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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
Tel:(03) 9672-5608 Fax:(03) 9670-8883
TRANSCRIPT OF PROCEEDINGS
O/N 10631
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
COMMISSIONER SMITH
C2003/4204
C2003/4452
C2003/5366
ANZ BANKING GROUP LTD
and
FINANCE SECTOR UNION OF AUSTRALIA -
VICTORIAN AND TASMANIAN BRANCH
Notification pursuant to section 99 of the Act
of a dispute re union inspections of pay sheets
and contracts of employment under section 285B
of the Act
REVOCATION BY COMMISSION
MEMBER OF ENTRY PERMIT
Applications under section 285G of the Act
for revocation by Commission Member of
entry permit re FSU intention to enter ANZ
premises to inspect and copy documents
MELBOURNE
9.46 AM, MONDAY, 13 OCTOBER 2003
Continued from 25.9.03
PN1570
THE COMMISSIONER: I apologise, I was happily in a meeting discussing the High Court exhibition and the archives and my associate reminds me it wasn't 10 o'clock. So now, Mr Tuck.
PN1571
MR TUCK: It was our intention now to call David Berry.
PN1572
THE COMMISSIONER: Thank you.
PN1573
MR MATSON: Commissioner, we were going to object, and we do, on the basis that the respondent in this matter had all of our material well and truly before the last occasion and no notice was given of the intention to call Mr Berry.
PN1574
THE COMMISSIONER: Yes. Very well. What do you say about that, Mr Tuck?
PN1575
MR TUCK: The evidence in relation to Mr Berry came in the day before the hearing. Cath Noye, a witness, gave an affidavit in reply which raised new matters which we hadn't been given notice of and which we would like to respond to in brief terms.
PN1576
THE COMMISSIONER: Well, what do you say about the unions foreshadowing that if this is granted they would wish to recall Ms Noye briefly?
PN1577
MR TUCK: I think it is unnecessary in my submission because, I mean, if Ms Noye wishes to give some further evidence, I mean, she really is their case. She has put on evidence in reply. It has taken us by surprise. We indicated at the time that it wasn't evidence in reply, it was substantive evidence on behalf of the union which we weren't given notice of. And we indicated, having received that evidence, that we may now wish to call further evidence, which is Mr Berry. I don't know what Ms Noye's evidence is going to be. On one view it would be preferable to hear what she is going to say.
PN1578
THE COMMISSIONER: Yes, I was just thinking that very point myself. What further evidence do you want from Ms Noye?
PN1579
MR MATSON: Commissioner, there are - well, obviously if we had have known Mr Berry was going to be making a statement and appearing for cross-examination, then we would have introduced some further material in reply from Ms Noye. There are probably only two issues that arise from Mr Berry's evidence that we would seek to give some brief further evidence from Ms Noye about, so that would not I imagine take more than five minutes of our examination. But clearly it creates a difficulty for us not having seen this evidence when we provided our material in reply.
PN1580
THE COMMISSIONER: Mr Tuck, what would you say if I heard Ms Noye briefly and then allowed you to call Mr Berry after that?
PN1581
MR TUCK: That would be preferable, I think, Commissioner.
PN1582
THE COMMISSIONER: Yes, very well. We will hear Mr - - -
PN1583
PN1584
THE COMMISSIONER: Ms Noye, you remain on your previous oath.
PN1585
MR MATSON: Cath, have you seen the statement of Mr Berry?---I have.
PN1586
Okay. He says in his statement at point 7 that he recalls seeing organisers waiting next to an employee's desk. Is that the way that you organise?---No. No, it isn't. There would be probably sometimes 70, 80 people on a floor. We would usually have an hour, an hour and a half, to talk to 80 people. So just on that, we would have maybe no more than two minutes per person, three minutes a person, we wouldn't have the time to be sitting - standing around waiting for people to finish calls. We are very practised at moving through the cubicles. There might be a group in - the cubicles are usually arranged in some sort of square, maybe 10 to a cubicle, we would just move around. People aren't finishing calls at the same time and we wait until somebody is nearly finished a call, go and speak to them then, and move on, come back later if somebody is talking.
PN1587
So with whom did you make arrangements to walk the floor at 530?---As I said in my earlier statement, I made the initial arrangements with Mr Lee Holden and Mr Lee Holden expressly asked me to make arrangements individually with the local line managers, of which David Berry was one of those line managers. I made arrangements specifically with Mr Berry, in particular on at least three occasions.
PN1588
And did Mr Berry express any concerns to you ever?---No, in fact Mr Berry was very happy with the arrangements and if there was ever an issue that I picked up on the floor, I would come and speak to him about it afterwards.
PN1589
And when, to your knowledge, did ANZ change their attitude to the FSU walking the floor?---I think it was around September 2001. That complaint was not made to me, it was about 4.52, but to my knowledge there was never ever any complaints before that time.
PN1590
Okay. I have no further questions, Commissioner.
**** CATHERINE NOYE FXN MR MATSON
PN1591
PN1592
MR TUCK: Ms Noye, you say that your method of organisation is to try and contact people, 100 people, a couple of minutes per person. Do you recall giving an answer last time we were here when you say you:
PN1593
...walk from cubicle to cubicle and stay a good distance away because I don't want to disturb customers' calls. I wait until the phone call is finished, I ask the employee would they like to speak to me. I am from the union and if they would like to speak to me and remove from desk so that we are not disturbing the people around them.
PN1594
Do you recall giving that answer?---Yes, I do.
PN1595
So it is not inconsistent, is it, that what you do is you wait in the area where the person is on the call until they are finished the call?---No, that is not what I do. What I do is I am very practised at - you can usually tell when a customer - when a staff member is finishing up the call just by, you know the length of time - - -
PN1596
Listening?--- - - - no, the length of time they are on the call, and then you can usually hear them say, "Okay, thank you very much," or something and then you move to them.
PN1597
How do you know how long they have been on the call?---Just from the number of times the people are around - there is 10 people in a cubicle, they start different calls at different times, I am just - you just do it, that is how I organise.
PN1598
So you are watching - are you watching them take the call?---No, I am waiting to see who is finishing or who is finishing calls so I can go and speak to that person. My purpose is to speak to the person.
**** CATHERINE NOYE FXXN MR TUCK
PN1599
And when you say in your answer you wait until they are nearly finished. Is that because you are listening to the call?---No, I am not listening to the call and I think I said in my statement I don't listen to the calls.
PN1600
I am asking you now, are you saying you can tell that they are finishing a call. Does that mean you are listening to what they are saying?---Well, generally when somebody is saying, "Thank you very much. Is there anything else I can do," you know they are finishing.
PN1601
So you hear, "Thank you very much."?---Yes.
PN1602
And you say that no concerns were ever raised with you by Mr Berry. Do you recall Mr Berry indicating that he no longer wished people to walk the floor because it was disturbing employees?---Mr Berry never made any comments like that to me at all and in fact I personally made arrangements to walk the floor with Mr Berry on two or three occasions.
PN1603
Do you recall making other arrangements with Mr Berry where you were not given access to the floor?---No, I have never made arrangements with Mr Berry where I was never ever given access to the floor.
PN1604
In 2002?---I wasn't organising in that site in 2002.
PN1605
So you are saying you have never had a situation in your memory where Mr Berry said to you - - -?---No.
PN1606
- - - Ms Noye, it causes disruption on the floor - - -?---No, in fact - - -
PN1607
- - - just answer my question please, Ms Noye, where I wish you to go to a meeting room instead?---No, Mr Berry has never made that request of me.
**** CATHERINE NOYE FXXN MR TUCK
PN1608
Thank you. No further questions.
PN1609
THE COMMISSIONER: Thank you.
PN1610
MR MATSON: No further questions, Commissioner.
PN1611
PN1612
THE COMMISSIONER: Yes, you can call Mr Berry now.
PN1613
PN1614
THE COMMISSIONER: Excuse me. There will be no speaking whilst the oath is being administered. Start again please. Please sit down, Mr Berry.
PN1615
MR TUCK: Your name is David Berry?---That is correct.
PN1616
And you are employed at 530 Collins Street by the ANZ?---Yes.
PN1617
And you are a senior manager in Mortgages Collections?---That is correct, yes.
PN1618
Mr Berry, have you prepared a statement for these proceedings?---I have.
PN1619
Can I ask you to - thanks. Mr Berry, is that the statement that you have prepared for these proceedings?---Yes, it is.
PN1620
Is that statement true and correct?---It is.
PN1621
PN1622
PN1623
MR MATSON: Mr Berry, can I take you to paragraph 5 of your statement, and it says that you were aware that:
**** DAVID EDWIN BERRY XXN MR MATSON
PN1624
Mr Holden had met with the FSU but not aware that Mr Holden had entered into an arrangement with any representative of the FSU to walk the floor in mortgages, however to the best of my recollection I did observe representatives of the FSU walking the floor.
PN1625
That kind of gives the impression, doesn't it, that you didn't have any role in making those arrangements. Would that be right?---Sorry?
PN1626
Well, did you have any active role in making arrangements with the FSU to walk the floor at 530 in say 1999 or 2000?---Yes, I did.
PN1627
And so you would have spoken to Ms Noye on a number of occasions?---Yes, I did.
PN1628
Okay. And, in fact, on one occasion I think you contacted Ms Noye to make an arrangement of your own volition. Is that right?---I can't recall that.
PN1629
Okay. So the arrangements that you made with Ms Noye between 1999 to 2001 included several times of walking the floor. Is that right?---Yes.
PN1630
Okay. Can I take you to paragraph 9 of your statement, and you talk about becoming responsible for access. Roughly when in 2001 was that?---I can't recall the exact month.
PN1631
Can you recall roughly when it was?---No.
PN1632
At early 2001?---No. No, I couldn't recall the month, sorry.
PN1633
Okay. Can you recall who gave you the responsibility, how it came about?---I have always had the responsibility. I don't know why you would say it wouldn't.
**** DAVID EDWIN BERRY XXN MR MATSON
PN1634
Right. So prior to 2001 you had that responsibility?---Yes, I did.
PN1635
Okay. Can you explain to me then why it says that you became responsible in 2001?---I became responsible for level 26, yes.
PN1636
Okay, as opposed to some - as opposed to other areas?---That is correct.
PN1637
Okay. So how did it come about that you became responsible for level 26?---Part of my department moved to that floor.
PN1638
I see, okay. Can I take you then to paragraph 6 of your statement, and you say in the first sentence there that walking the floor was disruptive. Did you ever raise that with Ms Noye in say before 2001?---Before 2001, I don't recall doing it, but I don't believe I did.
PN1639
Okay. Can I ask you how many employees you are responsible for?---At the moment it is around about 60.
PN1640
Okay. And how many employees would be absent - out of that 60 would be absent on any given day, say on sick leave or annual leave?---It depends on the time of year but could be anything from two to three.
PN1641
And employees that you are responsible for have breaks to get away from their screens and their headsets and so forth, do they?---Yes, they do.
PN1642
Okay. And they have breaks to go to the toilet and so on?---Yes, they do.
PN1643
Yes. And do you ever have fire drills at 530?---Yes, we do.
**** DAVID EDWIN BERRY XXN MR MATSON
PN1644
Okay. And how long does that take?---A fire drill?
PN1645
Yes?---It can take anywhere from half an hour through to two hours.
PN1646
Okay. And how often does that happen?---I would have to check with the fire warden. It is the last - we would have had one in the last eight months.
PN1647
Okay. Can you recall how many over - well, roughly over the last three years?---No, I couldn't recall the exact number, sorry.
PN1648
It has certainly happened more than once though, hasn't it?---It did, yes.
PN1649
Yes. Now in your statement I think you say you recall walking - Cath walking the floor on approximately three occasions. Is that right?---That is correct.
PN1650
Paragraph 5, okay. So when you know things are going to be busy or you are going to be short staffed, do you call in extras? Do you call in extra employees?---It depends on the reason of why we are going to be short staffed.
PN1651
So if there is a - what would some of the reasons be then that you might be short staffed?---If we know we have got a lot of people scheduled off for annual leave.
PN1652
Okay. And so when that happens you call in labour hire employees, do you, or temporary employees?---We have part time staff who we ask if they are interested in serving full time for a short period of time.
PN1653
Okay. And do you always get enough of them?---Yes, it doesn't happen very often so, when it does, yes.
**** DAVID EDWIN BERRY XXN MR MATSON
PN1654
Right. So you have no need to call in Hallis or Adecco employees, you don't use them?---No, we don't use them.
PN1655
In your - in the area that you are responsible for?---In the area I am responsible for.
PN1656
Okay. Commissioner, I have no further questions.
PN1657
PN1658
MR TUCK: Can I just ask you, you gave - you were asked questions about Ms Noye and your relationship with her and allowing walking the floor, have you ever had a situation where you have not allowed Ms Noye access to walk the floor?---Yes.
PN1659
And do you recall when that occurred?---I can't recall the exact date but it was earlier this year.
PN1660
And what arrangements did you make in the alternative?---We had her in the lunch room where we allowed all staff - we gave them forewarning that they could - well, we let them know when the union was going to be there, and we had the union rep also speaking with staff and letting them know that they could go out, and we coordinated a response so that not everyone was leaving at once.
PN1661
No further questions, Commissioner.
PN1662
PN1663
MR TUCK: That is the close of the evidence on behalf of the bank, Commissioner.
PN1664
THE COMMISSIONER: Thank you. Any further evidence to be put in?
PN1665
MR MATSON: No, Commissioner, we have no further evidence.
PN1666
THE COMMISSIONER: All right. Mr Tuck - who is the applicant here?
PN1667
MR MATSON: I think, technically, Commissioner, we are. It has bounced backwards and forwards.
PN1668
THE COMMISSIONER: I am sorry. I apologise.
PN1669
MR MATSON: And in some respects it may have been easier for the Commission to proceed if the respondent had have been the applicant however. Commissioner, for the convenience of the Commission, I have prepared a folder which contains the relevant authorities and legislation to which we will seek to take you, along with a collation of the correspondence on the file.
PN1670
THE COMMISSIONER: Thank you.
PN1671
MR MATSON: To avoid the kind of confusion that we had on the last occasion.
PN1672
PN1673
MR MATSON: Thank you, Commissioner. Commissioner, if I could take you first to the operation of the relevant sections of the Act, particularly 285B and G. The union says that these are matters of considerable importance.
PN1674
THE COMMISSIONER: But before you go on, there was a decision handed down on Thursday. Are you aware of that?
PN1675
MR MATSON: Yes, Commissioner, I think you will find it at tab 9 of the FSU4.
PN1676
THE COMMISSIONER: Tab 9, I see. Good, thank you.
PN1677
MR MATSON: Commissioner, this matter underlies what the union says is a strategy essentially to try and keep the union out of what ANZ considers to be its business. And I think it has been established that the ANZ withdrew from EBA negotiations and made statements to employees as were contained in the Powerpoint presentation which were the subject of cross-examination to Ms Reid. And we say that that is some evidence of a strategy to work around the traditional industrial relations agenda and around the legitimate operations of the union.
PN1678
Just as importantly, we say there is no great state infrastructure for the enforcement of awards and agreements of this Commission as there once was. And there is no real capacity for individuals to enforce awards and agreements by virtue of section 347 of the Workplace Relations Act. Its operation preventing the recovery of costs in the court is a significant barrier to enforcement. And on top of that, there is a very limited capacity for the Commission to operate in this arena in the enforcement obviously of awards and agreements, and in fact under this enterprise agreement that we have with ANZ, there is no capacity for arbitration in the dispute settling procedure except by agreement of the parties.
PN1679
And in fact that was one of the matters that was cited by ANZ as a reason for walking away from the EBA negotiations. So for those reasons, section 285B powers are essential and fundamental to upholding the integrity of the Commission's awards and agreements. The Commission is empowered to resolve disputes over the operations of the division and we say that any order coming out of 285G proceedings shouldn't defeat the operation of the Act by being fundamentally at odds with the powers conferred therein. The protocol proposed by ANZ effectively defeats the powers conferred by 285B by rendering them, we say, inoperable.
PN1680
It can't sensibly be argued that an official waiting in a back room for employees to elect to visit is exercising a right or power to interview employees. If employees don't opt to submit to interview then the permit holder's power of interview is defeated, we say. If one person that the permit holder wishes to interview doesn't opt to attend, then the permit holder can't interview him or her and the power under 285B in respect of that employee is rendered nugatory. And in that respect, the section is very different to section 285C, the holding of discussions, and I will come back to that.
PN1681
THE COMMISSIONER: You put it as highly as that, do you, that it is not at the election of the interviewee as to whether or not they are interviewed?
PN1682
MR MATSON: I think there is a sort of essence of compulsion about the section and certainly we say that it applies to all employees who are members or eligible to be members of the union. So the defeat of the option to interviewing one of those employees would defeat the operation, we say, of the Act. And whether people are actually compelled to answer questions I think is probably a more difficult question that I don't intend to go to in detail, but I think there is certainly an implication of some compulsion to at least be interviewed.
PN1683
We also say that ANZs position, as repeated several times in their outline of contentions, such as at points 22 and 46 of their contentions, rests on the notion that attendance of a union official at the work station is of a necessity intentional hindrance and obstruction. 285B prescribes the right to inspect work stations and to interview employees and it would be utterly inoperable if hindrance and obstruction was given such a broad interpretation. We agree that approaching an employee at their work station will involve a short interruption to their work, but that doesn't constitute intentional hindrance and obstruction and if it did, the Act would be inoperable due to a direct contradiction between sections 285B and 285E.
PN1684
All of the ANZs submissions as to confidentiality, privacy and in fact health and safety rest on their peculiar interpretation of the Act, which we submit is unsustainable on any reading. The ANZ has in these proceedings raised quite a number of arguments, or we say excuses, as to why it should not cooperate with the union. And they have taken something of a blunderbuss approach on the principle that if you stuff enough pallets into the blunderbuss one of them will hit the target. Upon the initial notification, the ANZ indicated in e-mails, including that dated 17 June 2003, and, Commissioner, these are contained under tab 12 of FSU4, and we are three pages into tab 12, Commissioner, again a matter - an e-mail that was subject of cross-examination that was presented to Ms Reid in cross-examination where it says:
PN1685
We are in the process of compiling relevant documents for your review on Monday the 23rd...
PN1686
In fact, the letter which is contained at the same tab, the page before, the letter of Mr King of 16 June, which indicates amongst other things there at the second paragraph, as you can appreciate this is a substantial request, mortgage operations employees, numerous employees and therefore there are large volumes of relevant documents and so forth indicating that the employer was in the process of preparing those documents. And then on 20 June, the letter also on the file to which the Commission has been taken, the FSU is notified by Ms Reid that the documents wouldn't be provided and cited in that correspondence our enterprise bargaining claim about limiting excessive overtime.
PN1687
Commissioner, I refer you there to the bottom. This correspondence is about seven pages into tab 12 and again the Commission was taken to it, as was Ms Reid in cross-examination, where it cites specifically:
PN1688
ANZ considers that your request is directed to supporting your enterprise bargaining claim for a new clause to limit excessive overtime.
PN1689
So while the earlier correspondence had indicated that a few more days might be necessary to compile the relevant information, the ANZ then turned to rely on the magnitude of the request as a ground in itself why the documents ought to be refused and indicated an intention to argue that this would be a relevant matter in any arbitration over documents pursuant to their notification, that is the original notification in these proceedings. In relation to the notification of intention to exercise the power of interview, ANZ has raised a new set of barriers.
