this point are clear, there have been a number of cases where unions that had no right to intervene in certification proceedings under LK then turned up on appeal appealing certification and maintained that under 45(1)(g) they are a party aggrieved by jurisdictional issue, etcetera. Again, a number of Full Benches of this Commission had said, look, you cannot be a party aggrieved and denied procedural fairness or natural justice because you are not a party allocated by the Act with a right of intervention and hearing at first instance, so how can you now turn up on appeal?

PN270

Now, the authorities on that are very strong and one of them although again, I wasn't anticipating taking your Honour to these, Tweed Valley is, of course, the leading case, Tweed Valley Fruit Processors before the Federal Court (1996) 65 IR 393. Another case on point is a Full Bench decision of this Commission in DHL International which appears at 73 IR at 356 and certainly, your Honour, I can - - -

PN271

THE SENIOR DEPUTY PRESIDENT: I'm familiar with both those matters.

PN272

MR HARMER: Yes, there is a line that your Honour would no doubt be familiar with and they go to that very point, with respect, your Honour.

PN273

So for the union to say, look, we've been denied natural procedural fairness or natural justice on this point of, gosh, we won't be able to circumvent the certification of the agreement, that begs the question with respect and does not speak under this Act of a denial of anything other than a fulfilment of the Act's intent.

PN274

The next point is the assertion that there would be no prejudice if the certification process is delayed. Now that, for the frank reasons that I went to before, may well be the case if we just end up doing this in another vehicle but if we don't your Honour, as your Honour would be aware, the issue of employees transitioning from GIOA to Suncorp has been on for a significant period of time now.

PN275

It has been delayed in part due to previous proceedings before this Commission, undertakings given, there is an appeal decision still pending on some of the issues that were raise before your Honour. The company does have a serious and genuine desire to achieve a single integrated workforce and obviously that process is hinging in part, at least on the approval of this agreement and if it's significantly delayed that process will be further held up and the company won't be able to achieve an integrated workforce in accordance with its timetable, uncertainty for employees will continue.

PN276

In our respectful submission it is just not appropriate to say against that background as the Commission is familiar with that further delay won't be a prejudice and indeed if one looks at the objects of Part 6B, 170L etcetera, it starts off by talking about the Commission's role to facilitate the making and certification of these agreements consistent with the more general objects of the Act and the Commission has commented at full bench level that there is a disincentive in the Act if you like for further delay and I will try and find that reference but I don't think I need say more in terms of certainly the intent of the Act. Subject to the important issues being properly addressed in the proper proceedings before the Commission is satisfied as to certification is not to hold up these agreements but rather is to get them in place.

PN277

The next point I would briefly reply to is, I acknowledge Mr Penning is not appearing amicus here and doesn't have to. The Commission correctly notes that. All I am saying is that this, taken in total, a section 99 process running parallel with the LK proceedings is another means of getting around that same statutory intent and whilst not a direct precedent the observations made by the Commission via Senior Deputy President Hamilton and in the other cases that I cited in the Geelong Refinery case are pertinent and the statutory intention there referred to is pertinent to the outcome in these proceedings.

PN278

The next point I would make is that the FSU has made some noise this morning about electronic voting being new, not previously known to the parties, scrutineering in that context not known. The commission may recall from the previous stage of these proceedings that the company pointed out and the FSU acknowledged that it, by consent and as a party to the Commonwealth Bank certified agreement, acted as a scrutineer in relation to an electronic ballot conducted by secure vote, exact same vote, nothing's different, the only difference is that there they were a party and they were consenting to the process.

PN279

Here, they want to object to the process and all of a sudden it's something new weird and wonderful and has to be carefully scrutinised. It seems as though, turn up any day of the week depending on which way it suits the union, it might have a different view on this electronic voting issue, with great respect, and I guess we say that is pertinent to discretion on programming this issue. It is just not correct to say that the union is new, that it's unaware of scrutineering in this context, etcetera and, as I say, that was discussed in conference on the last occasion.

PN280

The seventh point I make is that when the matter was adjourned on the last occasion with the union electing not to press the Commission to recommendations which with respect I understood the Commission was canvassing as a strong possibility, if I can put it that way, and which would have assisted the union in relation to some of the concerns it now further raises, there was an opportunity in that context for the union to raise issues, certainly with the nature of electronic voting and there was also liberty to relist granted to both parties when the union decided not to go ahead with what would have been the third day of those proceedings concerning these very issues.

