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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 4, 60-70 Elizabeth St SYDNEY NSW 2000
DX1344 Sydney Tel:(02) 9238-6500 Fax:(02) 9238-6533
TRANSCRIPT OF PROCEEDINGS
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
SENIOR DEPUTY PRESIDENT DUNCAN
AG2002/6818
APPLICATION FOR CERTIFICATION
OF AGREEMENT
Application under section 170LK of the Act
by Suncorp Metway Staff Pty Limited and GIO
Australia Limited for certification of the
Suncorp/GIOA General Insurance Business
Integration Agreement 2002
SYDNEY
9.40 AM, WEDNESDAY, 5 FEBRUARY 2003
Continued from 15.1.02
Hearing Continuing
PN20
THE SENIOR DEPUTY PRESIDENT: Are there any variations to appearances? There is not?
PN21
MR PENNING: No, your Honour.
PN22
THE SENIOR DEPUTY PRESIDENT: Very well. Mr Harmer.
PN23
MR HARMER: May it please the Commission. As the Commission may be aware, there has been an exchange of correspondence between the parties in recent days, concerning the timetable and directions that were issued by the Commission on 15 January 2003. By way of opening today, what the applicant employers would seek to do is to address the Commission on what usefully, in the circumstances of non-compliance as we see it with those directions, can be achieved today.
PN24
As we currently apprehended, your Honour, certainly it should be possible for the applicant employers to open their case in what would be, I guess, the normal presentation of material in support of certification. In our respectful submission, your Honour, it is then appropriate to, in light of the timetabling issues, entertain an application which we have foreshadowed in correspondence yesterday, to either completely remove, revoke, or appropriately limit the scope of the contentions against certification.
PN25
That application being decided upon yesterday in circumstances where the FSU, I am instructed, during the course of the day - or sorry, the three employees, through the FSU, advised that as of today, the first hearing day set down, there are outstanding additional statements which the FSU still seeks to file in this matter and as I understand it, further submissions in support of their contentions.
PN26
Now, that being the case, your Honour, in circumstances where, in our respectful submission, there was considerable interest in the timetabling of this matter and I believe, goodwill towards expedition on all sides, and certainly we are indebted to the Commission for making available the earliest possible dates and hence the split-up dates for the hearing.
PN27
But we find ourselves in a position where the extensive non-compliance with the directions by the union, has precluded the company finalising its materials - puts at waste - at least today's hearing, as we see it, and places under serious threat the second day of the hearing in circumstances where we were otherwise heading towards late February and March.
PN28
That does raise serious issues for the company, some of which we have attempted to address in a statement going to urgency which we have forwarded to the union overnight and which, if not already filed, I will seek leave to file in the Commission. Sir, if your Honour pleases, what I would seek to do, is to hand up a brief outline of opening submissions and against that context, address what we see as being the appropriate additional procedures to be followed today.
PN29
Perhaps having provided that foundation, the employees, through the FSU, will be in a position to respond on what they think can be usefully achieved today and if the Commission pleases, we could move from there.
PN30
THE SENIOR DEPUTY PRESIDENT: Very well. Do you wish to say anything at this stage, Mr Penning?
PN31
MR PENNING: Your Honour, I have prepared what is perhaps a brief submission in response to the application which is foreshadowed by Mr Harmer, and that was really just to give an outline to the Commission of the steps that have been taken in this matter to date and the relatively extensive evidence and outline of submissions which have been filed.
PN32
I am certainly in agreement with Mr Harmer that the matter can proceed today by way of the employer's outlining, or opening their case. In respect of the witnesses which we propose to call, your Honour, could I say these things? Five witness statements have been filed for employee, or worker witnesses, as I will generally refer to them. Two witness statements have been filed by Ms Hannan, dealing with relatively discreet areas of the case.
PN33
An expert witness statement or report of Richard Steyne, S-t-e-y-n-e, has been filed and an outline of submissions concerning the ballot process and bargaining in good faith, have also been filed and served. Perhaps, not that it is necessary to go into enormous detail, but could I say this, your Honour? Three of the worker witness statements were substantively filed and provided to my friend on 14 January.
PN34
They were the witness statements in the - for Linda Hawkes, Larry Stevens, and Michael Tsougranis. They were available - - -
PN35
THE SENIOR DEPUTY PRESIDENT: Look, I will interrupt you, Mr Penning, for this reason. I have got a general approach to the way this matter should proceed, and in the broadest possible outline, it is that the applicant organisations company employers, would make the application open, in effect, and in particular, if there is any additional evidence associated with the statutory declaration - I'm thinking of technical requirements, for example, then that be given. In other words, make the case that they wish to make, in the absence - before - - -
PN36
MR PENNING: Yes.
PN37
THE SENIOR DEPUTY PRESIDENT: - - - we deal with anything of yours. You would then go next and there would be a right of reply. That is the general outline of it all. What Mr Harmer has suggested, is broadly consistent with that, except at some point today, he wishes to make an application about directions and compliance with directions and matters of that kind.
PN38
MR PENNING: Yes.