PN1690
Suddenly the improper purpose changed from pursuing an EBA claim to raising the union's profile. And Ms Reid conceded that ANZ had no intention of re-engaging in EBA negotiations and so conceded in cross-examination that that was no longer an improper purpose, as she cited on 20 June. The existing enterprise agreement passed its nominal expiry date in 2001 and the ANZ has twice walked away from negotiations for different reasons on each occasion. As the Commission is well aware, we can't compel the ANZ to negotiate in good faith and they have recently announced to employees that they have withdrawn from negotiations, this is contained at the end of tab 12, Commissioner, and again the Powerpoint presentation to which Ms Reid was taken. It says on the second page, page 2 of 6 of the Powerpoint presentation, that:
PN1691
Following a second unsuccessful attempt to negotiate a new EBA, the ANZ has withdrawn from negotiations.
PN1692
And then further on page 5 of 6, it says:
PN1693
We see little value in continuing to negotiate with the union on a new EBA.
PN1694
So it makes their intention reasonably clear. That Powerpoint presentation is dated 12 August, in fact the only meeting of the parties to negotiate on an enterprise agreement was 28 May. And it is the union's submission that there never was any substance to the claim that the notice of entry was in any way related to the EBA and ANZ were fully aware of that at the time because they had in fact walked away from those negotiations well before entry was sought. At the same time, as I say, we were confronted with a blunderbuss shot of other reasons why our proposal for inspection wasn't acceptable, they included insufficient detail of the breaches to be inspected, the health and safety of employees, contractual confidentiality obligations under the Privacy Act, hindrance and obstruction, and this improper purpose argument.
PN1695
The union submits that the blunderbuss approach is consistent with an industrial decision to attempt to frustrate the union in is work. It is not an approach that is consistent with a genuine concern about any one of the reasons that have been thrown up. All this was played out in a game of ducks and drakes between People Capital and local management where the status of the advice to us as to the protocol, so called protocols, was variously mandatory advice, strong advice, advice which managers though having discretion would not consider going against, and so forth.
PN1696
And in fact we still don't know who has the authority to make the call and ANZ have maintained this ambiguity strenuously throughout these proceedings. If I could turn to the question of the Commission's jurisdiction and particularly this ulterior purpose argument that has been signalled by the employer. The question as to whether the union holds a genuine suspicion is a matter upon which the Commission must form a view in order to properly exercise its powers under 285G. The question is one of fact to be assessed in accordance with the test, we say, in Curran v Borthwick, and that is at tab - that decision, Commissioner, is at tab 1 and I will come back to that in a moment.
PN1697
That possibly needs some variation because of the amendment to section 280 - what was then section 286. I will come back to that in a second also. But essentially the test was whether the intention of the exercise of the power is connected with award observance, and that was a test to be applied objectively. Commissioner, if I could take you to tab 1 to paragraphs 34 and 35. In particular, Commissioner, at paragraph 34, his Honour identifies that the test is an objective one and then at paragraph 35 says:
PN1698
On the basis that an objective purpose was required, a question arose as to the relationship between the article to be inspected ...(reads)... of a particular award by the employer concerned.
PN1699
I end the quote there for the time being but come back to the rest of that paragraph shortly. The only material change in the legislation since that decision is an apparent slight narrowing of the purpose for which powers can be exercised that has gone essentially from general award observance to a suspected breach. The union doesn't concede that that is a significant change generally but, even if it is, the FSU has proceeded and acted only upon suspected breaches, and the draft order that we have provided to the Commission is confined appropriately.
PN1700
Therefore, we say that the test in Curran v Borthwick in the context of this notification can probably be read as something along the lines of whether the intention of the exercise of the power is connected with suspected breaches, assessed objectively. The Act provides powers of inspection and interview and the Commission, in resolving a dispute over the operation of the section, should give effect, we say, to those provisions. In order to deny those powers on the grounds relied upon by ANZ, the onus must rest on them to establish that the purpose of the interviews is not genuine or, specifically in this case, that the proposed interviews are not connected with suspected breaches.
PN1701
In the face of all that is already before the Commission now, including the documentary evidence of breaches, the witness evidence and so forth, it is impossible to see how the ANZ could seriously maintain its argument, let alone discharge the burden of it. We refer to the comments of Gray J just read when considering the relationship between the material to be inspected and the nature of the suspected breach. We say there is more than enough before the Commission to meet that test and there is nothing the employer has adduced that discharges the onus on it to establish that there is some ulterior purpose.
PN1702
Similarly, the ANZ rely on that decision and the decision of Gray J in the Australian Federation of Air Pilots decision, which is at tab 2 of FSU4. Gray J held in that decision that there was no extraneous purpose in that matter. He found that, on the basis of the connection between the information sought and the ensuring of award observance, the purpose was genuine. The records and interviews sought by the FSU are patently essential to determining the existence of and the extent of the occurrence of the breaches we suspect in relation to unpaid overtime, underpaid overtime, unpaid higher duties allowance and unpaid meal money.
PN1703
Going first to the question of higher duties, Mr Smith in his evidence, though very uncertain, thought that the performance of higher duties may be shown on time sheets and I refer the Commission there to transcript at paragraphs number 1447 to 1455. Having gone through the sample provided in some detail, I can assure the Commission that time and wages records don't record whether higher duties are being performed except where the allowance has actually been paid, in which case it appears on the wage records but not the time sheet. There is no record of the time worked in higher duty positions in the cycle.
PN1704
So there is no record of the incidence of higher duties being worked but not paid and I don't expect that the ANZ will contest that particular question of fact and, even if they did, the suspicion is that people are being required to perform duties which, on any reading, should attract the allowance but in failing to pay it, the employer is making no record at all of the duties, let alone on the time sheets or pay sheets.
PN1705
THE COMMISSIONER: I am sorry, I don't understand that. You say that some people might be working higher duties and not being paid?
PN1706
MR MATSON: Absolutely.
PN1707
THE COMMISSIONER: But the ANZ says everybody who is working higher duties is paid.
PN1708
MR MATSON: It is a kind of reflexive argument that the ANZ comes back with, I think. They say yes, everyone who is working higher duties is being paid and because they are being paid, it is therefore shown on their pay sheet. The difficulty that we have with that is that there is no way of identifying how many days in a four-week cycle somebody is working the higher duties because it is not shown on their time sheet or their pay sheet unless - well, in fact, it is not shown. The number of days are not shown. So the only way of establishing - - -
PN1709
THE COMMISSIONER: Just an amount is shown.
PN1710
MR MATSON: If they are receiving the allowance. So there could be two categories of people that - well, there will be a category of people who we say are working higher duties and in order to establish whether they fit within the payment of allowance or outside it, we need to ask them the question how many days they are working in the higher duty position, because that is not shown anywhere.
PN1711
THE COMMISSIONER: Yes. Thank you.
PN1712
MR MATSON: If I could turn briefly to the question of overtime, similar considerations apply in relation to unpaid overtime and meal allowance, which I will come back to when we address the question of ANZs demand that we provide evidence of the breaches before they allow entry and that was the position stated in Mr King's letter of 8 August and that is contained as an attachment to the witness statement of Ms Reid at KAR6. On the modified Curran v Borthwick test, it has to be clear that the interviews sought are essential to determining whether the breaches suspected exist or not.
PN1713
So, Commissioner, you will recall that Ms Reid conceded in cross-examination that she had no evidence for her assertion that the real motive was other than in relation to suspected breaches. At point 13 of their contentions, ANZ assert that the Commission is entitled to impute a motive for which there is no case or no evidence. This one is directly counter to the test in Curran v Borthwick and, for that matter, the Australian Federation of Air Pilots case. It may be that an incidental side effect of an exercise of the power under 285B is an increased profile but absolutely any activity by any organisation can be said to affect its profile.
PN1714
However, in this case there is indisputable evidence of actual breaches, strong evidence pointing to the existence of the further breaches suspected by the union and a direct relationship between what the union seeks and proof of the existence of those breaches or not. There simply isn't any room, we say, for the imputation that ANZ continues to try to sustain.
PN1715
Commissioner, the decision last Thursday that you referred to, which is contained at tab 9, which is the Victorian Association of Forest Industries Full Bench decision, at page 10 of that print, paragraph 29, the Full Bench refers to a decision in Thompson v The Council of the Municipality of Randwick and it establishes what it calls a substantial purpose test. If I can start the quote where it is underlined at the bottom of page 10 there from that decision of Thompson v Randwick Council:
PN1716
It is well settled that a public body invested with statutory powers such as those conferred upon the corporation must take care not to exceed or abuse its powers. It must keep within the limits of the authority committed to it and must act in good faith and it must act reasonably.
PN1717
Then further down towards the bottom of that quote there is another underlined section commencing, "But in", and it reads:
PN1718
But, in our opinion, it is still an abuse of the council's powers if such a purpose is a substantial purpose in the sense that no attempt would have been made to resume this land if it had not been desired to reduce the cost of the new road by the profit arising from the resale.
PN1719
And that decision was held to be a valid authority for the substantial purpose test. Essentially, what the Full Bench found was if there is a substantial purpose which means that action has been taken which would not otherwise have been taken, then it is not a legitimate exercise of the power, and that is clearly not the case in these circumstances.
PN1720
Just in case the nature of the suspected breaches is still not clear to the employer, we raised the issue of rostered days off and the employer has rightly said that the matter is before the Federal Court in relation to six people and we do not seek any further information at this time as to breaches related to rostered days off and the Commission will recall that we raised this in conciliation and, in fact, put a hold on proceeding with the entry and search of records in relation to the ACC at Dorcas Street. So that was reported to the ANZ and to the Commission in conference.
PN1721
There if underpayment of overtime. We have documentary and verbal evidence of failure to pay an underpayment, payment at the wrong rate and, in fact, the employer in their letter of 27 August conceded that there had been payments at the wrong rate in relation to overtime. Further, underpayment of meal allowance: it is conceded by the bank that they pay it only according to a formula which is not prescribed by the award and we also have verbal advice that even by that formula there are significant instances of underpayment. And underpayment of higher duties allowance: we have verbal evidence that a significant number of people have qualified for payment under clause 18.3 and have not been paid, that is 18.3 of the award.
PN1722
We also say the nature of the suspected breaches weren't questioned by the employer in any of the subsequent discussions or correspondence after they refused to provide the records. The employer indicated a number of times that it was preparing to provide the records and never sought any confirmation of the nature of the breaches. Then ANZ claimed, including in the direct e-mail to employees authored by Tracey May, and again that e-mail is contained under tab 12, that the union was refusing to provide further information.
PN1723
In any event, we have clarified a number of times what the nature of the suspected breaches are, including three times before this Commission in conciliation, and the same matters are set out in John Wilson's witness statement. He wasn't cross-examined on that, despite the fact that he is the permit holder who caused the notice to be issued in the first place and is the person whose suspicions the ANZ challenged. It is impossible to believe that the employer seriously contends an ulterior purpose. It had no questions on the subject of the suspected breaches for the relevant permit holder.
PN1724
Importantly, we have also identified examples from the sample of records and written twice to the ANZ. ANZ concede one group of breaches, that is the underpayment of overtime, and there can be no doubt that the FSU has identified actual breaches from the sample, which confirm the suspicions that we held at the time when the notice of entry was served, or at least some of those suspicions. Given that we have only a small sample of the records, both in terms of the sample of people and the period over which the records - or the period to which the records relate, it is more than reasonable to believe that there will be instances of the same kinds of breaches discoverable in the records we don't yet have. It is partly in order to refine our request for the records that we have sought to exercise the interview powers.
PN1725
Commissioner, if I could turn to the question of rostered days off and meal allowance, the genuine of suspicion is not destroyed because it comes from a different interpretation of an industrial instrument. So that is a matter not only of common sense but if it needs authority, we say it flows directly from the judgment of Gray J in Curran v Borthwick, and if I can take the Commission to the bottom of paragraph 35; this is again at tab 1. Commissioner, it will be recalled that this was an action in relation to hindrance and obstruction so it is not a matter that the court was about to rule on but it reads at the bottom of paragraph 35, the last two sentences:
PN1726
If there arises a question of construction of the award the court should not have to determine this in a proceeding in which the employer is charged with an offence. Such a question should await the determination in a proceeding to enforce the award.
PN1727
If it were the case that a difference over the interpretation of the award and upholding a genuine suspicion over breach of that term were mutually exclusive, then the court would have had to have ruled that no proper purpose existed in that case whereas it found in the union's favour. It is not open to an employer to deny the exercise of powers under 285B by simply claiming that they have another interpretation of the relevant clause. To read the section in such a narrow way would enable employers to evade inspection and prosecution by denying permit holders any evidence that could prove their case.
PN1728
In matters raised in these proceedings the ANZ sought to dictate the manner in which the union prosecuted the dispute over RDOs by refusing to provide time and wages records and providing what they chose to call admissions of fact. And those admissions were contained as an attachment to the statement of Ms Reid at KAR5. By doing so, the ANZ sought to restrict any enforcement action to a section 413 interpretation, and thereby avoid any orders for payment or penalty.
PN1729
THE COMMISSIONER: That wasn't at their initiative, though.
PN1730
MR MATSON: Sorry, Commissioner?
PN1731
THE COMMISSIONER: The provision of those conceded facts wasn't at their initiative.
PN1732
MR MATSON: No, but the refusal to provide the records was at their initiative, and - - -
PN1733
THE COMMISSIONER: No, no, I understand that.
PN1734
MR MATSON: And it made it extremely difficult for the union to prepare its case, which as the employer advises is now before the Federal Court.
PN1735
THE COMMISSIONER: But to the extent that you seek to impute motive behind conduct, the conduct was not at their initiative.
PN1736
MR MATSON: The conduct of the provision of the admissions was not, but the fact is that without the relevant records the union would not have been able to proceed along the course that it has, which is to seek an underpayment - 178. And, Commissioner, that is certainly not a device that we say should be encouraged. The question of meal allowance is, in part, in a similar category. The employer asserts that its refusal to pay the allowance is referable in every case to the giving of at least 24 hours notice, or at least that is what has to be drawn as a conclusion because that is the interpretation that the ANZ give to the meal allowance clause.
PN1737
Whilst Ms Reid was reticent to confirm this, it is set out in the decision of Senior Deputy President Duncan when the matter was brought before him by the union pursuant to section 99. If I could take the Commission to tab 3. On page 2 at paragraph 5 it reads:
PN1738
The ANZ does not pay meal allowance where 24 hours notice to work overtime has been given. The FSU believes that by doing this ANZ has unilaterally altered the award provision. ANZ claims it has not done this, but in any event objects to the Commission hearing the claim.
PN1739
That is precisely what developed in that case. The ANZ challenged jurisdiction of the Commission to resolve the dispute, and the matter lapsed. But the interpretation given by ANZ to that award clause is not provided in the award. The dispute is over the meaning of the term, scheduled hours. ANZ contends that any overtime hours worked for which an employee has had 24 hours notice are scheduled hours. The fact that it holds this opinion does not change the fact that the union suspects that every time this occurs the ANZ is in fact in breach of the award.
PN1740
THE COMMISSIONER: Haven't you there got a clear statement which is easily determined by the court as to who is right and who is wrong? Or, on application to vary the award?
PN1741
MR MATSON: Both of those would be open, Commissioner, yes. But again it comes back to the manner in which the union seeks to proceed.
PN1742
THE COMMISSIONER: Sure.
PN1743
MR MATSON: And, in fact, in the case of meal allowance, there will be those - we say that if the employer's interpretation is accepted by us, there are still matters of unpaid meal allowance, because a number of those people had not actually been given that notice.
PN1744
Now, again, that is a matter that we cannot possibly establish by documentary evidence, or by any other manner, we say, than by interviewing the employees and establishing what notice they are being given. Evidence of Mr Smith in cross-examination was that they offer overtime, but couldn't give us any indication of how far in advance that overtime is offered. So even if the employer's interpretation is accepted, there is still going to be a need for a 178 type proceeding in order to enforce the entitlement.
PN1745
So while on that subject, Commissioner, the advice to the union is that on most occasions that notice is not provided and the allowance still is not paid. So until the union can direct this question to employees, it is hard to determine how widespread the breach is. Our anecdotal information is that it affects many employees, and occurs regularly. But we cannot know that without interviewing employees. It is therefore very strong ground for the exercise of the power to interview. Commissioner, if I could turn to the question of - - -
PN1746
THE COMMISSIONER: But in your view, on that question, prima facie, there is a breach every time the bank acts.
PN1747
MR MATSON: There is a breach every time the bank provides somebody with 2 hours or more overtime, and fails to pay the allowance.
PN1748
THE COMMISSIONER: Well, there is a breach every time it implements its policy that you say is inconsistent with the award.
PN1749
MR MATSON: That would be correct, Commissioner, yes - well, providing that there is at least 2 hours overtime worked.
PN1750
THE COMMISSIONER: Yes.
PN1751
MR MATSON: And that would be consistent with interpretations of other awards, and that is not a - - -
PN1752
THE COMMISSIONER: No, I am not raising that. I am just wondering why you need to interview employees when, on their own case, you say they are in breach, and a trip up to the Federal Court will resolve the matter.
PN1753
MR MATSON: Well, we suspect they are in breach, but we don't know what - you know, we don't know how many hours people are working because we don't have the records.
PN1754
THE COMMISSIONER: No, but you say on the bank's interpretation of the application of the meal money clause, that will, every time they follow their own policy, bring them in breach.
PN1755
MR MATSON: No, I don't know that I am saying that.
PN1756
THE COMMISSIONER: You don't go that far?
PN1757
MR MATSON: No, no. What I am saying is that on the bank's interpretation, if they provided 24 hours notice of requirement to work overtime in excess of 2 hours, then there would be no meal allowance payable if the notice is given. On our interpretation, clearly there would be a breach on every occasion, because our interpretation is that if scheduled hours - well, scheduled hours cannot include overtime, essentially, is the different interpretation.
PN1758
So I guess there are two categories of breach. There are those that would exist regardless of the interpretation of 24 hours being applied to that clause or not, and then those that we would only succeed in an action if our interpretation of the clause is correct.
PN1759
If I could turn then to the question of identifying the breaches and people that has been requested in the correspondence a number of times by the ANZ. The union is not required to identify the people affected by the breaches, the specific details of the clauses, or the other specifics that have been suggested a number of times by ANZ.
PN1760
There have been a number of decisions, including the recent decision of Commissioner Blair which was the subject of the appeal in the matter that we have already referred the Commission to, and that is contained at tab 4 of FSU4. The Commissioner found that it wasn't required by the Act to identify those sorts of matters. He found that it may jeopardise employees' employment, and was an unnecessary curtailment of the rights of the permit holder. If I can take the Commission to the bottom of page 9 of that Print, where it reads:
PN1761
However, in finding that the Commission does have power to issue the orders required by VAFI in this matter, the Commission will not issue the orders sought ...(reads)... For these reasons only the Commission will not issue the orders by the VAFI and will dismiss the application accordingly.
PN1762
The relevant parts of that decision were upheld by the Full Bench when it made its decision in the appeal matter, to which the Commission is referred. It is contained at tab 9, and if I could take the Commission to pages 7 and 8, and particularly to paragraphs 11 to 19. It should be said that the question of jurisdiction was found otherwise, but the conclusions essentially of the Commission at first instance were found to be right. At paragraph 11, the Full Bench says:
PN1763
VAFI relied on the decision of Senior Deputy President O'Callaghan in AMIEU v T and R Murray Bridge. In that case his Honour said ...(reads)... as a prerequisite to an exercise of a power conferred by section 285B.