PN281

Now, in that context, your Honour, and those proceedings did cease some time before the vote started, there was ample opportunity for the union to further agitate issues and yet they have waited till the outcome of the vote, find it adverse to them and now, concurrent with certification proceedings, seek to regenerate issues which were canvassed significantly on the last occasion. We don't deny there have been developments in the interim but issues relating to scrutineering and otherwise the union was given an introduction to those issues well before the vote was concludes there was opportunity to come back to this Commission and indeed that issue was even canvassed by the parties and the Commission in terms of this whole process.

PN282

Again, we just say in context of an application by the company to adjourn that that is pertinent. We also say that the Commission may recall that one outcome of those proceedings was that the National Industrial Committee convened by the FSU which was a representative group of workplace representatives, the company had raised issue with why is it going on because it was convened to represent the FSU in relation to an agreement between the company and the FSU.

PN283

That issue was traversed and the company agreed in the context of those proceedings that that committee could keep on meeting to discuss issues that FSU members had with the then LK agreement going forward and indeed those meetings were facilitate by the company. So for the union to say, look, we weren't in a position to continue monitoring or to have some representative meeting of members or I guess a facility through which to pursue our ideas, that again we would dispute solely in the context of this notion of, should it be adjourned given it's come up at this late point.

PN284

The next point relates to 111(1)(g) and we acknowledge and indeed the Commission will see from our letter fo 28 November which formally notified the Commission and the union of the 111(1)(g) application. We noted at that time the formal provisions of 111(1)(aa) which arises - the Commission would be aware from that Citicorp line of cases and, your Honour, if I can put it this way: whilst we consider that there is considerable merit in the 111(1)(g) application which we would seek to press further at an appropriate point, there are a lot of issues going to a dispute finding in this matter, with respect.

PN285

Some of them arise from a decision that the Commission itself made in relation to another matter between these parties relating to the ability to grant effective relief in relation to the issue the subject of dispute and whether that is something that can properly grant an industrial dispute. There are code issues and others that we would seek to traverse. We say, with respect, again procedurally at the moment, rather than hear all these jurisdictional problems that might impact on the dispute finding and then formally hear the 111(1)(g), let's just do it under 111(1) more generally because it is just an adjournment application. It is not saying refrain, don't determine, etcetera as is the power under 111(1)(g).

PN286

Your Honour, in terms of 111(1)(g) in that context, perhaps we won't reply in detail to the issues specifically raised by Mr Penning. If I can just note I don't agree with what's being put but it probably won't serve anyone for the sake of the record if I do go into detail as to what might ground 111(1)(g). Today we are saying just adjourn on the basis we've outlined; we will keep our powder dry on the 111(1)(g) if and when we need to after any jurisdictional hurdles if that's the course ultimately reached.

PN287

In relation to the points made on sections 98 and 98A, I am to deal with the matters quickly and with lack of technicality. In essence, your Honour, that's the course that we say we are endorsing for the Commission. The quickest way to get to the core issues is to list the LK matter, deal with intervention, see what arises. It may well be and again, without prejudice to our position, that all these issues are going to be canvassed in any event in the more appropriate vehicle. If that were the case this matter would take on even less weight in our respectful submission.

PN288

That issue can be dealt with quickly, we don't have to go through the technicality or the jurisdictional problems with this matter nor 111(1)(g) more formally, we just cut to the quick, but the union in our respectful submission on that course will not have a say and properly in accordance with the Act will be sidelines. What it might do as agent for employees is another thing and, again, without pre-empting their position, that's something we may need to address but that in our respectful submission would be the appropriate short term solution and may also be the appropriate long term solution to the very real issues before the Commission. If the Commission pleases.

PN289

MR PENNING: Your Honour, this is perhaps somewhat out of order, but Mr Harmer has had a further short right of response from some matters that were raised by us, so we might, if the Commission is agreeable, just make some further very brief comments.

PN290

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Penning, as long as they can be characterised as matters which we could call new.

PN291

MR PENNING: Yes. Your Honour, Mr Harmer is seeking to characterise his application as one to adjourn these proceedings and he's seeking to distinguish that from the Commission refraining from hearing. On my submission, that distinction is probably too cute. The effect of what he is putting to the Commission would have would be that the Commission not proceed with the application that's before it and that it does refrain from hearing it.