PN1764
Commissioner, without reading all of the 13 to 19, it confirms the findings made there, and concludes at paragraph 19 that:
PN1765
Under Part IX of Division 11A of the Act as it presently stands there is no obligation on a permit holder seeking to exercise a right of entry ...(reads)... to particularise the breach suspected by the permit holder.
PN1766
Similar concerns were expressed very much earlier in Clough Engineering by Commissioner O'Connor, and that is contained at tab 5. That decision is in fact referred to and followed by the Full Bench. If I could take the Commission to page 14 of that Print of Clough Engineering. There are a number of dot points on the page. Unfortunately the paragraphs are not numbered, but if I could take the Commission to the fourth dot point on page 14. It reads:
PN1767
The union referred the Commission to several cases dealing with the requirement of disclosure prior to entry for the purpose of investigating breaches, namely, the decision of...
PN1768
and then lists the decisions to which the Commission is taken. The following dot point:
PN1769
These decisions all enforce the view that unless the Workplace Relations Act or Award stipulates otherwise, there is no obligation to disclose the nature of the suspicion ...(reads)... and would seriously hinder their ability to investigate breaches.
PN1770
Commissioner, the union is not in a position to identify the individuals or the specific details of the breaches. We don't know who has been acting in higher grade positions in relation to the higher duties allowance. As we say, it is not shown on the time sheets or the wages sheets, even if we had them all, so it is necessary to interview employees to establish who has worked four days in a four-week cycle in a higher position.
[10.46am]
PN1771
We can't know without interview who may be affected by breaches relating to overtime and meal allowances, and considerable numbers of the sample of records display inconsistencies. For example, a number of the records show the same start, break and finish hours, even when the employee is not in attendance. There appear to be unauthorised alterations to hours and so forth and we have good reason to suspect that overtime has been worked that doesn't appear on either the time sheet or the pay slip and we need to interview employees to establish who is affected.
PN1772
The union has been denied the records. The ANZ has made unambiguous statements about that, and so to the extent that we could identify breaches from the records were unable to do so other than in relation to the sample that we have. Despite the lack of an obligation to particularise the suspected breaches as found by the Full Bench in the VAFI decision to which we have referred and the other decisions referred to, the union accepts that it is not unreasonable in these circumstances to identify the general nature of the breaches sufficiently for the employer to know whether what the union is seeking is reasonably connected to the breaches, and we refer there to the authority of Curran v Thomas Borthwick.
PN1773
There, in considering what the official was entitled to inspect, his Honour took the view that it was enough to show that a reasonable prospect exists that the document or other article, of which inspection is sought will constitute some evidence as to the degree of observance or non-observance of a particular award. So on that basis the union's notices and our subsequent advice gave the employer sufficient detail to know if the inspection, or in this case the interview sought had a reasonable prospect of evincing evidence related to the breaches suspected.
PN1774
If I could take the Commission to the decision in IES which is at tab 6 of FSU4, and particularly in the first place to paragraph 45. The Commission there finds that although there is no doubt that the ETU might wish to inspect a wide range of IES documents as part of its broader dispute and litigation with IES:
PN1775
I am satisfied that Mr Glover did and does suspect that a number of breaches of the award and agreement have been committed and hold this suspicion separate and apart from the broader dispute...
PN1776
etcetera, etcetera. At point 1 there the Commission says:
PN1777
However, the ETU permit holder who is to seek inspection of IES documents must outline the nature of the suspicion...
PN1778
which makes it clear that it is a separate issue from the broader dispute between ETU and IES. And (2):
PN1779
...indicate with sufficient clarity what is sought, that it is apparent on its face to the recipient of the request that the specific nature of the documents to be sought are sought to be inspected.
PN1780
He then says - - -
PN1781
THE COMMISSIONER: Was that in the form of an undertaking or a requirement?
PN1782
MR MATSON: Sorry, Commissioner?
PN1783
THE COMMISSIONER: What is the impact of the Commissioner concluding that the permit holder "must"? Is that a direction to the permit holder?
PN1784
MR MATSON: It is a little unclear, Commissioner, I think, and in fact would say it is inconsistent with the later authority of last Thursday's Full Bench decision. But as an abundance of caution we are raising it because we think that even on this higher test we may have complied. But the nature of whether it is a direction or not, I find a little difficult to understand myself. However, the Commission - - -
PN1785
THE COMMISSIONER: But, for example, can I put the proposition to you. Let us say you were successful. Is it open to the Commission to require an undertaking from the permit holder that in conducting these activities the permit holder, one, shall not discuss union membership; two, shall not discuss any dispute in relation to enterprise bargaining and any further undertakings the Commission would consider appropriate?
PN1786
MR MATSON: In the resolution of this matter?
PN1787
THE COMMISSIONER: Yes. If you were to obtain your order, is it open to the Commission? See, it occurs to me that all the Act does is set up a regime and the Full Bench has pronounced on one aspect of that regime but disputes about the operation of that regime can be resolved by the Commission and the Commission is given wide discretion to resolve disputes. Now, a lot of that might turn not on the application of what some might consider general policy but simply on the particular circumstances of the case.
PN1788
MR MATSON: Commissioner, in that respect I think the Commission probably does have very broad powers in terms of what it can contain, what it can issue in the way of directions and orders. However, we would say that whatever they are they should give effect to the intention of the Act and clearly, obviously, not go beyond the limitations of, you know, relating to the areas that can be entered, for example, conferring powers beyond, etcetera. But I think the Commission does have very broad powers otherwise to settle disputes within, as you say, that very broad right of entry that otherwise exists in the Act.
PN1789
THE COMMISSIONER: But why couldn't the Commission fetter that entry in some way? I mean, how else does it give them power to resolve disputes about it other than if it took a decision that one side believed, either fettered or - it couldn't expand the rights that the Act provides, but why can't it constrain those rights?
PN1790
MR MATSON: In proper circumstances it may be appropriate that those rights are constrained in some respects and that is not an issue about which we are directly arguing; clearly, the opposite. But, I mean, we say there is essentially a very broad right or almost a plenary right providing that the Commission doesn't issue orders that are inconsistent with those rights or fetter them in a way which is not reasonable to give effect to the legislation which gives those fairly broad rights.
PN1791
THE COMMISSIONER: But, you see, that is where I might have some difficulty because the argument is put that we should issue orders and unless we have the capacity to resolve a dispute in a way which might fetter a right, why isn't it simply a matter where, say, your organisation attends the Federal Court of Australia and says, look, this is the right, it is being denied to us, impose a penalty. Now, unless the Commission has some powers to resolve a dispute other than simply saying, well, these are the rights, thank you for coming - - -
PN1792
MR MATSON: Well, Commissioner, as I say, I don't think that we contest that there is a capacity in the right circumstances for the Commission to issue some orders or directions that might, in effect, give some kind of fetter provided that it doesn't destroy the overall intention of the Act and the clear purposes under 285G(1) to not confer, or not, you know, confer powers inconsistent - - -
PN1793
THE COMMISSIONER: Yes, I follow.
PN1794
MR MATSON: And in fact I think our draft order in some respects probably does, it could be said at least to fetter the powers that we would say are otherwise plenary powers under that section of the Act.
PN1795
THE COMMISSIONER: Yes. Thank you.
PN1796
MR MATSON: So if we come back to IES just momentarily. The bottom of paragraph 45, the Commission says:
PN1797
A numeration of the five matters referred to in paragraph 16 as set out in exhibit U7 ...(reads)... meet the second of these requirements.
PN1798
And to take the Commission back to paragraph 16 of this decision which is at the bottom of page 5, it sets out what was contained in the notice in those subparagraphs (a) to (g) and among those at (c) are:
PN1799
Employees have not been paid the correct amount of superannuation...
PN1800
which is a directly comparable claim to that made by the FSU in this matter:
PN1801
Employees have not been paid the correct amount of meal allowance.
PN1802
That is in fact exactly a claim that we have made in this matter and so forth. So even on the test set by IES which we think is possibly, or probably, inconsistent with the decision issued last Thursday, we say that the union has sufficiently identified the nature of the suspected breaches. Certainly, neither the Curran v Thomas Borthwick decision nor the IES case are authority for a proposition that the union is required to provide evidence to the employer of the existence of a breach before entry is allowed. When a matter like this comes before the Commission or a court, the Commission or court will need to form a view as to whether there is or isn't a genuine purpose for the exercise of the power and may require some evidence but this can't apply at the time of entry.
PN1803
If the test in Curran v Borthwick is followed entry can only be denied where the information sought has insufficient connection with the breaches as suspected. It would be absurd to have an official standing at the door with their paperwork in hand in a suspicion of a breach and the employer saying: I just don't believe you really have a suspected breach; where is your evidence, because this returns to either the subjective test which was rejected by Gray J in Curran v Thomas Borthwick and in the air pilots' case, or a requirement for the official to produce objective evidence of the breach, which is the very information that he or she, presumably, is there trying to obtain.
PN1804
So the result would be the official standing at the doorstep until he or she meets some standard of evidence as determined from time to time by the employer entirely at his or her discretion, you know, would a statutory declaration from the official suffice? Could it do anything more than the notice of intention to enter has already done? Or do we then start getting into naming employees with all the potential consequences identified by Commissioner Blair and Commissioner O'Connor and in fact endorsed by the Full Bench last week?
PN1805
Or is the union compelled, then, to just abandon that section of the Act entirely except insofar as it is enforced by an order of this Commission or the courts? Because the effect of the employer's interpretation is that entry, if not agreed by the employer which would obviate the need for section 285B at all, can only be affected when sufficient evidence is adduced. And in the circumstances of suspected breaches where prosecution, back payment and the cost of litigation are all implied, it would be an unusual employer that would set a lower standard of evidence than a court or a Commission.
PN1806
So such a requirement by the employer is destructive of the clear terms and intentions of the Act and contrary, we say, to the authorities. If I could come back to the IES decision which is at tab 6 and it is at paragraph 41. At paragraph 41 there is a subparagraph (2) at which his Honour says:
PN1807
As in suspecting that a breach has occurred it is absolutely clear from the provision of 285B of the Act ...(reads)... how much more will depend on the circumstances of each case.
PN1808
If paragraph 41, subpara (2) is read to mean that objective evidence of the holding of a suspicion may need to be produced upon entry we submit that it is both wrong and not founded upon the cases upon which that conclusion in 41(2) appears to be based. The Commissioner, in that matter, Commissioner Grainger, goes through the authorities in some detail. In paragraphs 31 to 40 he reviews the authorities in expressing his conclusion in paragraph 41. There is nothing either express or implicit in the authorities quoted that could lead to the conclusion that objective evidence may be required prior to entry being allowed which seems to be the import of paragraph 41, subparagraph (2).
PN1809
The only authority that goes directly to that point that is cited by the Commissioner is the MEAA v The Advertiser Newspapers decision and The Advertiser Newspapers decision is another prosecution of employer for hindrance and obstruction. And the circumstances in that case were that previous attempt had been made running precisely that kind of prosecution. There was a bitter industrial dispute in place involving individual being issued and union members resigning. The official had arrived without prior notice which was permissible under the then Industrial Relations Act 1988. And the official, while not being granted entry, was told that the employer would meet with her less than 20 minutes later but took that as a refusal of entry. And there are inconsistencies in the claims as to what information was being sought by the union in that case.
PN1810
So if I could take the Commission to the MEAA decision which is at tab 7 and particularly the last two pages of that decision. After citing the Curran v Thomas Borthwick decision, Moore J, who was then deciding whether an employer's actions constituted a hindrance and an obstruction, said, and I am reading from the third last paragraph, about the middle of the page of page 15. It reads:
PN1811
In my opinion there is, having regard to the evidence, room to doubt that the purposes ...(reads)... the prosecutor has failed to establish an element of the offence.
PN1812
So, Commissioner, the context in which that comment is made as to it is only necessary for the company to raise a real doubt about the purpose of the asserted right to enter and inspect is in the context of that very submission, and in the context of a decision which is going to the prosecution, criminal prosecution of an employer for hindrance and obstruction. So, the Court wasn't testing whether the union was entitled to entry, but whether the employer had intentionally hindered and obstructed.
PN1813
The Court found that raising in the mind of the Court of a real doubt as to the purpose is sufficient to defeat the charge, but it is not authority for the proposition that back at the work place an employer need only harbour some doubt to refuse entry, and may demand objective evidence either of the existence of the breaches or the holding of suspicion before entry can be effected, and to that extent we submit that at the conclusion of the Commissioner Grainger in the IES case, he was understood to say this was wrong. Commissioner, it is no more than common sense to say that the permit holder would usually be exercising a 285B power precisely because he or she seeks evidence, of a breach which at that point is only suspected.
PN1814
If he or she had evidence of the breach it would no longer be suspected, by definition. It would be a breach. The Oxford Dictionary defines "suspect" as:
PN1815
...to have doubts, imagine to be possible or likely, to surmise.
PN1816
and requiring evidence is fundamentally contrary to the plain words of the Act. The Act elsewhere, such as in section 99(1) uses the terms:
PN1817
...where an organisation or an employer becomes aware of the existence of...
PN1818
and had Parliament intended there to be a breach in existence rather than merely suspected, it would have been easy to adopt those words. The suspicion will normally be based on advice from members and may be purely anecdotal. No objective evidence will be available more than stating who made the claim and identifying the individual employee immediately raises the problems that were identified by Commissioners Blair and O'Connor.
PN1819
It is entirely conceivable that the employer would determine that this kind of evidence of the suspicion was insufficient to satisfy them that the permit holder's suspicion was genuine. And, in fact, this is implicit in the correspondence of Mr King which is attached to Kimberley Reid's statement at KAR6. I will take the Commission to that briefly. It reads - the Commission has it? It is about halfway down the page. It says:
PN1820
I now ask you to provide details of the nature of suspected breaches of the award and the agreement which you referred to during conciliation ...(reads)... then permission for inspection may be refused.
PN1821
And the letter cites the IES decision to which we have just referred the Commission. So it is clear the intention of the employer was to require that evidence, or, in the alternative, to deny entry.
PN1822
It would therefore be a comprehensive defeat of section 285B if objective evidence was required before power can be exercised. It would be even more absurd if the employer needed to be persuaded by the objective evidence as to the genuineness of the suspicion before allowing entry, as this would introduce a double test for the Federal Court, that is, establishing what was in the mind of the permit holder and what was in the mind of the employer refusing entry. And that is not at all consistent with the test applied in Curran v Thomas Borthwick, or for that matter any of the other authorities to which we have referred.
PN1823
So in respect of the proper purpose argument now before this Commission, we say that the Victorian Association of Forest Industries decision at tab 9 is easily distinguishable on the basis of the findings that the Full Bench set out, particularly at paragraph 33, which is at tab 9 on page 12. It sets out in some detail there what the circumstances were in that case. In that case, all 16 sites had been served with a notice simultaneously, whereas in this matter we are talking about one part of one building of one employer. In the VAFI matter the union sought all of the employment records for a period of 7 years, whereas we seek only the time sheets, pay sheets, contracts and rosters for a period of 2-1/2 years or were seeking, and whether we continue to seek those will in part depend on the outcome of these proceedings.
PN1824
In the decision referred to this was shortly after the initiation of a bargaining period, whereas before the Commission the bargaining period commenced here in 2001, and there has been no activity since 2001 other than one meeting to negotiate an enterprise agreement back in May which failed. Similarly, in the decision at paragraph 33, they refer to pattern bargaining, whereas here there is no bargaining. In those proceedings the permit holder was not before the Commission, whereas here the permit holder, the relevant permit holder was Mr Wilson who gave evidence on this very point.
PN1825
So there are very substantial and distinguishing features of the circumstances that allowed the Full Bench to make the finding of inference that it did, that inference being that the union in that case had invoked 285B, or may have invoked 285 for a substantial purpose not related to the suspected breaches, viz the improvement of its bargaining position.
PN1826
However, there is nothing about the circumstances before this Commission that supports such a finding. In fact, Ms Reid conceded, as I mentioned earlier, that the EBA issue of excessive overtime would no longer be a factor, and that is at transcript paragraph number 1346. She also conceded having no evidence of any other purpose, and that was stated at transcript paragraph number 1328, that she deduced her conclusion exclusively because she considered the reasons given to be inconceivable. That belief was not supported by any foundation, nor was there any evidence led by ANZ to support such a contention.
PN1827
The union submits that in any case it is immaterial in the instant matter, because of the extent of the testing of the genuineness of the suspicions, including through correspondence such as FSU1 where breaches were conceded, and in conciliation, and now in evidence in these proceedings. In summary, we have provided more than sufficient information on the nature of the breaches. The genuineness of the suspicions has been put beyond question, and in saying this we rely on the original notices, the direct communication between the parties prior to the employer's notification, the communication between the parties in conciliation before this Commission, and the evidence adduced in this arbitration, including the evidence of the permit holder who signed the notices.
PN1828
The employer is in no doubt as to the types of underpayments we complain of. In fact, they now claim to have become a process of correcting a small number that they have conceded, and we say it is extreme obfuscation to continue to complain that the union has not provided that information.
PN1829
Commissioner, if I could turn to the question of the merits of issuing of an order. The union says that the power under 285B is a power to interview, as opposed to invite employees to opt to be interviewed. If I could refer the Commission to the employer's contentions at point 16. Here ANZ is setting out the arrangements that they believe will suffice. They say at subparagraph (b):
PN1830
Any employees who wish to be interviewed by the FSU will be asked to communicate their interest to a specified FSU representative.
PN1831
THE COMMISSIONER: Yes.
PN1832
MR MATSON: Commissioner, that kind of statement is repeated in evidence by Mr Pentreath at points 10, 11 and 14 of his statement. It was repeated by Ms Conroy at paragraphs, 12, 15, 16 and 20 of her statement, by Mr Smith at 45 and 48: words all to the same effect where the reading of the union's right to interview is described as essentially equal to employees can attend if they wish. Similar statements were given in oral evidence.
PN1833
The union submits that the interview means an active role for the union, but not a role for the employer other than to protect their right not to be hindered or obstructed. In an environment where employees are closely supervised, tightly targeted, have their calls monitored, and so on, it is unreasonable to conclude that they will elect to be interviewed without some very strong reason. This reason will not be effectively conveyed by a notice on a union notice board in a break out room used only by a percentage of people each day, and a subtly dissuasive e-mail from management or, in fact, any e-mail following on from that issued by Ms May, to which Ms Reid was taken in her cross-examination which is contained in the folder at tab 12.
PN1834
The union in making its local arrangements at ANZ and elsewhere does sometimes make arrangements for discussion rather than for investigation of breaches, which are not entirely unlike the arrangements proposed by the ANZ. And that is done because it is convenient to both the union and the employer in the circumstances at the time.
PN1835
The fact is that most employees do not attend when those arrangements are made, either because they are not aware that the union is there, they don't know what the union is there for, they don't understand the issues, they don't think the issues have any relevance to them, they are under too much work pressure to give priority to it. They may think it will be frowned on by their management, they may fear that there could be reprisals, and that is implicit in messages and correspondence such as Ms May's e-mail. Or perhaps they read the Herald Sun too much, and, you know, are irrationally terrified of union officials.
PN1836
This is not something that the union accepts, even in the context of discussions. It is utterly unworkable in interviews in relation to suspected breaches. And contrary to ANZs assertion that we can't know because we haven't tried it, as Mr Wilson's evidence showed there are instances when such arrangements have been tried in the context of discussions, and they have largely failed miserably.