PN292

THE SENIOR DEPUTY PRESIDENT: Am I mistaken, Mr Penning, or have I been involved in a matter where that cute distinction played a long and continuing part and the FSU at the very least was keen to have me find that there was a distinction. I'm thinking of various Commonwealth Bank actions.

PN293

MR PENNING: It may well indeed be the case, yes, your Honour. Nevertheless, in this matter, my submission is that to seek to characterise what is being sought as a request to adjourn, but not to refrain, is not an accurate characterisation of what is actually being sought by Mr Harmer and by the employers. If I could just touch on that Commonwealth Bank matter, your Honour, to the extent that Mr Harmer raises it and it was not one that I previously raised but, of course, one that you would be familiar with, to the extent that it's relevant this company that conducted the electronic ballot in this matter, as I understand it, was also involved in the certified agreement application ballot for the Commonwealth Bank.

PN294

THE SENIOR DEPUTY PRESIDENT: Yes.

PN295

MR PENNING: But of course the major distinction, I probably don't need to make the point again, from this matter to that matter, was that that was a consent agreement effectively.

PN296

THE SENIOR DEPUTY PRESIDENT: It was an LJ or they were LJs.

PN297

MR PENNING: They were LJs and the union and the employer were both supporting the matter, vastly different circumstances to this. To some extent, your Honour, this is a new matter, but I'm asked to raise it, that the matter with the Commonwealth Bank, the FSU had conducted its own polling before the secure vote polling and that was that there was close to 93 to 95 percent support for the ballot and the proposed certified agreement in any event. That was vastly different from what the pre-assessments were in this matter.

PN298

To the extent Mr Harmer has raised an issue about the capacity of the union's industrial committee within GIO to have further meetings before this time, well, that capacity was limited and in fact, as I understand it, there was only one further meeting that was held. That was only one further meeting that was held within work hours. In a timing sense, your Honour, the unions only in very early January received information from the company about the vote and a voting report was provided to the FSU by fax on 3 January. So none of that material, which is in that report, which is questioned in many respects by the union, was capable of being dealt with in any prior Commission proceedings because it occurred significantly after that.

PN299

That was a 20 page report and there were many matters that are raised in that report which are of some detail and which again would not have been capable of being addressed on a previous occasion. I also, if I could, just repeat the submission we made earlier that the union did not know that it could not effectively scrutineer the ballot until 10 December, which was again well after the last proceedings. In a prejudicial sense there is no uncertainty that applies to employees on our submission if the current arrangements continue albeit for a very short period of time of a matter of a week or two. Those employees remain regulated under the terms of the AMP/GIO agreement which applies, so there is no hiatus period or there is no uncertainty that arises for the employees effected by this matter.

PN300

There's been a few analogies this morning, your Honour, but one I am reminded of is that if it's said that the section 99 application and the process proposed by us can be dealt with afterwards, that would effectively be like trying to unscramble an omelette.

PN301

THE SENIOR DEPUTY PRESIDENT: Well that's your contribution to the metaphors.

PN302

MR PENNING: If I could just have a moment? Thank you, your Honour, if the Commission pleases.

PN303

THE SENIOR DEPUTY PRESIDENT: I'll adjourn to consider what I should do in the light of what's been put to me this morning. Looking at the time, it might be sensible to adjourn for a period which includes lunch. So I'll adjourn until a quarter past one.

LUNCHEON ADJOURNMENT [11.59AM]

RESUMES [1.15PM]

PN304

THE SENIOR DEPUTY PRESIDENT: As originally notified this decision concerns an application for adjournment of notification of a dispute by the Finance Sector Union of Australia under section 99 of the Workplace Relations Act 1996. As originally notified, the dispute was described as, and I quote, "for decision of the employer at GIO and Suncorp to conduct an unfair ballot for a non-union agreement proposed for 11 December 2002". The dispute has been before the Commission on a number of occasions to this point by way of conciliation. Today the FSU sought to call evidence and make submissions which went to its claim that there was no genuine approval of an agreement under section 170LK of the Act between Suncorp GIOA and their employees which is before the Commission for certification later today.