PN1837
We suggest that it is reasonable for the Commission to conclude on the basis of its own knowledge that there is a level of intimidation involved here in the very fact that employees have not pressed for their legal minimum entitlements. That has been conceded by the employer where underpayments of overtime have apparently been rectified, though we have had no final commitment from the employer that that has happened.
PN1838
Therefore, it is reasonable to conclude that they may have reservations about individually approaching their team leader to be released, and about walking past management to get to the union. This is especially so when the environment is at least a little confrontational, and employees have limited access to the union's information. The e-mail of Ms May that was circulated to employees we say is a most inappropriate document. The employer has no role seeking to interpose itself in the exercise of a right conferred on the union by the operation of the Act.
PN1839
If I could turn to the question of history of the custom and practice of what has gone on in terms of entry by the union. To the extent that it is relevant, we say the evidence displays a long history of walk through access, and no evidence of any restriction attempted by the ANZ until 2001. The Commission should note the inconsistencies in the evidence of Ms Reid and Mr Smith, on the one hand, and of Mr Berry on the other.
PN1840
When Ms Reid gave evidence that she wasn't aware that walking the floors had ever been a practice in the past, and that is contained in her statement at paragraph 8. Mr Smith, similarly, implies the same sorts of things at paragraphs 45 and 48 of his statement, though was less sure about what had actually occurred in the past. I particularly refer the Commission to transcript at paragraphs 14, 25, and 1432 - in fact, from 1425 to 1432. Meanwhile, Mr Berry, by contrast, gives evidence that he did witness the union walk the floor in his statement at paragraph 5, and even to the point of where they were standing at paragraph 7. He confirmed that in his oral evidence.
PN1841
On the other hand, the union adduced direct evidence of the practice, how it was organised and how effectively it worked, and how disruption, security and privacy didn't become consideration until the time when stop work meetings were being promoted by the union, and then suddenly all three of those concerns, disruption, security and privacy, were of the highest priority.
PN1842
So in the period in late 2001 when stop work meetings were being held, during which the bank - it was that period that the bank then commenced to experiment with more restrictive demands. That appears to have started in September - in fact, in October 2001, relating to an entry in September 2001. The correspondence and exchange evidences the types of measures that were contained in the protocol were at issue between the parties, and it validates our submissions that the access previously enjoyed was now under attack.
PN1843
We say that during the period through 2002 things essentially returned to normal, except for 52 Flinders Street where the bank maintained a concern about the incident between Ms Bethel and Mr Goodwin. And then there was clearly a return to hostilities in June this year after the ANZ had terminated the EBA discussions. Commissioner, the evidence points persuasively to the union's contention that the previously agreed access arrangements began to be restricted in 2001, in fact, in late 2001.
PN1844
In respect of the site at 530, ANZ has variously pointed to the operation of the Privacy Act and related change of managers and disruption for its decisions to restrict access but nowhere in the correspondence are either of those grounds cited when the new attitude first surfaced in 2001. In fact, it was a full month after our official walk-the-floor on 20 August 2001 that a letter was penned on 20 September citing security concerns. This correspondence again, Commissioner, is contained at tab 12. Had disruption been a concern, or the operation of a much higher Privacy Act been a concern, it was not beyond Mr Harvey to refer to it.
PN1845
In the ANZs submissions, it was purely coincidental that those restrictions arose at a time when material was being circulated in walk-throughs that was dealing with negotiations over enterprise bargaining was promoting stop work meetings. In fact, the question of privacy wasn't raised by ANZ until after the disputed - what could be called his assault or /posse of managers incident, and then it was only raised in the most general of terms. In fact, the Privacy Act itself wasn't raised until these proceedings were commenced.
PN1846
Commissioner, if I could turn to the EBA provisions. There were some questions in the witness evidence about the operation of clause 9.3 of the Enterprise Agreement. We say that clause 9.3 specifically deals with matters directly parallel to the kinds of powers that are conferred by sections 285B and C. The question has to be asked, what the purpose of those provisions would be if it was - if the union was meant to be denied access to any place where confidential information was kept.
PN1847
The direction of cross-examination by Mr Tuck seemed to be relying on an interpretation of the clause that read, the term work books document, to mean only time and wages records. And that frankly would be absurd. The reason for obtaining employer records is almost invariably to use them for a secondary purpose, including the resolution of disputes before this Commission, or prosecution in the courts. And that clause would be bereft of purpose if it was so construed. It extends to and is there to protect all confidential material that might be inspected in the course of entry under that clause.
PN1848
Both Ms Noye and Mr Wilson gave evidence that job evaluation inspections may require viewing the work performed by employees, and may incidentally include some customer information. In any event, the plain meaning of the clause contended by ANZ is not sustainable. Work inspected must mean the work performed by employees. There is no other meaning that could reasonably be given to it.
PN1849
The intention of the clause is to, as it says, preserve the confidentiality of all work books and documents inspected. It is also the clear intention of the clause that the practice of officials having access to those places would continue. It reinforces the evidence of Mr Wilson and Ms Noye that the union has had access to these sites for both discussions and interview, albeit not so clearly distinguished between the two. If entry had always been restricted as claimed by ANZ, there would never have been any access to confidential information for which we would need such a clause.
PN1850
If I could turn then to the question of privacy and confidentiality. It is ANZs submission with respect to security, privacy and confidentiality - it seems to be saying that the Commission should deny what is an express power under this Act, because as an incident of its exercise officials may deliberately procure information in order to use it for fraudulent, improper or illegal purposes. There is no basis for this assertion. In the event that something occurs, which has never occurred to date, proper remedies apply under the respective laws.
PN1851
The evidence was absolute on the fact that there has never been any incident alleged, let alone proven, where customer information has been obtained or misused. We don't take issue with the fact that the ANZ also has obligations under other legislation, but for the purposes of this arbitration that fact is practically irrelevant. It is also significant that such obligations apply to every employer, and that there is nothing unique about the ANZ.
PN1852
In relation to the Privacy Act, the Privacy Act can impose relevant obligations on the employer in one of two ways. Where there is a privacy code which is binding on the employer and been approved by the Privacy Commission under section 18BB. For the Commission's convenience I have actually included some relevant sections of the Privacy Act at tab 10. I don't intend to take the Commission to section 18BB, but we can address it again if the employer has some vastly different view. But essentially in this case there is no code, and so that section would not apply to the ANZ.
PN1853
The only other route which does in fact apply to ANZ is that any breach of a national privacy principle would constitute a breach of section 6A. So if I can take the Commission to tab 10 for a moment. The third page in, which is page numbered 20, clause 6A commences, "Breach of a national privacy principle", and 6A(1) reads:
PN1854
For the purposes of this Act, an act or practice breaches a national privacy principle if, and only if, it is contrary to or inconsistent with that national privacy principle.
PN1855
That is not a breach, incidentally, that carries any penalty in its own right. Its enforcement would rely on an individual complainant laying a case, and establishing some breach or some damages under section 52, which is also included in the extract that I have given the Commission here under tab 10.
PN1856
In relation to the relevant principles, they are contained in schedule 3 to the Act, and they are attached to the back of the extracts at tab 10. If I can take the Commission to page 198, under 4, Data Security, 4.1 reads:
PN1857
An organisation must take reasonable steps to protect the personal information it holds from misuse and loss and from unauthorised access, modification or disclosure.
PN1858
So what is required by the Privacy Act as far as the ANZ are concerned are reasonable steps, and what is reasonable has to be determined obviously in accordance with circumstances. And the circumstances as put very succinctly by Mr Wilson in his evidence, and not contested by the ANZ - in fact supported by the ANZs evidence - is that in the last 87 years of the union operating in these workplaces, there has never been any cause for complaint about privacy being breached.
PN1859
The steps warranted in such circumstances should not be intrusive, in the context where the union has a statutory right of entry and inspection. Certainly a defeat of that right could not be said to be a reasonable step. The Parliament granted rights of entry and inspection and interview under the Workplace Relations Act, and the employer has not yet taken the Commission to any specific obligation under the Privacy Act, or any other Act, which evinces a clear intention to override or limit specific rights conferred under section 285B.
PN1860
They have argued, in effect, or adduced evidence to support an argument that the power of inspection and interview should be rendered nugatory because of other legal obligations which are asserted on the basis of their interpretation of the term, reasonable steps, arising under principle 4.1. In our submission, the Commission's decision must prefer the clear intention of the Act which it is created to uphold, to vague assertions about interpretations of other legislation. The EBA commitment is a legally binding commitment which could be considered a reasonable step in itself. The notifications made by the employer that gave rise to these proceedings, whilst we would not hope to see them again, could be considered a reasonable step.
PN1861
The undertakings given in evidence by the two most senior officials at the branch of the union as to not having any intention or interest in obtaining such information in the course of inspection of these kinds of breaches could also be considered a reasonable step. The Parliament has passed laws such as the Privacy Act in the full knowledge that persons bound may be inspected by unions, by the ACCC, by WorkCover inspectors, police, customs officials, by this Commission, and probably a range of others. The Privacy Act was accompanied by a raft of amendments to other Acts, but no reference was made to the role of unions or rights of inspection, except to exempt employee records, which arises under section 7B(2) to ensure that they could be inspected for relevant purposes.
PN1862
The ANZs submission appears to rest on an assumption that there is some inherent conflict between the Privacy Act and the Workplace Relations Act, and that somehow this conflict needs to be resolved in favour of the employer's interpretation of the Privacy Act. We submit that this is not so. The union is not a stranger to the Privacy Act. For example, relevantly as an organisation, an organisation is defined - if I can take the Commission to page 22 of the extract:
PN1863
An organisation means an individual or body corporate...
PN1864
etcetera, and a union is considered an organisation pursuant to that clause. The union has standing to bring a matter before an enforcement body, which is also defined in section 6, that is on page 11 of the extract. An enforcement body includes at (f) "and other agency", etcetera, etcetera, and agency is defined to mean on the preceding page, which is numbered 5 at (g), the Federal Court.
PN1865
So, for example, in a proceeding under section 178, the union would be permitted to obtain and disclose information for what the Act considers to be a secondary purpose. In fact, the national privacy principles - if I could take the Commission back to those briefly, at 194 and 195. The national privacy principles set out the terms of use and disclosure of private information, and it reads:
PN1866
An organisation must not use or disclose personal information about an individual for a purpose (the second purpose) other than the primary purpose of collection unless...
[11.31am]
PN1867
And then if I can refer the Commission to subclauses (f), (g) and (h). They read:
PN1868
The organisation has reason to suspect that unlawful activity has been or is being or maybe engaged in, and uses or discloses the personal ...(reads)... or breaches of a prescribed law.
PN1869
And I interrupt there just simply to say that breaches of a law imposing a penalty would include a proceeding under section 178 of the Workplace Relations Act. And then further at subparagraph 5:
PN1870
The preparation for or conduct of proceedings before any court or tribunal or implementation of the orders of the court or tribunal...
PN1871
Which clearly would contemplate the enforcement of orders of this Commission. We raise that, Commissioner, simply to indicate that we believe the Commission should take account of the fact that the Union is an organisation recognised by the Privacy Act, and that it will in some circumstances have a right to confidential information. And the fact that the Union is an organisation with some standing under the Act, rather than a stranger to it, and it is relevant to determining what are reasonable steps under principle 4.1. And it is therefore relevant to the Commission's consideration of how this dispute ought to be resolved. There is no clash of legislation, we say, requiring the Commission to defeat section 285B, and to the extent that there are competing interests, the employer is bound only to take reasonable steps.
PN1872
As I mentioned briefly, there are no penalties or fines for breaches of national privacy principles. The Privacy Commission investigators have described the Privacy Act as soft touch law. There are facilities for the Privacy Commission to issue declarations, including action that should be taken to prevent recurrence and/or that specified compensation should be paid. And these determinations are subject to judicial review. However, it absolute that these determinations must arise from a complaint about interference with the privacy of an individual. So while a breach of the national privacy principles may be a relevant consideration, as I say, there is no penalty per se for such a breach.
PN1873
MR MATSON: The employer has also raised the question of their contractual obligations for privacy. At point 43 of their outline of contentions, the ANZ refer to those obligations, to preserve the security of client information. The union understands these to exist, if not explicitly in the terms of the contracts, at least implicitly. But the union doesn't consider either those obligations, or the obligations under the Privacy Act to be overly onerous in this context.
PN1874
But if we were to put them in a hierarchy, we would say that the contractual obligations are in fact potentially more onerous than those arising under the Privacy Act. And that is because proving negligence is potentially simpler than proving failure to take reasonable steps. The Privacy Act is slanted toward conciliation and rectification of procedures as opposed to contractual remedies which contemplate foreseeable damages. And, as just submitted there are no penalties for the breach of the national privacy principles.
PN1875
So the ANZs contractual obligations to maintain security, such as they are, have existed for a very long time, well before the advent of the Privacy Act. And the union's role in all of this has not altered significantly, other than form you know, as a request of the amendment to the award - sorry - amendment to the Act, which took the term, "from ensuring award observance" to "investigating suspected breaches" which, in effect, was not a very significant change in itself. So the commencement of the Privacy Act didn't mean that privacy assumed a greater importance in 2001, and wasn't a ground for initiating a tighter regime on union entry.
PN1876
The union's evidence as to the role of bargaining and stop work meetings is a far more credible explanation for the ANZs change of policy. So the Commission should recognise the fact that there has never been a suggestion of impropriety. The union is well-adapted to the industry in which it works. A substantial number of its officials come from the finance industry, and the union is a product of its members of the industry from which it sprang. It is very well attuned, it is very well regarded, and it is attuned to the importance assigned to ethical and proper treatment of information.
PN1877
The Commission asked during evidence whether we intended to take it to the question that we raised in relation to health and safety inspectors under the various state health and safety regimes. And if I could address that briefly. The rights of entry and inspection of permit holders - and I should say, Commissioner, that the various excerpts from the various bits of health and safety legislation, so far as they are relevant are contained under tab 11.
PN1878
And the right of entry and inspection of permit holders under 285B are substantially the same as the powers of inspectors under the various State health and safety legislations. I have included under that tab excerpts from the legislation in Victoria, New South Wales, Queensland and Western Australia, as that is where the centralised sites are. For all relevant purposes the other legislation, including ACT, Tasmania, South Australia, and Northern Territory are the same. But if I could take the Commission very briefly through some of this legislation, the first is the Victorian Occupational Health and Safety Act, on the second page under tab 11, commences part 5, Inspections, 38.1 reads:
PN1879
The Authority may appoint an officer or an employee of the Authority to be an inspector for purposes of this Act.
PN1880
And then at 38.4 at the bottom of that page:
PN1881
The Authority must furnish every inspector with identification card which inspector must produce if practicable on each occasion before he or she proceeds to act pursuant to this Act, and on demand.
PN1882
Which are directly parallel provisions to 285B:
PN1883
The inspector may, for the purposes of execution of this Act or the Regulations...
PN1884
I am sorry, this is 39, Powers of Inspectors, on page 32:
PN1885
(A) Enter, inspect, and examine all reasonable times of day or night any workplace in which the inspector considers it is necessary to inspect ...(reads)... required to attend the workplace.
PN1886
Further down at D and E, it reads:
PN1887
Make such examination and inquiry as may be necessary to ascertain whether or not this Act or the Regulations have been complied with ...(reads)... or other thing whatsoever at the workplace.
PN1888
So clearly there are some broader powers there relating to the issues of potential injury and so forth, as opposed to mere compliance with the Act. But in all other respects, are very similar provisions. Then at page 33, 39(1)(i):
PN1889
...require the production of and examine and take copies of any document or any part of any document.
PN1890
At 39(2):
PN1891
An inspector may, for the purposes of (1) seek, whether necessary the assistance of any person and the occupier of any ...(reads)... access to the workplace.
PN1892
At (3):
PN1893
An inspector is authorised to take affidavits and so forth in relation to their...
PN1894
Now, clearly, that is a power relating again to potential prosecutions of accidents and so forth which have an immediacy that don't arise under the Workplace Relations Act but in all other respects very similar provisions. In relation to notice at section 40(1):
PN1895
Upon entering any workplace an inspector shall take all reasonable steps to notify the employer and health and safety representative of the entry.
PN1896
Their provisions are very similar to what were in the Act prior to the requirement for 24 hours notice but, again, there is a requirement for advice to be given to the employer about their entry. There is a requirement at section 41 for the employers, etcetera, to insist an inspector. At section 42 it is an offence - at (B):
PN1897
Any person who obstructs an inspector in the exercise of their powers under this Act or the regulations or induces or attempts to induce any other person to do so...
PN1898
So, again, very similar provisions about hindrance and obstruction. Then over the page, subsection (f):
PN1899
in any other way hinders, impedes or opposes an inspector in the exercise of the powers of the inspector under this Act or the regulations.
PN1900
So, that is a fair summary there of the provisions of right of entry under the Occupational Health and Safety Act 1985 in Victoria and you will see there are some very substantial similarities. Commissioner, I don't intend to take you through each and every one of these pieces of legislation. Suffice to say that they are in very similar terms. The next Act is the Queensland Act and the Commission can see that there is an appointment provision there at section 99. There is a provision of an identity card at section 102. The inspector is required to produce the identity card at section 103 upon entry.
PN1901
At 104 the right of entry goes to workplaces at (A) and then some other matters which are specific to injury or likely injury. At subsection (4) the inspector is not authorised to enter any part of domestic premises which is a direct parallel with the provisions of the Workplace Relations Act. And then at section 108 which is on page 73 sets out the general powers after entering the workplace which include inspection, copying documents, making inquiries and so forth. And, again, in relation to the New South Wales legislation very similar provisions again, especially those set out at sections 50, 51, 57, where there are provisions which draw language very similar to and provide powers directly parallel to those powers under the Act.
PN1902
So without taking the Commission to each one of those bits of legislation we say there are substantially similar powers which answers the question, I hope, that was raised during the evidence. So they all contain matters relating to the issue of a permit or identification card or a requirement that they be produced on entry. Requirements to provide notice, though, that is typically on entry rather than the 24 hours in advance. The right of entry to inspect and examine, require the production of documents, interview employees and so forth.
PN1903
I mean, there are some material differences relating to the powers to seize materials, take photographs, make sketches, direct that parts of the workplace remain undisturbed. Clearly, powers relating to investigation of accidents. So the kinds of matters that may be investigated by WorkCover inspectors are broader but they incorporate procedural breaches and the like. And so, for example, earlier this year WorkCover Victoria entered, inspected and conducted interviews in relation to the determination of the number of health and safety reps required at ANZs operations at Dorcas Street. And in the performance of those kinds of duties their powers and duties are extremely similar to those of a permit holder under 285B.
PN1904
More relevantly, though, the application of the Privacy Act is no different in respect of the two activities. All the employer is obliged to do is to take reasonable steps to prevent unauthorised access or misuse. Against this there is a specific statutory regime authorising entry and inspection for the purpose of inspecting suspected breaches. Ms Reid's evidence on the inspection by WorkCover inspectors was, at the very least, uncertain claiming variously that it would depend on how the inspection was conducted and then that she didn't accept that there was a parallel with inspection under 285B. Given the legislation that we have just taken the Commission to we submit that that parallel is undeniable.
PN1905
In relation to health and safety the claim as to 285B powers endangering health and safety doesn't really deserve a response. The union's experience is that far from creating health and safety risks that health and safety at the ANZ workplace has measurably improved by our presence. No evidence was led in respect of that assertion except perhaps an attempt to draw some inference from the contested circumstances in relation to the incident the subject of attachment KAR1 to the statement of Kimberley Reid.
PN1906
Here it is set out that on Ms Bethel's version of events she physically obstructed Mr Goodwin in order to try to prevent him walking the floor. On the witness evidence of Mr Wilson the union's investigation showed that a posse of ANZ managers confronted the organiser and there were about six of them, five males and one female, and they tried to escort him to a room. And that was set out at paragraph number 700 of transcript.
PN1907
Two points arise about the employer's contention. The first is that the version of events is contested. Only one witness before this Commission was present at the site on the day and gave evidence and that was Mr Wilson and he conducted an investigation and to any extent that this incident might be relevant his evidence should be preferred to a statement which could not be tested. Secondly, the incident was not evidence of a health and safety issue arising as a result of an official walking the floor. In fact, on the contrary it arose, even on the employer's version of events, precisely because the employer was trying to prevent the organiser from walking the floor.
PN1908
We say that the employer is fabricating grounds to deny the union access to its rights under section 285B. As I mentioned earlier the employer has jumped around between a number of reported reasons for resisting each of the union's attempts to confirm its suspicions about breaches. The records could not be produced variously because the employees weren't union members, employees confidentiality - sorry, their confidential information hadn't been approved by them to be released to the union, the task was overly onerous, the union's motives weren't related to non-existent enterprise bargaining, the union hadn't provided sufficient details of the suspected breach, we hadn't identified the individuals in respect of who they applied and so on.
PN1909
The union has been denied the power to interview employees for a range of similar reasons along with some new ones including that our presence anywhere near the work stations is argued to be hindrance and obstruction, by definition, and that it breaches ANZs public liability obligations, health and safety concerns, the Privacy Act and a range of other unsubstantiated arguments. All this is more than circumstantial evidence. The employer is engaged in a strategy of trying to deny the union access to employees and information and is using the blunderbuss approach to finding a ground that will stick.
PN1910
On this occasion they have overstepped the mark we say and deliberately hindered and obstructed officials in the performance of their legitimate duties under section 285B. The evidence of Ms Reid was vague and inconsistent. Ms Reid was evasive about where the authority to determine access arrangements in ANZ rested. Mr Smith, who was introduced to give evidence in part about the past access and appropriate mechanisms for the future, conceded that he didn't know whether he had the authority to decide such matters. And that is contained at transcript paragraph 1478. He was unaware of any written procedure predating the protocols now advanced and was unable to give any evidence about the practices that led to the under-payments claimed by the union.
PN1911
Ms Reid also made assertions about the history of the so-called protocols prior to 2001. Those assertions were vague and purported to rely on documents which haven't been presented in evidence and, in our submission, don't exist. Her evidence about the reasons for the change in attitude contradicted her assertion that there had been no change in attitude but the restrictive protocols were longstanding culminating in the evidence at transcript paragraph number 1363. This statement was vague and inconsistent with the documentary evidence before the Commission. The evidence as to what she knew of past practice on entry was particularly unconvincing and was directly contradicted by Mr Berry at point 5 of his witness statement. It conceded that the practice of walking the floor was engaged in prior to 2001 and not challenged.
PN1912
I take the Commission to the issue of hindrance and obstruction. We say that in relation to the argument that the mere attendance of an official at the work station is hindrance and obstruction, we say that the submission, if upheld, would render 285B(3)(b) and (c) nugatory. The functions of inspection and interview cannot be performed without some necessary distraction of employees and if that were held to constitute hindrance and obstruction the subsections would be entirely inoperable. There is nothing unique about this employer. If section 285B were to be read as only to allow direct inspection and interview where it would not cause any delay whatsoever there would be no industry at all where it could operate.
PN1913
The Parliament has determined that the scheme of entry, inspection and interview ought to operate limited only by section 285E(1) and 285D and it is not an answer to allege that disruption when the scheme of the Act contemplates - I am sorry, it is not an answer to allege disruption when the scheme of the Act contemplates that there will be some inconvenience to the employer. The remedy open to the employer is deliberately restricted to that available in 285E(1) when the conduct constitutes intentional hindrance and obstruction.
PN1914
Commissioner, these arguments were considered in the decision in Curran v Thomas Borthwick in which we have taken - particularly at paragraphs 46, 47 and 49. It commences on page 14 under tab 1, at the very top of the page:
PN1915
The words hinder and obstruct have often been used in the creation of offences ...(reads)... it is recognised that the user of the highway for this purpose will not...
PN1916
"the use of the highway", I think it should read -
PN1917
...for this purpose will not amount to an obstruction.
PN1918
As the High Court consisting of Latham CJ, Richard and Dixon JJ, said in Schubert v Lee:
PN1919
Where the alleged construction consists in the physical presence of the defendant upon the highway ...(reads)... for legitimate purposes by using it for purposes other than a highway.
PN1920
See also Haywood v Mumford, page 138, and the judgment of Griffith CJ:
PN1921
Similarly, with respect to the offence of hindering a police officer it has been recognised that an act ...(reads)... not to regard the police officer as hindered. (See Leonard Morris)
PN1922
In the judgment of Bray CJ, with respect to the question of lawful excuse advising a person not to answer a question. And at pages 543 and 544 in the judgment of Wells J with respect to taking into account all of the circumstances that determine the reasonableness of what might otherwise be taken to be hindrance:
PN1923
Applying this approach to the statutory provisions applicable in the present case it will be seen ...(reads)... inspection of the particular part of the premises would amount to hindering or obstructing an employee.
PN1924
Then, further, Commissioner, on the next page at paragraph 49, the court says:
PN1925
Some borderline cases were discussed in argument. Where inspection is demanded of a number of items ...(reads)... at which delay or fobbing off amounts to hindering and obstructing.
PN1926
Clearly, Commissioner, that decision sets out that the mere exercise of a power to interview, unless abused, cannot constitute intentional hindrance and obstruction. Section 285E is only enlivened where conduct has occurred and in the light of all of the circumstances it has found that what has actually been done is, in fact, intentional hindrance and obstruction. And such a remote prospect doesn't constrain the Commission from properly giving effect to the remainder of the section.
PN1927
The evidence of Ms Conroy did not make out any ground for refusing entry in the terms sought. Ms Conroy's aversion to union officials or particular difficulty in responding to them was belied by her ability to respond competently in the somewhat more formidable circumstances of this Commission and at paragraph 12 she stresses the length she would go to to avoid contact with union organisers; appears to be inconsistent with paragraph 15. And I will take the Commission to those very briefly.
[11.57am]
PN1928
Commissioner, first at paragraph 12 she says:
PN1929
When the representatives are in the kitchen I feel uncomfortable, and entering this area will attempt to avoid it for the duration of the FSU visit...
PN1930
and so forth, talks about it being confrontational and so forth, yet at paragraph 15 says:
PN1931
I don't believe during the site visits if FSU representatives were to be found in the meeting rooms I would be uncomfortable from attending a meeting with them ...(reads)... if I wanted to.
PN1932
In any case, it is not our contention that employees should have to feel completely comfortable about refusing to be interviewed in respect of suspected breaches of the award or the EBA. The exercise of the power of investigation and interview does have some implication of being required to be interviewed. That is not a situation in which every single person can be assured of being completely relaxed and comfortable. In terms of the appropriate remedy, if I could turn to the ANZs protocol, the various protocols, the employer's protocols are themselves directed, we say, to an extraneous purpose, and we say it is that of discouraging employees from having any contact with the union.
PN1933
The protocol by dictating such a process and location is an unreasonable restriction imposed by the employer rendering our power to enforce the relevant provisions of the award and the enterprise agreement nugatory, and certainly rendering our power to interview nugatory. The union has a right to interview any employee within the description set out at 285B(3)(c), and we say by design the ANZ protocol prevents the union from exercising that power in respect of any given employee, and by doing so effect could not be given to the Act.
PN1934
It seems that the employer is apparently confusing the powers under section 285B of interview with the powers under section 285C to enter and to have some discussions. As I indicated earlier a number of times in its contentions and witness statements and evidence ANZ refers to employees who wish to participate, and those are words that are taken directly from section 285C(1), and apply to discussions. They do not apply to interview under section 285B. And I think this is at the very heart of the misunderstanding held by ANZ.
PN1935
The union has a power to interview all employees within the scope of 285B about the suspected breaches and, logically, the union accepts that that should not extend to employees who could not have relevant information or be affected by the breaches. The union is not required to sit idly in a room hoping that employees, whether members or not, will run the gauntlet and set aside their work pressures and their real or perceived prejudices of management in order to subject themselves to interview by people they haven't seen and about matters they can't possibly hope to have any use for or understanding of.
PN1936
If I could take the Commission to our draft order, it proposes a practical and efficient means to conduct the interviews. It is directed in a specific and limited way to the powers conferred under section 285B, and only to those powers, and we say that the order that should issue is one that has a rational tendency to settle the dispute in circumstances where the ANZ is playing a game of ducks and drakes over who has the authority to authorise entry, has issued two versions of their protocols, or if on the evidence of Ms Reid each one of the bits of correspondence prior to that is also a protocol, something in the order of eight or nine different protocols or sets of protocols, none of which is consistent with another, is relying on previous correspondence as relating some kind of protocol, asserts without any evidence that this has pre-existed 2001 and in its own evidence is proposing to apply some version of their protocol unless the outcome of these proceedings prohibits it.
PN1937
The order, while permitting more than one entry doesn't go beyond what is necessary. The Commission is empowered to prevent and settle disputes about the operation of division 11A, and the ANZ has defined the scope of the dispute by the issue of its protocols. In effect, this case centres around the ANZs obligation to show how its various protocols fit within division 11A, and the Commission should issue the order in the terms sought by the union to settle the dispute over entry and interview at 530 Collins Street for all the reasons given, and it should take into consideration that the order is restricted to 530 Collins Street, confined to situations of a suspected breach, and provides only for the process of interview.
PN1938
The jurisdictional requirement for the issue of the order is built into the draft order at subclause 3.1(c). The order only has application where a breach is suspected and not otherwise, it is within jurisdiction and is necessary to settle the dispute. Any order confined to a shorter period or a single entry will fail to deal with ANZs various protocols, and therefore will fall well short of the Commission's obligation to prevent and settle disputes about the operation of division 11A. The proposition that the union approach people at their work stations is the only means to give effect to the right to interview in the circumstances.
PN1939
To suggest that a person sitting patiently in the back office awaiting visits from those who may choose to subject themselves to interview is effecting a power of the interview is absurd. The draft order provides a mechanism to give effect to the Act without undue interference to the performance of work by inviting employees to be interviewed. The attempt by ANZ to characterise this as the commencement of the interview as they do at point 27 of their contentions is not correct, but even if it were correct, it is within power and entirely appropriate.
PN1940
The draft order allows for employees to be interviewed in groups of up to 15, and in a practical manner this allows the union to identify who is and who is not affected by each category of breach fairly quickly and get those not affected by the suspected breaches back to work as quickly as possible. The employer cited some Oxford Dictionary definitions of the term "interview". Both the version that they cite, which cites the word "persons" and the New Shorter Oxford Fourth Edition talks about:
PN1941
A meeting of people face to face for the purpose of consultation.
PN1942
So whether interview means between people or between persons, they are both non-specific plural, and I don't think it requires me to cite the many instances in common parlance where interviews are conducted with more than one interviewee at a time. The word "interview" does not singularly mean a discussion only between two participants, and there is no imperative or in fact any good reason why the Commission should attribute such a narrow meaning to the word. We say that the ANZ submission attempts to defeat the plain meaning of the expression as it is used in the Act.
PN1943
As to the requirement in the draft order that the draft order be circulated, the Commission has had its attention drawn to the e-mail of Tracey May, and that e-mail plainly represents the union's intention and purpose, or put at its most conservative, it is clear that there were different versions of the facts being communicated to employees. So, when a union representative sought to put his view as to the purpose of the inspections he was issued with a warning for abuse of the e-mail system. It is imperative, in our view, that the outcome of the Commission's decision be communicated directly to employees to ensure that there is no such misrepresentation.
PN1944
At point 48 of the employer's contentions they imply that any or in fact I think they state that any further pursuit of the records is some form of duplication. We reject that suggestion and we reserve our rights as to that argument, and as to the argument that it is a matter expressly for the Federal Court. If there are matters that can properly be dealt with by this Commission under section 285G, Commissioner, we will bring them here. And, Commissioner, that concludes my submissions.
PN1945
THE COMMISSIONER: Thanks, Mr Matson. Mr Tuck, do you want a short break for 10 minutes, or a longer break until a quarter to two?
PN1946
MR TUCK: I am happy to take an early lunch break now, Commissioner.
PN1947
THE COMMISSIONER: We will resume at a quarter to two. The matter is adjourned till that time.
LUNCHEON ADJOURNMENT [12.07pm]
RESUMED [1.48pm]
PN1948
THE COMMISSIONER: Yes, Mr Tuck.
PN1949
MR TUCK: If the Commission pleases, Commissioner, I have a folder which I will hand up to you. It is not dissimilar to - - -
PN1950
THE COMMISSIONER: Well, yours is bigger.
PN1951
MR TUCK: It is not dissimilar, either, to the one that you have already received from Mr Matson.
PN1952
PN1953
MR TUCK: Commissioner, the application before you is one of the FSU, and it is an application that they seek orders in relation to the ability to interview an place a series of arrangements around that application as to how they wish the interviews to take place. Essentially, the issue for the Commission is whether or not there is evidence before you to move the Commission to make an order of that kind. Now, there is a number of issues that we say need to be considered in answering that question. First is a consideration ought to be given to the nature of the power under section 285B.
PN1954
Second, consideration ought to be given to whether or not the elements that go to the ability of a party to exercise rights under 285B exist, and finally, consideration ought to go to the reasonableness of the arrangements being proposed, and they talk about reasonableness, picking up some of the language that has been sprinkled throughout some of the decisions, particularly in the Federal Court, where the concept of what is a reasonable accommodation is considered.
PN1955
Now, in considering the question of whether or not these are orders that ought to be made, in considering those issues about whether or not these are proper orders to be made in the context of the evidence before the Commission, we intend to make submissions relating to how the provisions ought to be approached, the access that the union presently has at the work place, and whether or not as the union seems to be intimating that this is somehow a hostile work place for the union, issues about confidentiality which we raise, raise on the basis of a proposal that has been put forward by the FSU.
PN1956
And then we also wish to bring for consideration to the Commission the question of disruption of work, the interruption of work, by reference to the proposal suggested by the FSU, and balancing that against the reasonable accommodation that we say the bank has gone into evidence saying it is prepared to make. And whether or not that reasonable accommodation would be one which would satisfy the Commission that we suggest are excessive orders proposed by the FSU ought to be made in the context where there is another arrangement being proposed which might equally allow the FSU to exercise its rights under the Act, and which would also, we say, give consideration to what are the rights of employers in a context of the right of entry provisions under the Act.
PN1957
And we say that they aren't to be ignored and in my submission the approach of the Court and the Commission has not been to simply ignore interference with work. I will start first, Commissioner, with the Workplace Relations Act. The Commission will be aware that section 285B is a right of entry for a specific purpose. It has its history dating back to when rights of entry appeared in awards, legislation was introduced in 1973 in section 42A of the Conciliation and Arbitration Act giving rights of entry, the Industrial Relations Act 286.
PN1958
That section provided a right of entry to ensure observance of awards. It changed again in 1996, and what we have is a provision that provides a power effectively to a union to enter, provided one suspects a breach, 285B, it intends to come on to investigate that breach, and can do so in a number of ways. One is to inspect documents, one is to inspect work, material, machinery and appliances that might be relevant to the suspected breach, and 285B(3)(c) is the ability to come on and interview members of the union or people eligible to be members of the union.
PN1959
Now, that is not an unfettered right. It is a particular right afforded to the union. Now, that right is also limited further by section 285D and section 285E, which both operate to place obligations in 285D for permits, notice, and limit the right of access to work premises essentially, not residential premises. 285E places obligation that the person who is entering does not come on and when exercising powers under 285B or C intentionally hinder or obstruct an employer or an employee. Now, that it is not an open power has been recognised by Gray J in the pilots' case.
PN1960
I will direct your attention now, Commissioner, to page 367 of that decision. It is behind tab 8 - 7, I am sorry, and I am referring to the 1991 report, volume 28 FCR at page 360, and at page 367 his Honour Gray J in the third paragraph talks about - - -
PN1961
THE COMMISSIONER: I am sorry, what page? I can't see the - - -
PN1962
MR TUCK: It is 8 of 18, sorry.
PN1963
THE COMMISSIONER: 8 of 18. Thank you. Yes, thank you.
PN1964
MR TUCK: On which appears page 367 of the Federal Court Reports.
PN1965
THE COMMISSIONER: Yes.
PN1966
MR TUCK: And the paragraph commencing, "In my view", and I am reading from the next sentence:
PN1967
An officer of an organisation acting pursuant to section 286 of the Act does not have full and free access to buildings, places, books, documents or papers ...(reads)... or obstructing employees.
PN1968
And his Honour goes on in that paragraph, and the second last sentence starts:
PN1969
It is difficult to imagine that the Parliament in enacting section 286 intended to give an officer acting under it a right to search ...(reads)... would impose a heavy burden on employers.
PN1970
Now, Gray J is talking about the Industrial Relations Act and he is talking about the right to inspect, and he is making reference to an argument whereby if an employer doesn't produce documents, whether or not - and he is making the observation that that might ultimately be hindering or obstructing, because the nature of the power under section 286 isn't one where it is open-ended and the union can come on and simply go look wherever it likes to find those documents.
PN1971
It is a limited power. And it has been suggested to you by the FSU that these are powers which are without interference, and in my submission, Gray Js comment on section 286 is one that is apposite to the way in which the rights of interview must also be considered, that these are not unfettered powers, there is no express right to simply wander on to a premises and conduct interviews at will, in the same way there is no right to come on and search for documents and range over the premises. And at that point we say that is consistent with what Kiefel J says in an interlocutory decision, and that is behind tab - I think it is 3; tab 2, sorry, Commissioner.
PN1972
That is consistent with what Kiefel J in an interlocutory decision says is the appropriate approach to these provisions. Her Honour is considering section 285C, but she says this in the second paragraph:
PN1973
The orders sought might depend upon a view being taken as to the right of entry under section 285C of the Workplace Relations Act. For present purposes ...(reads)... the best meeting place.
PN1974
Now, Kiefel J reaches that view on an interlocutory hearing, and that is her preliminary view, but it is her preferred view, we say, of section 285C. And we say that that reasoning is also the way in which section 285B ought to be approached, that is, provided the purpose can be achieved by the access provided, then the purpose is met and there is no hindering or obstructing. Consistent with Gray J and consistent with Kiefel J, the union doesn't have the free right to roam premises under these provisions. It has the right to come on for a particular purpose, and if that right is respected and the purpose can be met by the arrangements put in place, then the purpose is met and there is no hindering or obstructing.
PN1975
And we say that is also consistent with the approach that Senior Deputy President Duncan took in the first case we refer to, the CPSU v Telstra, and behind tab 1 is print S1028. It is a decision of Senior President Duncan of 18 November 1999, and he sets out the factors that he considered in paragraph 30, and at paragraph 1 of paragraph 30 he says:
PN1976
Telstra offers alternative accommodation. It does not inhibit the actual discussions and the alternatives are not, on the evidence, worse except in respect of there being no attraction in them other than the presence of union officers.