PN305

Suncorp GIOA seeks that the Commission use its powers under the Act to adjourn the dispute matter till after the application for certification is dealt with. Before dealing with that, I record that I insisted that Mr Penning, who appears for the FSU, be permitted to make a brief opening to itemise the concerns of the FSU. In the context of the application for an adjournment, they are relevant. In summary they are:

PN306

1. Email access was blocked from 8 November 2002 to the week of the ballot, that is access by the FSU.

PN307

2. The company distributed extensive information to which the FSU had no real opportunity to reply.

PN308

3. The representations by management about effect of a no vote were influential.

PN309

4. Denial of access to Clarence Street for meetings.

PN310

5. The company required all employees to attend information sessions to promote a yes vote.

PN311

6. The Suncorp employees' involvement is disputed.

PN312

7. There were flaws in the scrutineering process, for example, counting took place in New Zealand.

PN313

He saw as the remedy the use of the Commission's powers under section 135(2)(a) of the Act to order a secret ballot. Section 135(2)(a) provides if:

PN314

(a) The Commission is required under part 6B to be satisfied that a valid majority of persons employed at a particular time whose employment is or will be subject to an agreement have genuinely made the agreement or given an approval, and

PN315

(b) The Commission is not so satisfied, then

PN316

(c) The Commission may order that a vote be taken by secret ballot with or without provision for absent voting in accordance with directions given by the Commission that persons employed at the time of the ballot whose employment is or will be subject to the agreement to determine whether they would make the agreement or give the approval.

PN317

The section goes on to matters which are not relevant. These matters outlined in the opening confirm my view that the issue is properly characterised as whether or not there is genuine approval to the agreement. Mr Harmer, appearing for Suncorp GIOA submitted that the Commission should not proceed with the matter before the certification application was dealt with because to do so would be tantamount to getting around the provisions of section 43(2) of the Act.

PN318

Section 43(2) of the Act provides:

PN319

If the matter before the Commission is an application under the division 2 or 3 of part 6B for certification of an agreement, the Commission:

PN320

(a) Must on application grant leave to intervene in the matter between the organisation of employees that was requested to represent a person as mentioned in subsection 170LK(4) in relation to the agreement provided the request was not withdrawn.

PN321

(b) Accept as mentioned in paragraph (a) must not grant leave to intervene in the matter to an organisation of employees other than one that is proposed to be bound by the agreement.

PN322

It is submitted that the FSU does not comply with either (a) or (b) of section 43(2). For present purposes I accept that submission. I am satisfied that this matter should be adjourned to permit the hearing of the application for certification. My reasons are as follows.

PN323

Although the dispute is certainly not trivial it is currently concerned with whether or not genuine approval of the agreement was forthcoming. I accept that the provisions of section 43(2) of the Act are a code dealing with the capacity of the Commission to permit the intervention by organisations on the certification of agreements under part 6B of the Act.

PN324

I adopt with respect the reasoning of Deputy President Hamilton in Maintenance Resource Engineering Pty Limited Shell Geelong Refinery Enterprise Agreement 2002 - 2005, print PR916524 in this regard. The issue of genuine approval is a critical issue in the certification process. It is in fact a jurisdictional fact. The issue is the same in each proceeding. To hear the present dispute to a conclusion when there is an application before the Commission for certification would be to get around section 43(2) of the Act.

PN325

Further, the power to adjourn is procedural. This aspect is the subject of a number of decisions of the Commission as presently constituted. In re Commonwealth Bank of Australia Employees Award 1999, print PR905433, I said amongst other things:

PN326

The ruling to adjourn is merely procedural and taken for the purpose of ordering a fashion in which the parties may proceed in matters where similar issues are raised in different jurisdictions. This to my mind is of sufficient importance to justify any delay occasion which might otherwise not be justifiable under those provisions of the Act referred to by Mr Douglas and which I refer to collectively as the all new speed provisions. Further, an adjournment in the circumstances outlined is not a refusal to hear a matter as is contemplated by section 111(1)(g) of the Act but a postponement of the hearing on grounds deemed sufficient.

PN327

The situation in this case is similar although in the matter referred to the similar issues were in different jurisdictions. Here the matters are both before the Commission and this, to my mind, strengthens the procedural nature of this ruling. In my view, my decision to adjourn the matter is consistent with section 110(2) of the Act.

PN328

Consequently, in so far as matter C2002/5745 concerns the issue of genuine approval or conduct of the ballot, it may concern other issues, I adjourn it to a date to be fixed after the matter AG2002/6818 is dealt with. Subject to this the parties are at liberty to apply.

ADJOURNED INDEFINITELY [1.25pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #H1 OUTLINE OF SUBMISSIONS OF RESPONDENT'S SUBMISSIONS PN159