PN1977
Now, in that case Senior Deputy President Duncan did not grant the CPSU access to the lunch room, and we say that is consistent with the approach of Kiefel J, and it is also consistent with the approach of Gray J. And I might be putting words into your mouth, Commissioner, but I also say it is consistent with what you say in the TCFUA v Leading Synthetics, which is a decision which is behind tab 6, it is print R5518. It is your decision of 3 June 1999. In paragraph 13 of that decision you say:
PN1978
Where the employer takes a contrary view on location for consultation then the question could be asked, is the action of the employer ...(reads)... concept of consultation nugatory?
PN1979
The interpretation I place on that, Commissioner, is that there is acknowledgment in that decision that it is not an unfettered right of access, that there are ultimately the same reasoning of Kiefel J exists:
PN1980
That provided the purpose can be met, provided that the concept of consultation, discussions, interview it not nugatory, then the purpose is met.
PN1981
And that is consistent with, we say, the understanding and the way in which the provisions ought to be approached which are set out by Kiefel J, and consistent with the Senior Deputy President, and consistent, we say, with your approach, that is, you look at whether or not the Act says that is being granted is one which would meet the purpose for which access is sought. The union would have it the other way. We just simply advise you that we are coming on, and you get out of the way.
PN1982
Now, they say even on one view, and I think what Mr Matson said this morning was that even their arrangements now, they are basically giving up things, they don't even have to go to the efforts that they say they are going to in their draft order. They are willing to make concessions. We approach the issue from the completely different view, and we say the approach that we urge on the Commission is consistent with the approach that the Federal Court has taken, and that is, you look at whether or not the access that is being granted or is being proffered meets the purpose for which access is sought.
PN1983
And if you take that as a starting point, Commissioner, you can then look at what is in fact sought by the FSU by reference to the evidence that is before the Commission in this proceeding, and consideration can also be given to the lack of evidence before the Commission as to what the FSU has done in respect of seeking access. Before I leave provisions I just want to briefly touch on the nature of interview.
PN1984
It was submitted by the FSU that the power under section 285B(3)(c) to interview is one which effectively gives it the right to - I suppose it is a compulsory obligation on employees who are members or eligible to be members to attend an interview with the FSU, that their rights to whether or not they wish to participate have been removed by the Act, and we say that is an extraordinary proposition and it is a very - it is an extraordinary proposition, because to not expressly set that out in the Act but urge upon the Commission that interpretation we say would lead to a conclusion which we say is untenable.
PN1985
The Act as one of its objects provides freedom of association to people in sections 3, freedom of association to be a member of the union or freedom of association to not be a member of the union. As a matter of interpretation of section 285B(3)(c), unless there is expressed there an obligation requiring employees to attend, we say that one cannot be read into those provisions, and the only proper basis upon which you can read section 285B(3)(c) is that it is subject to the willing participation of an employee, and that employees who don't wish to meet with representatives of the FSU cannot be compelled to meet with members of the FSU, and in my reading of the cases it has never been suggested otherwise.
PN1986
Reference was given to the power of occupation health and safety WorkCover inspectors, for example, and you were taken to section 39 of the Occupational Health and Safety Act. WorkCover inspectors do not have the power to require people to be interviewed. If any analogy is to be drawn there, and it is only in the broadest sense that se can draw analogies with the occupational health and safety legislation, but certainly there is no power under section 39 to require someone to attend for an interview, and WorkCover accepts that. It is subject to the common law rights of people to refuse to participate. Now, we have also - - -
PN1987
THE COMMISSIONER: But that is on self-incrimination, isn't it?
PN1988
MR TUCK: It is related to self-incrimination, but it has been raised, and it has been raised as - - -
PN1989
THE COMMISSIONER: Yes, I understand.
PN1990
MR TUCK: - - - well, we have similar powers, you read the Acts in the same way. Well, you don't. WorkCover inspectors don't have that power and in the same way we say union organisers don't have that power. They don't have that power for equally legitimate reasons that people don't have to participate in meetings with them if they choose not to. Ms Conroy cannot be forced to sit in a room with a representative of the FSU, regardless of Mr Matson's glib comment that these might - so what if she is uncomfortable? So what if she doesn't wish to participate? The Act is not, in our submission, to be read in that fashion.
[2.10pm]
PN1991
We have included definitions of "interview" and I won't dwell on these definitions, which I think appear behind tab 9, but "to have a personal meeting with: to meet together in person", which is the definition of the Oxford English Dictionary, we say is not consistent with the idea of being compulsorily required to be interviewed. Again we say the Macquarie Dictionary, to the extent that it does touch on this point, is not consistent with the interview being other than a willing meeting between participants.
PN1992
Now, the only other point which I wish to make about this at this time is that section 285C gives power to the union to come onto workplaces, and there are certain criteria in 285C, to hold discussions during meal breaks or other breaks. Those discussions, the word is used to discuss - sorry, to hold discussions, but the concept of "discuss" is one that is different than interviews. It is going to be difficult to sometimes discern between one or the other but interview in terms of as far as the FSU order seeks to have up to 15 people, we would say that that is clearly trespassing into the area of holding discussions and is not consistent with being an interview and is more commonly understood, at least in terms of how these provisions are interpreted, as being holding discussions.
PN1993
One reason for that might be that discussions are meant to take place during work breaks or meal time and that is consistent with large numbers of people. Sure, discussions can sometimes be one or two people turning up to such a union meeting but to hold what we would say is properly characterised as a discussion with 15 people is not consistent with, we say, the power under section 285B(c) - (3)(c), that is, to have an interview. Once you get multiple people there, we would say that is clearly effectively stopping work to hold discussions, and section 285C sets out when you can hold discussions and it says you can hold those discussions during meal breaks or other breaks.
PN1994
I will come back to the other issue that has been raised about - and these are allegations which are made without evidence about reprisals. I will come back to that. I want to now consider the application made by the FSU. The FSU say that they expect a breach of the Act. Now, much time was taken this morning setting out the nature of their obligations to articulate the particulars of the nature of the breach that they suspect. We have the benefit now of the Full Bench - last week's decision of where it sets the bar.
PN1995
The only point that we wish to make about this is not whether or not they suspect a breach but the way in which the way in which that breach has been articulated to ANZ has been very confusing. Ms Reid in her evidence at paragraph number 1158 puts it simply. Her answer to a question is:
PN1996
I just wanted an understanding of what the nature of the allegations were and at that stage, which was 25 June, we were completely baffled.
PN1997
And whilst the obligation that appears on a union in relation to saying it is coming on to investigate a suspected breach is not a high test, it needs to be determined objectively. I don't read the Full Bench as changing the approach of Gray J in the Thomas Borthwick case, that this is still the objective test, that whether or not the union, in fact, holds the requisite intention must be objectively determined. The evidence of ANZ is simply it was a very confusing time. The suspected breaches that were being put up were changing from time to time. At one point it was the RDO issue, and this is in relation to a request for an enormous amount of documents, and the evidence is, in that context, that the ANZ was baffled, effectively, as to what was the purpose for which the FSU sought this material.
PN1998
THE COMMISSIONER: Is that right or was it the case that the ANZ - and I don't say it with criticism - was of the view that it was entitled to more information, other than an allegation of a suspicion?
PN1999
MR TUCK: At the time, the view was taken that they were entitled to have an understanding so that they could objectively assess whether or not the FSU was, in fact, properly seeking to exercise its powers under those provisions.
PN2000
THE COMMISSIONER: Yes.
PN2001
MR TUCK: Now, how far you can go in terms of what information they are required to be provided with is now the subject of a Full Bench which says not a lot. But it still is an objective standard and even though the Full Bench has said you are not required to provide the particulars of the breach, there was certainly at that time a number of cases which suggested that you were - - -
PN2002
THE COMMISSIONER: Yes. No, I am not being critical but I wondered whether the - - -
PN2003
MR TUCK: And even now, Commissioner, even with the Full Bench, the employer still, in one sense, should be satisfied that the purpose for which access is being given is a proper one and it has to make that decision, albeit with less information than might have been considered required previous to last week, but still has to make that decision and if it is in a position where the FSU is saying we are coming on, effectively, in my submission, to ensure compliance with the awards. Although they say it is to ensure that there is no breaches of awards or agreements, then you are entitled to say, well, I am not sure that you are, in fact, coming on for the reason you are coming on.
PN2004
Now, that might be wrong but it is a legitimate position for the ANZ to have adopted at the time as to, well, we don't understand why you are coming on. You say it is because we suspect breaches but if it is the RDO, you know our position on the RDO. It is an interpretation question. If it is meal breaks, it is an interpretation question. The ANZ would say if it is any other issue of underpayment, tell us and we will rectify it. Now, in relation to the meal allowance we have the outrageous suggestion this morning that documents effectively have been altered.
PN2005
Now, allegations of that kind, as I understand Mr Matson was putting, without evidence is a practice even in the Commission shouldn't be condoned. It is not condoned in the courts. You can't make those allegations of that kind of behaviour unless you have called evidence and it shouldn't happen here. And it was made - - -
PN2006
THE COMMISSIONER: I am sorry, I don't recall it. Do you recall Mr Matson saying that the bank had - - -
PN2007
MR TUCK: Time sheets were being altered, that was what I understood - - -
PN2008
THE COMMISSIONER: Being altered to defeat the - - -
PN2009
MR TUCK: That was what I understood. Now - - -
PN2010
THE COMMISSIONER: If I had understood it that way, I certainly would have asked for something to back up such a serious allegation.
PN2011
MR TUCK: Yes. Now, the evidence in relation to - I don't want to dwell on this issue about suspected breach because it is not the gravamen of the argument of the ANZ. The suspected breach in terms of - and I just want to put some of the evidence before you and just highlight it. The evidence in relation to time sheets, for example, that Mr Matson said, well, you can't see whether or not higher duties are paid, Mr Smith gave evidence at paragraph number 1448 to 1450. That is the only evidence on that issue:
PN2012
Is it shown on their time records?---To my knowledge, yes.
PN2013
How is it displayed? How is it shown on the time records? What does it say?---It says, "For relief in higher duties."
PN2014
That is the evidence in relation to that issue. I don't dwell on it but I just want to highlight that the impression of Mr Matson's evidence was there was no - Mr Smith didn't know. He did. He gave an answer and it is clear. In relation to overtime, Mr Matson suggested that there was no proper arrangements in place for that. At paragraph number 1457 Mr Smith also gave evidence in relation to overtime.
PN2015
Now, as far as the issues raised by the FSU about suspected breaches go, we understand those allegations to effectively be matters of interpretation of agreements and the award, industrial instruments. And when the FSU has already filed Federal Court proceedings on an interpretation issue, effectively, when it is aware of the bank's position in relation to meal allowances and when they are paid, and the bank has made admissions as to the basis upon which it makes those payments or doesn't, again, the FSU may say we need all these documents and we need to interview everyone but, effectively, the issue between the parties is one of interpretation.
PN2016
And the conclusion that Ms Reid draws, and she says this in her evidence, is, well, my deductive reasoning is when you tell me that you have got this basketful of suspected breaches which you don't give any particulars of and even if you are not required to, you don't articulate what they might be in any precise way and when the issues that you then raise with us are matters of interpretation, which we are happy to write you letters and we do so, which set out the basis of difference between the parties, which we say should then give you the opportunity to run any proceedings that you choose, that the conclusion to be drawn is that the purpose for which the FSU is coming on is not to investigate any suspected breach but is for some other purpose.
PN2017
It might be, for example, recruitment. Mr Wilson in his evidence at paragraph number 538 talks about recruitment in the context of his most recent visits to Mortgages Operations and he talks about we were there for recruitment purposes in his answer and he then goes on in paragraph number 541 to say it was a good visit because he picked up some recruits. And this is in the context of his most recent attendances at Mortgages and the now view that that arrangement is one whereby the union wishes to interview by walking the floor in a manner which they used to do, effectively, to recruit, because the walking the floor arrangements which they make reference to seem to be practices that can only best be described as recruitment. They walk the floor to inform ANZ employees but effectively that conduct must be seen as, effectively, coming on, part of the reason which was to recruit.
PN2018
Now, the other issues that we say are relevant to whether or not the application should be granted is, first, the allegation that seems to permeate much of the FSU application, that is, the ANZ is a hostile workplace. There is no evidence of that put before the Commission. There is evidence to the contrary put up by ANZ which, effectively, goes unchallenged. There is noticeboards at ANZ. Ms Noye, at paragraph number 338, is aware of those noticeboards. I think her evidence is they are kept up to date.
PN2019
THE COMMISSIONER: Is that covered by any instrument - noticeboards - the Act or the agreements?
PN2020
MR TUCK: I don't know off the top of my head whether it is in the agreement. It might be. But even that is a reflection of an agreement to provide that access. It doesn't diminish the point, in my submission. It simply indicates that there is this arrangement. It is honoured. Ms Noye said she didn't have any difficulty displaying material. There is no evidence that they have difficulty displaying material. They have accessed the lunchrooms. Mr Wilson says at paragraph number 541 that he had a reasonably successful visit last time he was there; doesn't say it was hostile and I couldn't access anyone. He says it was pretty good; I got some recruits.
PN2021
Mr Smith gives evidence, which we say this is all unchallenged evidence, at paragraph number 1433. He is asked the question:
PN2022
You would be fairly unpopular with senior management if you allowed stop-work promotional material to be promulgated on the floor, wouldn't you?---No, I don't believe so.
PN2023
And his evidence in his statement supports the position that the union does have access to Mortgages, it does have noticeboards. Ms Conroy gives an account of the union being on site. She chooses not to want to access them. She doesn't like being approached by them. There is nothing particularly remarkable in that but it just indicates that there is always, and sometimes an unspoken, other side of the coin, that there are people who don't want to meet with the union, not because they are intimidated by ANZ but because they exercise their own free will, simply I don't want to, I don't feel the need to.
PN2024
And there should be nothing embarrassing or controversial about that proposition but it does exist and Ms Conroy is evidence of an example of someone who would prefer not to have to meet with the FSU representatives. That is her choice. She says in her evidence she doesn't feel that she has been forced into that position by management. There is no evidence that she gave under cross-examination that would lead to that conclusion.
PN2025
Mr Pentreath wasn't even called to be cross-examined. His evidence is also unchallenged. Both of those people, as employees, say that they would not feel that they would have a problem attending meetings with the FSU if they choose to. Mr Pentreath says when I heard they had donuts in, I certainly got up and I went and got one. It is not evidence consistent with the bald assertion, well, this is a hostile place where you have got these nasty e-mails floating around surreptitiously sending the message don't go meet with the union.
PN2026
It is all very well to make a submission along those lines. It is a whole different thing if you haven't got any evidence to support that position. It is really just speaking into thin air. It is just refusing to grapple with the evidence before the Commission in this proceeding, which is it is there and has to be addressed. That is the evidence which the Commission needs to make its decision in this case, not on the bald assertions of the FSU. It has to make it on the evidence, and they chose not to call any evidence along those lines. Now, Ms Reid also gave evidence in her statement which sets out procedures which have allowed the FSU access.
PN2027
Another issue that we say is relevant is this question of confidentiality. Now, I don't want to put it too highly but there is - what the FSU are saying is that, effectively, the bank's obligations of confidentiality and its obligations under the Privacy Act, its obligations to its customers really are secondary to its obligations to allow the FSU access to whichever area they wish. Now, we say that is the wrong approach to the provision in any event and it is not consistent with the Federal Court's approach, nor is it consistent with the Commission's approach to these provisions.
PN2028
And provided that the alternative arrangements can accommodate the request of the FSU to enter premises, then that really is the test which the Commission needs to consider. There is no evidence before the Commission that the FSU has, for example, chosen to access the premises under section 285C to discern whether anyone wishes to attend meetings by holding discussions during meal breaks. It has not done that. There is no evidence of the FSU putting on its noticeboards its own document about what the reasons are it wishes to come on and interview people.
PN2029
There is no evidence of its writing to its members and indicating why it wishes to interview people or setting up its own process to contact people and ask them whether they wish to be interviewed. There is no evidence of any of these alternative arrangements. There is simply in one sense a blind and determined, myopic view as, well, we have what we believe to be unfettered rights and we can access and exercise them as we choose. We say that is completely misunderstanding what the provisions of the Act actually provide. They don't provide that type of right and the Federal Court hasn't interpreted it that way and neither has the Commission.
PN2030
When you consider that approach and the bank then raises, well, there are problems with what you propose and one of the problems is that we have confidential client information in the place which you wish to access and which would be difficult not to disclose to you if you had access in that way and we have obligations under the Commonwealth Act which says that we are not to disclose information. Now, I have put into the folder of authorities a definition of "disclose". I think it is behind tab 10. Looking at definition 5 of the Oxford English Dictionary at page 738, definition 5 says disclose is:
PN2031
...to open up to the knowledge of others, to make openly known, reveal, declare...
PN2032
Over the page is the Macquarie Dictionary definition. Definition 1 is:
PN2033
...to cause to appear, allow to be seen, make known, reveal...
PN2034
Definition 2 is:
PN2035
...to uncover, lay open to view...
PN2036
Now, it is all very well for Matson to suggest that the Privacy Act is a soft touch piece of legislation, you can only get damages if you breach it, so, you know, what is the problem? But it is a bit more serious than that and the obligation on the bank is - the bank has adopted the National Privacy Principles, which are set out in schedule 3. It hasn't set up its own code, as I understand it; it has adopted the principles. It publishes that fact to its clients and has a policy to that fact, and you were taken to clause 2, use and disclosure, and you were taken to paragraphs (f), (g) and (h). But if you are looking at Mr Matson's hand-ups, I am not sure that they have some of the notes attached to that subclause and one of the notes, note 2, is that that subclause does not override any existing legal obligations not to disclose personal information. That is an obligation on the bank.
[2.34pm]
PN2037
Now, the bank has proposed an arrangement to allow access to its premises which gives recognition to those obligations. These are obligations that came in in December 2001. It might be convenient for the FSU to simply say, well, this is all industrially motivated and, you know, it was never a problem 20 years ago. The fact of the matter is that there is this Act. It does create obligations on organisations. The bank is subject to those obligations and the bank is obliged to take those obligations seriously, and whether or not that has an impact on the right of entry of the FSU really is beside the point. I mean, these are obligations that the bank has to meet.
PN2038
Now, it has obligations under the Act not to disclose. It is subject to section 52 in relation to making orders about compensation and damages, I mean, effectively penalties for disclosure. So it is not an answer to this issue to say, well, it is soft touch. The bank has to give proper consideration to these obligations and would have to do so if an order was made along the lines suggested by the FSU - - -
PN2039
THE COMMISSIONER: If Mr Matson is right in his interpretation of the certified agreement, is that a proper application or implementation of the obligations?
PN2040
MR TUCK: In my submission it doesn't - it is really the secondary step. Our obligation is not to disclose the third parties. That obligation, as he would read the agreement, is not - having had a disclosure as a third party, not to then disclose it again. It is a secondary step. The obligation on the bank is not to disclose.
PN2041
THE COMMISSIONER: But what do you say about your labour hire employees? You are permitting disclosure to employees of another person.
PN2042
MR TUCK: Well, under contractual arrangements which cover off those obligations.
PN2043
THE COMMISSIONER: Can't the same arrangements be made with the FSU?
PN2044
MR TUCK: I don't have the answer to that. I am not sure. There is a level of control, I suppose, in relation to the obligations that the ANZ has with its contractors.
PN2045
THE COMMISSIONER: Not too much, I trust.
PN2046
MR TUCK: But a level of control it wouldn't have with the FSU.
PN2047
THE COMMISSIONER: Yes.
PN2048
MR TUCK: And the obligation on the bank is to put in place mechanisms to avoid disclosure. It would be difficult to suggest that arrangements could be entered with the FSU and recognising, I suppose, the obligations that the bank has to its customers about if it is their information, it is not the bank's information, it is - it could be my information, it could be your information and may be information that I don't wish Mr Matson to see about me, even inadvertently. It might be a conversation that I don't wish Mr Matson to overhear, even though he chooses not to, he doesn't say that he wishes to hear the conversation or he doesn't want to see my documents. The reality of the situation - - -
PN2049
THE COMMISSIONER: I always ask them to turn off the recording that my call is monitored too for training purposes.
PN2050
MR TUCK: Not always these days. But it is not an answer, and in my submission the difficulty Ms Noye had and Mr Wilson had with this issue is that the mere reality of the situation is if you walk into a workplace where there is paper and computer screens and conversations going on, that information has been disclosed to you, on one view. If you try and avert your eyes and not listen to conversations, it doesn't necessarily answer the question of whether or not the bank has disclosed information to you and doesn't address the issue of whether you may inadvertently read something or see something you shouldn't or hear something that you would rather you didn't hear but you have heard.
PN2051
It is terribly artificial to say, well, I wait for conversations to end and it is revealing when Ms Noye says, well, I can tell because they say, you know, they are closing off the conversation, but in the same breath say I don't actually listen to conversations. I mean, the reality is Ms Noye must and she may like to draw this artificial distinction between I only listen to the end of the conversation when they say goodbye and I don't ever hear anything beforehand or I turn - close my ears to anything in that previous conversation, but it is highly artificial and it is unnecessary in the circumstance where there may well be a reasonable alternative arrangement which meets the purpose for which the FSU wishes to come on in the first place.
PN2052
There is no need to place an obligation on the bank, arguably, to remove all confidential information from its workplace while the FSU is there. There is no need for it not to take calls, for example. I am talking about the extreme positions, but there is no need for that, because there are alternatives. The FSU can hold discussions with employees to gauge their interest in attending interviews. The bank can make available a roster to roster people off. There is no need for people to be escorted by Ms Noye from their desk to a meeting room. They can just simply be rostered off.
PN2053
There is no evidence before the Commission to say it is a hostile environment or anyone would have any difficulty with that. The evidence before the Commission is to the opposite, that we would have no difficulty with that and in circumstances where the Commission has that evidence before it and no other evidence, we say that there is no reason then - no proper evidence on which the Commission can be moved to make orders suggested by the FSU.
PN2054
THE COMMISSIONER: What I am asked to do is to consider this proposition, aren't I, where a union organiser approaches somebody at their work station and says do you want to talk to me about an issue we are looking at, underpayment of overtime? The person either says yes or no. That is the sort of proposition they are inviting me to look at, as opposed to the proposition where the employee must seek leave of their place of work from their supervisor to talk to the union about alleged underpayment of overtime.
PN2055
MR TUCK: Not necessarily, because the FSU are also saying that arrangements could be made to roster people off, which would effectively - what the FSU, as I understand the essential points of their application, is - - -
PN2056
THE COMMISSIONER: No. I was looking at your proposition, that a person who wants to meet with the FSU would say to their supervisor, I want to be relieved of having to do work for a short period of time so that I can meet with the FSU to talk about underpayment of overtime.
PN2057
MR TUCK: We put that up as an alternative arrangement which the FSU has not considered. We don't say that is the arrangement that should be put in place. We put it up as, well, there is an arrangement that the Commission can consider if they are wishing to resolve the dispute; there is one way of doing it.
PN2058
THE COMMISSIONER: Is that the reasonable alternative that you put to me in relation to these matters?
PN2059
MR TUCK: Well, we do but we don't say it is the only option. There are other options other than approaching people at their work desk and the option by the FSU is not to simply say hello, I am from the FSU, I want to talk to you about underpayment; would you like to join me in the meeting room? Ms Noye was very woolly in her evidence about that. It may well be, because Mr Matson said we don't trust the ANZ to tell people what the nature of the allegations is, that they may have to go through that explanation, they would do it in the workplace. It would be uncontrolled.
PN2060
Now, I will come to the evidence about it would be also disruptive and that it may well be intentionally hindering people in their employment other than the people who are being interviewed and other than people who will ultimately be interviewed, and whether that actually expands the powers under - you know, is really urging on the Commission to make an order inconsistent with and expanding powers in respect of section 285E.
PN2061
THE COMMISSIONER: Are there other alternatives that are contained in your materials where you have provided an alternative so that the purpose can be achieved?
PN2062
MR TUCK: Well, there are options. I alluded to one before. Section 285C allows the union come on and hold discussions, could do that, gauge interest; people could then be rostered off. Another alternative would be - - -
PN2063
THE COMMISSIONER: What, the people who identified that they wanted to speak with the union could be rostered off?
PN2064
MR TUCK: Or the bank could simply roster everyone off to be interviewed and whoever turns up, turns up, and before doing that, the bank - the FSU could hold discussions with the members, saying this is why, this is what is going to happen, you are going to be rostered off, we would like you to be interviewed by us, the reason we want to do it is because, you know, we have this interest and we have these concerns and suspicions, so when you get the opportunity to be rostered off, we would like you to take that opportunity and come and meet with us, and whoever wants to go, goes.
PN2065
But you don't need, as the FSU put up one proposition, we need to come on and we need to stop people at their work and ask them whether or not they wish to be interviewed. We want to intentionally come on and hinder them in doing that. Now, they say that is not the interview. Well, if it is not the interview you are not allowed to do it under section 285E. You are not allowed to come on and intentionally hinder people. You are allowed to come on and interview people. And we say you are only allowed to come on and interview people who are willing to participate.
PN2066
So you can't then come on and just roam the workplace and stop people and ask them whether or not they are willing to do so because that would, on one view, intentionally hinder and obstruct their work and it would obstruct ANZ and it would obstruct the employees who are being asked and, arguably, it would create such a distraction, as Ms Conroy says, as to also distract her in the other cubicle. The purpose - I keep referring to Kiefel J, but the purpose can be met by other means, discussions held with employees, rostering off employees, and whoever turns up, turns up.
PN2067
The meeting rooms are going to be the same. Presumably these are going to be discussions in meeting rooms. The floor plans indicate meeting rooms are not next to the manager's office. They are sprinkled in different places throughout the floor. Mr Smith indicated what were the likely meeting rooms and they are not meeting rooms off in the corner where you have to walk past the manager's office. They are meeting rooms next to the work stations and presumably they are the same meeting rooms that the FSU intends to use, anyway.
PN2068
But the difference is they don't need to roam the floor and provided this alternative mechanism can be put in place - and there is no evidence to suggest it wouldn't work. The FSU simply say, well, we don't want to because we don't like it and they make assertions from the bar table, it would be hostile, this might happen, this might happen, there will be nasty e-mails. But the evidence - I keep referring to the evidence - before the Commission is not that. The evidence is quite different. The evidence is don't have a problem with attending meetings, don't feel intimidated. The union come on site from time to time. Occasionally, I go get a doughnut.
PN2069
Another person said I don't really like to meet with the union, Mr Smith saying, well, we make these arrangements, Mr Wilson saying, well, I had a good visit last time and yet, well, by the way, yes, well, that is the evidence, we don't really challenge that but it is a hostile environment, you ought to take, effectively, judicial notice of the fact that it is hostile because I say so. Now - - -
PN2070
THE COMMISSIONER: Do you see that last hypothetical position you have put as being available to me in these proceedings, namely, if the union held a meeting and then the bank took steps to systematically roster everybody off just for no purpose that they could have their time off and they could attend a meeting if they wanted to?
PN2071
MR TUCK: Well, it would be, as I understand - I am not being instructed here - is - - -
PN2072
THE COMMISSIONER: Yes, that is all right. I am happy for you to have a break and take instructions on that question if you like.
PN2073
MR TUCK: I will because I might put a clearer position to you.
PN2074
THE COMMISSIONER: Sure. It is just that when I was trying to look at the two positions, I could see one where the union said do you want to talk to me and then what they were putting against you was that somebody had to put their hand up to a manager to foreshadow that they were concerned about their overtime, whereas the discussion we have just had is neutral, if you like, where somebody gets rostered off, spend 10 minutes in the breakout room if you want to, but - - -
PN2075
MR TUCK: The only thing I would say about that before we break is that it is not unusual for the managers to be involved in rostering people off who want to meet with unions and it is a fairly typical approach in call centres or open work spaces where you are processing large volumes of work and there are time pressures.
PN2076
THE COMMISSIONER: Sure.
PN2077
MR TUCK: But rather than just have people wandering off and have your productivity collapse for the day, there might be another way of doing it.
PN2078
THE COMMISSIONER: I have raised it in the context of whether or not it is a neutral approach to overcome the - - -
PN2079
MR TUCK: Yes, I understand.
PN2080
THE COMMISSIONER: But I will adjourn for 10 minutes. The matter is adjourned briefly.
SHORT ADJOURNMENT [2.50pm]
RESUMED [3.02pm]
PN2081
THE COMMISSIONER: Yes, Mr Tuck.
PN2082
MR TUCK: Commissioner, the context in which alternatives are put up is - the primary basis of putting Mr Smith's evidence in was to indicate that there is an alternative arrangement which has been untested and it doesn't mean that that is the only option available. It just means that there is something else that has been untested. Now, what has been raised is, I suppose, another alternative, which has equally been untested and the bank's position on the union holding discussions under section 285C, it is really a matter for it. If it wants to do so, it can do so.
PN2083
If it feels the need to inform people about its reasons for wishing to be interviewed, it is surprising it hasn't done it already, but if it wishes to do so, it could do so and that certainly isn't a process that the bank can stop. It, equally, can use the noticeboards to get that information out or it can telephone people. It can do whatever it likes in terms of what is lawful in the way it communicates with its members. If it came to the bank and said, well, we are satisfied that we now know that we have communicated with our in whichever mechanism they choose and they say, well, we would like you to roster them off to be interviewed, the bank would do that.
PN2084
So I suppose the instructions I have received during the break in terms of articulating the bank's position, to assist the Commission, is that the bank would roster people off. Now, there would have to be some, I suppose, controls around that in terms of time and 15 minutes we would say was an appropriate amount of time which people could be rostered off. There are 400 employees down at Mortgages, I think. But the power to interview is related to interviewing people for the purposes of investigating suspected breach.
PN2085
Now, we are not absolutely clear what the suspected breaches are, if they are overtime or if it is higher duties allowance or meal allowance. It may well be that not every one of those 400 employees actually relates to those provisions in the award or industrial instrument - the agreement, so that you wouldn't be interviewing those people about that suspected breach because those provisions don't apply. So - - -
PN2086
THE COMMISSIONER: But you could identify the class of person.
PN2087
MR TUCK: The class of persons? We might need some assistance from the FSU about that. As we understand at the moment, it is overtime, higher duties and meal allowance, allegations that there are suspected breaches of those award and EBA provisions. Now, if that is the class of people, that means something to the bank and we could roster those people off in 15-minute blocks and do so by - roster them off by particular date because it might take a number of days to get through these people.
PN2088
There might be difficulties doing the days back to back to back for the bank in terms of basically taking up those meeting rooms for a whole week would create some difficulties for other parts of the business. It might be easier if they were staggered and not there every day or for a certain number of hours per day. That may also assist the FSU. I am not sure they have the resources to have someone sitting down there or three people sitting down there for a month.
PN2089
THE COMMISSIONER: Just so that I understand what you put in light of my question, I, like you, if the union decide to seek to hold discussions, that is a matter for it. The gravamen of my question was whether or not the bank would roster people off just generally for them to access the union if they so wished.
PN2090
MR TUCK: We would.
PN2091
THE COMMISSIONER: Yes. That is as I understood your answer.
PN2092
MR TUCK: And the basis - the limits on that, we would limit the class of people to those people who are covered by the provisions which the union suspects are being breached and we would limit the time to 15 minutes. That doesn't shut out the possibility that certain individuals may need a second interview or whatever but initially, for management of roster and what is what we say a fair thing, 15 minutes for each person.
PN2093
THE COMMISSIONER: Yes, I follow. Thank you.
PN2094
MR TUCK: That effectively, Commissioner, is another option which we say supports the position that the application ought to be dismissed in terms of the application of the FSU because there are alternatives which would give effect to the purpose. I keep coming back to the Federal Court because if you give effect to the purpose, and even in your own words, it is not rendered nugatory, the purpose is met and it is not an unfettered power.
PN2095
So if arrangements can be put in place that meet the purpose, there will be no breach of the Act, and we have gone through - I don't want to labour the point but the proposition put up by the FSU, it has difficulties which are unnecessary and in one view we say part of what is proposed would breach section 285E and, therefore, be beyond power, arguably, under section 285G, and that is approaching people who are not being interviewed and hindering and obstructing them in their work. And there is evidence of Ms Conroy about the interruption to the work. There is interruption - basically the kerfuffle that takes place when the union are on site and those are matters which we say the Commission can give consideration to.
PN2096
THE COMMISSIONER: See, if you pick up Mr Matson's points, it is hard to imagine a circumstance where you don't interrupt someone's work. Even by rostering them off, in one sense, you can say you have - - -
PN2097
MR TUCK: I understand that point but it is not put that this is the only option and even Gray J in the case you were taken to, the Curran v Thomas Borthwick case, the passage that was read to you does in one part say, well, if that was the only option, is to stand in the road to actually achieve the purpose of doing whatever you need to do driving along the highway, that is one thing but this is not the only option. This is not the only basis upon which you can meet the purpose. Now, yes, if people get rostered off they will stop work but that is one position.
PN2098
It would be less disruptive to work than the position put by the FSU, is that, well, we may disrupt a number of people who we aren't interviewing, for example. What we say about that is you don't have to. You don't have to, to exercise your rights, necessarily interfere with, for example, Ms Conroy's work in the cubicle behind you, who is going to be, on her evidence:
PN2099
I will be disrupted and distracted by that approach.
PN2100
And Ms Noye says that is not the interview. Well, on one view, it might be. But if you take her view that it is not - I mean, take Mr Matson, that is not the interview but is the explanation of why we wish to be interviewed, that is not even provided for by section 285C. You are not allowed to come on to basically hold an information session, even on an individual basis, with people. That is just not even a power that you have.
PN2101
[3.10pm]
PN2102
So it is difficult - I mean, we must acknowledge that there is a level of interruption and disruption of work and interviews. The Act specifically says it happens during work hours, and you can't do two things. Equally, I think Gray J acknowledges that there is a distinction between whether that is the only thing you can do, or whether there might be some other means. In the concept of what is reasonably able to be achieved to accommodate the purpose, then we really come back to what Kiefel J says, that is, provided the purpose can be met by the arrangements put in place, then there can be no breaches of the Act by the employer.
PN2103
The evidence of Ms Conroy is, I would be disruptive. She doesn't wish to participate in any interview, but she is going to be, for example, a person who would be distracted and she would stop work. Ms Noye then talks about they were just being escorted. That might have a flow on effect of other people's work if there is not any rostering of that. And it is an unnecessary interference with the business of ANZ and mortgages.
PN2104
On one view even on the employee level, it is an unnecessary interference with the, I suppose, the amenity of Ms Conroy, for example, and Mr Pentreath's working life if the people they are working with are simply getting up from their desk and walking away. It has a flow on effect. Mr Smith says that. It would be enormously disruptive to other people and their enjoyment of work for that day, if it is sprung upon them that their partners with whom they work are leaving their desks, and escorted by Ms Noye into meeting rooms. I mean, on one level, that is even a more provocative environment.
PN2105
The union says, well, we have no experience of disclosing confidential information or causing any disruption, but the correspondence of October 2001 - I don't want to dwell on it, but clearly there have been problems. Now, whether you attribute blame one way or the other, but certainly on the manager's account, she was assaulted by Mr Goodwin. I mean, that should not happen; it is unnecessary. Regardless of whether Mr Goodwin was affronted, the fact that he might be escorted into a meeting room doesn't give him licence to knock over a female manager.
PN2106
MR MATSON: Well, Commissioner - - -
PN2107
THE COMMISSIONER: Yes, that is denied. I know.
PN2108
MR MATSON: Well, I don't think the expression "knocked over" has actually ever been used. That is a fairly serious allegation that is new.
PN2109
MR TUCK: It might be paraphrasing, or drawing conclusions from the statement of the manager. I don't think it is a remarkable conclusion to draw. I mean, the statement is a fairly shocking example of, you know, how these things can go wrong. Ms Mahmoud, on Ms Reid's evidence, when she accessed - when arrangements were put in place for her access earlier this year, was simply to ignore them, and indicate to an employer that they had other arrangements in place. The union will come here and say, well, we have never had a problem accessing, but there is two examples.
PN2110
The meeting rooms are - the reasonable alternative, whether it be on the proposal of Mr Smith in paragraph 54 of his statement, or another proposal which means that the bank simply rosters people off, the meeting rooms are certainly - there is no question about them being in a place which is provocative, and Mr Smith gives evidence about where they are located at paragraph number 1401.
PN2111
Commissioner, they are my submissions.
PN2112
THE COMMISSIONER: Thank you very much, Mr Tuck. Yes, Mr Matson.
PN2113
MR MATSON: Commissioner, if I could have 10 minutes. My assistant is scribbling notes madly.
PN2114
THE COMMISSIONER: Yes, of course. I will resume in 10 minutes. The matter is adjourned briefly.
SHORT ADJOURNMENT [3.16pm]
RESUMED [3.33pm]
PN2115
THE COMMISSIONER: Yes, Mr Matson.
PN2116
MR MATSON: Thank you, Commissioner. Mr Tuck began his submissions by taking the Commission to three decisions, the first of which I believe was the Air Pilots case, which we also took you to, Commissioner. He referred you to that clause there that talks about ranging over the premises in search of documents, and that that could constitute hindrance and obstruction if the union goes far beyond what is necessary to enact a function.
PN2117
You can imagine the circumstances. It is a little different, a prospect of the union approaching people to be interviewed, and doing that in a rational way, rather than searching cupboards and desks, and so forth, in search of documents that presumably could be identified in one location. We would say that that is not authority for the proposition that this proposal in our draft order goes far beyond what is necessary.
PN2118
Then I think Mr Tuck took you to the decision of Kiefel J, and referred you to a text to the effect that so long as discussion was achieved the purpose was met. Largely we do not disagree with that observation, Commissioner. The question is whether the purpose is going to be met by the proposition that is being put up by ANZ.
PN2119
We are talking here about the power to interview any person who is affected by or having knowledge of reasonably suspected breaches. I think again it comes back to the confusion that ANZ seems to have with the powers of entry for discussion under 285C(1). If fact, Mr Tuck right at that point used the words, "wish to participate", which brings it back squarely to 285C(1) which uses those words, and those words are not present in 285B.
PN2120
We say there is no lack of evidence as to what the FSU has done and tried in the past. Admittedly it is rare that we have had to go to this extent in formal proceedings in relation to entry and interview, partly because it is not a difficulty that we have experienced to this extent before. We have never been refused records in such a blatant fashion as we have with ANZ here. And we have had reasonable access in the past to ANZ and to other sites in order to interview employees to establish the extent of suspected breaches.
PN2121
We have, however, had considerable experience of section 285C, entry for discussions and the like, whether under 285C or under parallel provisions in Enterprise Agreements. Evidence was given by both Mr Wilson and Ms Noye in relation to past practices, and largely to the unsuccessful results of those - of the kinds of propositions that ANZ have put in their various protocols. In fact, Mr Wilson spoke of the success in relation to an entry for recruitment when he got to speak to a few people, and got a couple of new members. That is a very different proposition to being able to interview all the people who might reasonably be affected by suspected breach.
PN2122
In fact, that evidence was also relevant to an implication that I think Mr Tuck was trying to draw about an ulterior motive. Clearly the entry on 8 July was directed at recruitment. That was not an entry that arose under the notification that is before you. The motivation for that entry was discussions and was recruitment. Mr Wilson gave evidence that he did get to speak to a few people and he considered it a good visit. That is an entirely separate matter to what is before you. Mr Tuck seemed to be drawing our comments in relation to what is required of employees, whether they are required to submit to interview, a little further than we had taken them.
PN2123
I don't think the construction that Mr Tuck attributed to us is one that we actually put but certainly we say that we must have the right to at least ask employees to be interviewed rather than allow the employer to filter those that we might be able to interview. In relation to the question of 15 people, that was inserted into the draft order as a matter of minimising disruption and we are certainly open to suggestions about other numbers. It is not a number that we have put in there in order to try and create some other type of environment than interview but, clearly, for both parties' parts it needs to be a practical solution that that will allow us to interview those employees without necessarily spending the rest of the year doing it and will allow those employees to get back to work in a reasonably short period of time.
PN2124
The ANZ continue to complain about the way in which the breach was articulated and Mr Tuck referred to the comments of Ms Reid about the nature of the allegations and her being completely baffled. But I repeat that the ANZ, at no stage, did anything to seek to clarify further what the breaches were until the matter came before yourself in conciliation at which stage they refused to provide any records for a number of reasons none of which were clarity of the breaches. That only arose after the proceedings began.
PN2125
In any case the original notice specified that there was an underpayment of wages, overtime and that, as we submitted earlier, fits neatly within the test in IES even if that test still is sustainable after the Full Bench decision last week. In relation to the evidence of Mr Smith about what was and wasn't contained in the time sheets it is clear from the response of Mr Smith - and we are talking here about the higher duties allowance - it is clear that his response was directed to what was on the wage slips. He is talking about a line - item 4, performance of higher duties, as opposed to what is on the time sheets.
PN2126
So it is still our submission that nothing is shown on the time sheets that allows us to determine whether people are or are not entitled to higher duties allowances. It is necessary to interview them to establish that. In relation to the issues interpretation of the award entitlements - and here we are talking about the employer keeps returning to the RDOs issue but relevantly before you it is in relation to meal allowance - the union don't have the opportunity to run the proceedings that they seek to run, and I am conscious that I have submitted this before but I am repeating it because it appears that Mr Tuck doesn't accept the position that we are putting.
PN2127
But the union should have the opportunity to run section 178 proceedings on those matters if it seeks to, that to limit us to interpretation by denying us access to interview or to records is not a reasonable use of those provisions. And we can only run section 178 proceedings with the evidence to substantiate the breach and that needs to show the amount of the breach that is being prosecuted. And the only way we can show the amount of the breach that is being prosecuted and the people that have suffered from that breach is to interview them and to get the time records and pay records to show whether the correct amounts have been paid.
PN2128
Going back briefly to the RDOs, that matter we could not have prosecuted in the way that we have - the matter that is in the Federal Court - without employees providing their own pay records. As it happens, from the sample and from the records that individual employees were able to get themselves we were able to put together the information for that prosecution but the denial of these types of records and access for interview will deny us the opportunity to run prosecutions on the other matter. The RDOs matter is one that could be prosecuted without the process of interview because it is ascertainable directly from the records themselves. In relation to the fact that we - - -
PN2129
THE COMMISSIONER: The matter that I am looking at, right of entry, is not related to RDOs, it is only related to - - -
PN2130
MR MATSON: The matter before you now is not related to RDOs in any way.
PN2131
THE COMMISSIONER: Only to meal money, is it, and higher duties?
PN2132
MR MATSON: Higher duties, meal money, overtime, underpayment and non-payment.
PN2133
THE COMMISSIONER: And why do you say that it is not sufficient for the admissions to be made by the employer?
PN2134
MR MATSON: In relation to the meal money matter?
PN2135
THE COMMISSIONER: Yes.
PN2136
MR MATSON: Because - for two reasons. One of them is that all that that would allow employees and the union to do is to take the interpretation matter before the Federal Court. It would not allow the union to take the matter, as we have in the RDOs case, for an underpayment which carries penalties and so forth and orders, enforceable orders, for payment. That is the first thing. The second thing is that in relation to meal allowance there are two categories. There are those that, on the employer's interpretation, would and would not be payable. So, for example, if the employer's interpretation was upheld on an interpretation matter before the Federal Court there would still be people who we say have not been paid because even on their interpretation they haven't been given the correct notice.
PN2137
THE COMMISSIONER: Yes, I follow.
PN2138
MR MATSON: In relation to evidence of hostility in the workplace we did seek inspections and the ANZ seemed to be at pains to restrict what could be said to the Commission - - -
PN2139
MR TUCK: Object to that. I mean, I don't raise now but it was clear the day before we started that we were happy to have an inspection.
PN2140
MR MATSON: Commissioner, there was considerable correspondence which is on the Commission's file which sought to restrict what the Commission could and couldn't do at those inspections and in the event we decided to proceed.
PN2141
THE COMMISSIONER: Well, it wasn't seeking to restrict what I could do.
PN2142
MR MATSON: Certainly, my interpretation, it looked that way. It certainly also sought to restrict - - -
PN2143
THE COMMISSIONER: Oh, I see. Are you saying it was to restrict who I could have with me and where?
PN2144
MR MATSON: Absolutely right and what they may or may not be able to do while they were there. In the event we did withdraw that application but that may have provided the evidence in the event that the employer seems to think is missing. But in any case it is very difficult to adduce that sort of evidence. We certainly don't want to expose individuals to the kind of potential recriminations that were raised by Commissioners Blair and O'Connor in the decisions to which the Commission has been referred.
PN2145
In any case, we would say that the e-mail of Tracey May at tab 12 gives a fair indication of the sorts of attitudes being expressed by employees that could give rise to that impression. We also say the Commission can rely on its own knowledge of the operation of call centres to understand, even if it is less than hostility, the reticence that perhaps employees might have about approaching the union directly in these sorts of circumstances.
PN2146
THE COMMISSIONER: I have always got to be careful when I do that because I have got to give people the opportunity to comment on what my perceptions may or may not be. I can't just suddenly land somebody with a perception that is deeply held and not told.
PN2147
MR TUCK: It is not a call centre anyway, your Honour.
PN2148
MR MATSON: We accept that, Commissioner, however I think that opportunity has been given over the extremely long process of these proceedings in conciliation and arbitration.
PN2149
THE COMMISSIONER: Yes.
PN2150
MR MATSON: In relation to the obligations of privacy, it was interesting that the ANZ didn't seek to take the Commission to any specific obligations under the Act. The obligation not to disclose, I think, is a misreading of that provision. There are, as the Commission noted, labour hire people there, cleaners and maintenance people, all matters which came out in evidence. I think the Commission made the observation that at one stage the ANZ claimed that the obligations were not delegable and then seemed to be happy about delegating them to some people and not to others.
PN2151
The Commission was taken to national privacy principle 2 by ANZ saying that they cannot disclose and then the definitions of disclose and so forth. I think, by any ordinary reading, 4.1 is the proper national privacy principle to apply in the circumstances because it is talking about unauthorised disclosure and unauthorised access and misuse. I don't think that ANZ are going to claim at any stage that they are authorising us to have access to the kinds of information they seem to be sensitive about. So it would appear that national privacy principle 4.1 is the appropriate one and the obligation, as we have said to the Commission, is that the employer take reasonable steps to prevent unauthorised access, disclosure and so forth.
PN2152
Just coming back briefly to the issue of the award interpretations. It does seem that the ANZ persists with the view that should they have a different interpretation of award entitlement they can effectively deny us access to powers under 285B by simply claiming that they do and that, obviously, would be a very destructive interpretation of that provision. Mr Tuck spent a fair amount of time referring to the evidence of Ms Conroy. The union says that little, if any, weight should be given to that evidence for the reasons already stated, particularly that whilst she claimed to be uncomfortable around union officials and can't accept pamphlets and so forth she had no hesitation in coming to this Commission to give evidence. And at point 15 of her statement claims that she would be quite comfortable to talk to the union in other circumstances.
PN2153
Mr Tuck tried to characterise the test in this matter to be whether what is offered accommodates the purpose and that is enough. To be correct the test as set out is whether there is a suspected breach and, if so, whether the information sought has sufficient connection. The union is not obliged to trial other fashions of entry or putting up notices and so forth. That is simply not required by the Act and simply not what 285B says and, we submit also, not what the Federal Court says except perhaps by the strange construction of the obiter comment of Kiefel J that Mr Tuck seemed to rely very heavily on.
PN2154
Mr Wilson and Ms Noye's evidence is that the protocol wouldn't satisfy the requirements of the Act or the needs of the union in investigating those breaches. There is persistent reference back to the notion of asking to be interviewed, or electing to be interviewed, or opting to be interviewed and our submission on that, Commissioner, is if it isn't already abundantly clear, is that the entirety of the ANZs submissions with regards to privacy, hindrance and obstruction and so forth rests on the presumption that the powers exercisable under 285B can be satisfied by another arrangement which relies on employees electing to act as opposed to the union taking the step of interviewing.
PN2155
And it is clear from the plain terms of the Act that the union has a power to interview rather than a power to sit around and wait for people to elect to be interviewed. Finally - - -
PN2156
THE COMMISSIONER: That is also your submission in relation to the alternatives that we were canvassing, is it?
PN2157
MR MATSON: In essence, Commissioner, yes, because Mr Tuck came back in response to your question about that with the words "wishing to participate". So employees wishing to participate could - - -
PN2158
THE COMMISSIONER: No, no, I heard that but then I thought I clarified that and I thought we got a general commitment to roster everybody off, of a class of person, rather than simply identifying those who wish to be rostered off.
PN2159
MR MATSON: I think that the response from Mr Tuck, certainly as I read it, was that they would roster everybody off and anybody who wished to participate would then attend and those who didn't would not.
PN2160
THE COMMISSIONER: Well, that is a consequence of people being rostered off for, say, 15 minutes and then somebody who wanted to come to the room to meet you would, somebody who didn't would go to a breakout area or have a cup of coffee.
PN2161
MR MATSON: I think at the very least the union needs to know at the end of the process whether it has been able to exercise its powers or not. The consequence of that would be that we wouldn't. I mean, at the end of that process we may have interviewed a number of people. We wouldn't know who we hadn't interviewed. We wouldn't know why we hadn't interviewed. I mean, it may well be that they are simply not in attendance there, you know, off sick, on annual leave or - we wouldn't know, for example, necessarily how many - what percentage of the total workforce we have got, so. Sorry, Commissioner.
PN2162
THE COMMISSIONER: That is all right.
PN2163
MR MATSON: Commissioner, I think, again, it is not abundantly clear to me precisely what the proposition was but there did seem to be an implication that there would need to be a preliminary stage of going back to 285C discussions and establishing - - -
PN2164
THE COMMISSIONER: That wasn't a prerequisite either. It was raised but it certainly wasn't what I was directing my question to. My question was simply to try and see whether or not there was another way of taking away the necessity for a person to put up their hand and say to their supervisor, can I go and see the union about X? And then, in discussion, Mr Tuck - or in his submissions, rather, Mr Tuck said there were other alternatives and touched upon the rostering. And so I invited some comments on that where the ANZ said, we will take this section, we will roster everybody off, you know, rotate 15 minutes. Nobody has to put up their hand to say they are going to see the union. It will happen. They will be relieved from work automatically. Then you get the election question whether somebody comes to see you or not.
PN2165
MR MATSON: Yes. I think, Commissioner, there is a difficulty for that, as I say, in the fact that we wouldn't know at the end of the process whether in fact that had even occurred. I mean, we wouldn't know who has made the election and why they have made the election unless they actually elected to come and see us.
PN2166
THE COMMISSIONER: Well, that is right. You would know who had made an election to come and see you because you would see them but you wouldn't know who you didn't see.
PN2167
MR MATSON: Absolutely right. And so it would create some difficulties for us quite aside from the fact that in the end in the event it is giving effect to a notion of wishing to participate which is verbiage which is installed in 285C but deliberately not installed in 285B. So whilst it would be rostered off and given the option, the option is it was one at their election.
PN2168
THE COMMISSIONER: You see this as an investigatory power to enable prosecutions and enforcement?
PN2169
MR MATSON: Is that what 285B is?
PN2170
THE COMMISSIONER: Yes.
PN2171
MR MATSON: That is certainly our view, absolutely. That the power to procure records and to interview employees is primarily a mechanism which is the first step in enforcement of awards and agreements. Obviously, that may well be resolved through conciliation in the Commission if we are optimistic or, you know, through any other process. It doesn't necessarily require a 178 proceeding but it would seem that that is probably more and more the case with this particular employer.
PN2172
The question of whether approaching employees at the work station is part of the interview or a matter incidental to it, I think, is entirely an irrelevant one. In fact, it was Mr Tuck who put in contentions that it was their view that it was part of the interview but whether it is part of the interview or a matter incidental and necessary to it, it is clearly a matter within jurisdiction, it is not the conferring of a power which is beyond outside - or inconsistent with the powers expressed to be able to be exercised under 285B.
PN2173
THE COMMISSIONER: Can I just ask you a question. You see, if you look at your 3.2. If an employer is prepared to concede 3.2(c) not as a specific proposition but as a general proposition. They are prepared to release, in an orderly way, employees to be interviewed. I have some doubts about the application of 3.2(b), namely, whether 15 persons is discussion or interview and they oppose 3.2(a). Now, 3.2(a), my understanding of the evidence, simply involves a question being put to an employee at a work station along the lines of: I am from the union. We are interviewing suspected breaches about the award in relation to overtime, do you want to talk to me?
PN2174
MR MATSON: Commissioner, I think all of the union's evidence was directed at precisely that kind of process. It is about only giving sufficient information for people to be able to indicate to us if they have an aversion to being interviewed or they are not affected.
PN2175
THE COMMISSIONER: Well, what would be the difference in having a notice on a noticeboard, for example - it is not a conclusion, I am putting a question to you - where you give that introductory advice to employees and then you have this rostered off arrangement? Where is the qualitative difference between information given in that particular way and somebody standing in front of a person at a work station saying: I am here to talk about suspected breaches of the award. If you want to talk to me I will be in the meeting room.
PN2176
MR MATSON: Commissioner, it is, in effect, something that the union does anyway. I mean, the union always, when it does visits, provides information in a written form. In these particular circumstances what we are trying to do is shortcut the need to interview absolutely everybody because we can't ascertain other than particular classes of employees who might specifically be exempted. For example, people above a certain level might not be entitled to overtime payments or, you know, leaving aside those sorts of categories the quickest way to identify whether people are affected or not is to give them a bit of information and ask them.
PN2177
And it may well be that we can narrow the scope of the people who need to be interviewed very quickly through that process. Obviously, if we put a notice on a board and wait for people to come to us we can't know that, we can't know whether we have interviewed people who are affected or not. We will only know the ones that we do interview.
PN2178
THE COMMISSIONER: Well, you won't know whether or not a person is affected if they decline to be interviewed.
PN2179
MR MATSON: No, that is right. And if they say to us, I flatly refuse to have any discussions with you, then obviously we are not going to - - -
PN2180
THE COMMISSIONER: And they may be affected but they say, no, I don't want to talk to you about it.
PN2181
MR MATSON: Absolutely. And obviously the union is not going to try and enforce, in that circumstance, their entitlements, though we, you know, obviously would have a concern about the fact that there is a breach going on. There is probably precious little that we could do about it.
PN2182
THE COMMISSIONER: But in circumstances where there is an election made at that point by the person, what do you say are the qualitative differences between that election being done at the workplace work station or being done by not attending an interview, having been rostered off?
PN2183
MR MATSON: It overcomes a number of problems both in terms of the quality and quantity of information but also - because, I think, when you say that the employer concedes 3.2(c) they do in terms of individuals making that arrangement, but what that is seeking to do is allow the FSU to make that arrangement which overcomes - and I believe you asked some questions of Mr Tuck about this earlier on - where an employee has to ask their superior for that arrangement to be made as opposed to the union approaching that person and making that arrangement for any individual or group of people.
PN2184
THE COMMISSIONER: I don't expect them to say, you can talk to the union or get doughnuts in the breakout area.
PN2185
MR MATSON: Commissioner, I am just trying to seek some clarification here about whether the ANZ is talking about releasing all staff or only those in the class of people who have suspected breaches or a knowledge of them.
PN2186
THE COMMISSIONER: Well, it would be relevant persons. Now, that might be something the subject of discussion but if somebody would never be involved in higher duties, then of course there is no reason why you would want to ask them and therefore there is no reason why they would want to, then, roster them off to have that discussion. So when we are talking about a class of person we are just talking about a person who would be likely to experience the breach that was suspected to have occurred, that is all. Or have information in relation to it.
PN2187
MR MATSON: Commissioner, I did want to briefly return to the implied criticism Mr Tuck made of Ms Mahmoud in March this year. It was suggested that Ms Mahmoud somehow tried to go around People Capital. I think the evidence is fairly clear before the Commission that there is at least, at the very least, a lack of clarity as to who has the call on making that decision and what the arrangements were at that time. There appear to be two different sets of rules. It is certainly the union's contention that an arrangement had been made and People Capital in the person of Kimberley Reid sought to impose some different rules and I think it was perfectly justifiable for Ms Mahmoud to at least question what Ms Reid was saying had been arranged when her view was that something very different had been arranged.
PN2188
Commissioner, I don't have anything further to submit except to stress that it is certainly our understanding of the ANZs submissions, almost in their entirety, that they rest on that presumption, that the powers exercisable can be satisfied by an arrangement which relies on employees electing to act as opposed to the effect being given to the power to interview.
PN2189
THE COMMISSIONER: Well, it wasn't so much that. I understood that their proposition is that if there are arrangements that can fulfil the purpose that is envisaged by the Act, then where there is a dispute that in the exercise of discretion I can consider whether or not those arrangements are appropriate to settle the dispute. I didn't want to verbal Mr Tuck but that is what I thought his submissions were.
PN2190
MR MATSON: That may well be right, Commissioner, but I think that the question comes down to whether the purpose is given effect by employees making that election.
PN2191
THE COMMISSIONER: Well, I understand the argument. All right.
PN2192
MR MATSON: That concludes our submissions, Commissioner.
PN2193
THE COMMISSIONER: Well, thank you both for your assistance. I will consider what has been put and reserve my decision. The matter is now adjourned.
ADJOURNED INDEFINITELY [4.05pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
CATHERINE NOYE, ON FORMER OATH PN1584
FURTHER EXAMINATION BY MR MATSON PN1584
FURTHER CROSS-EXAMINATION BY MR TUCK PN1592
WITNESS WITHDREW PN1612
DAVID EDWIN BERRY, SWORN PN1614
EXAMINATION-IN-CHIEF BY MR TUCK PN1614
EXHIBIT #ANZ4 STATEMENT OF DAVID EDWIN BERRY PN1622
CROSS-EXAMINATION BY MR MATSON PN1623
RE-EXAMINATION BY MR TUCK PN1658
WITNESS WITHDREW PN1663
EXHIBIT #FSU4 FOLDER OF MATERIALS PN1673
EXHIBIT #ANZ5 FOLDER OF MATERIALS PN1953
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