PN39
THE SENIOR DEPUTY PRESIDENT: I think you would be in a better position, or a proper position, I should say, if you were to respond to that rather than anticipate - - -
PN40
MR PENNING: I understand what you are saying, your Honour, and I'm in the Commission's hands on that.
PN41
THE SENIOR DEPUTY PRESIDENT: Yes. Well, I think that is what I will do, Mr Penning. I will ask Mr Harmer to do his opening, for want of a better word.
PN42
MR PENNING: Yes.
PN43
THE SENIOR DEPUTY PRESIDENT: Once we have got that, we will take it - - -
PN44
MR PENNING: One step at a time.
PN45
THE SENIOR DEPUTY PRESIDENT: - - - one step at a time.
PN46
MR PENNING: Yes.
PN47
THE SENIOR DEPUTY PRESIDENT: Once we have got that, if Mr Harmer wants to go on and make his application, I would be sympathetic to hearing that at that stage, and it is at that point that you would be responding.
PN48
MR PENNING: Yes. Yes, your Honour. It would seem to be the common view, whatever else transpires, that there are not going to be any witnesses that are able to be called and cross-examined today, but - - -
PN49
THE SENIOR DEPUTY PRESIDENT: I see.
PN50
MR PENNING: Yes.
PN51
THE SENIOR DEPUTY PRESIDENT: That is common ground, is it?
PN52
MR HARMER: Save that we have not heard, your Honour, the position in relation to the statement of urgency we put on. I believe - - -
PN53
THE SENIOR DEPUTY PRESIDENT: No, well, I was associating that with what I have already slotted in - - -
PN54
MR HARMER: Yes, sorry, your Honour. But if, in terms of the - - -
PN55
THE SENIOR DEPUTY PRESIDENT: - - - in your application.
PN56
MR HARMER: - - - substantive claim in opposition and anything in reply, I think both legal representatives are in agreement that absent all materials being honoured is inappropriate to start putting witnesses in the box, if the Commission pleases.
PN57
THE SENIOR DEPUTY PRESIDENT: All right. Thank you. Well, that confirms me in my attitude I have expressed, Mr Penning.
PN58
MR PENNING: Yes, your Honour.
PN59
THE SENIOR DEPUTY PRESIDENT: So I will turn to Mr Harmer now and invite him to open.
PN60
MR PENNING: Yes, your Honour, yes.
PN61
THE SENIOR DEPUTY PRESIDENT: Very good.
PN62
PN63
MR HARMER: Thank you, your Honour. If the Commission pleases, perhaps if I move to the final page of that document, the initial pages, just being cover page and index? In essence, your Honour, by way of introduction, I have just set out there the process that we submit should be followed today, and given that I have already briefly canvassed that matter, I don't seek to further address process at this stage. Perhaps I will return to it later.
PN64
In essence, the idea is to go through this brief opening and then move to any timetabling or other issues that might be outstanding. I do raise as a preliminary issue, just the issue of exclusion of witnesses other than instructing officers. I merely raise that as a preliminary point, not that I have any apprehension that there is anyone who should not be there.
PN65
I just wanted to note that because I apprehend that during the course of the day, we will traverse some issues of controversy between the parties, your Honour. Your Honour, those - - -
PN66
THE SENIOR DEPUTY PRESIDENT: It does not arise at the present time?
PN67
MR HARMER: I'm assuming that there is no one present in that category. Thank you, your Honour, that is confirmed between the parties. I apologise for that. The next point I wanted to raise relates to the application itself which has been filed by the company - or the companies, together with the agreement conferred and between the companies and the employees pursuant to section 170LK of the Act and a statutory declaration of Mr Mark Blucher, all of which, it may be appropriate, if your Honour pleases, to formally tender and mark.
PN68
THE SENIOR DEPUTY PRESIDENT: Yes, it might - do you happen to have a spare copy of the statutory declaration? It would save me taking it off the file.
PN69
MR HARMER: I apologise. I am instructed we may not. I will just check that for you.
PN70
THE SENIOR DEPUTY PRESIDENT: If you don't, I will mark it in the file.
PN71
MR HARMER: Sorry about that, your Honour. I might just note while we have a brief search for that document, your Honour, that I am assuming that there may be some aspects of the statutory declaration which when we might reach other stages of the proceedings, may well be disputed and we certainly, for the purposes of these openings, have no difficulty with the employees, through the FSU, reserving their position on anything they might otherwise object to, if the Commission pleases.
PN72
THE SENIOR DEPUTY PRESIDENT: Yes, they might. While we are dealing with matters of detail, I know this is in compliance with the form - you are invited to say it in form R29, but I am not sure that I facilitated the making of this agreement.
PN73
MR HARMER: Yes. Look, I noticed that myself, your Honour.
PN74
THE SENIOR DEPUTY PRESIDENT: I would just like that recorded.
PN75
MR HARMER: You were certainly invited to be involved in conciliation around issues leading up to it, your Honour.
PN76
THE SENIOR DEPUTY PRESIDENT: Certainly.
PN77
MR HARMER: I acknowledge the point, your Honour makes, and I apologise for that inaccuracy. We do have one additional copy of that stat dec if that will assist?
PN78
THE SENIOR DEPUTY PRESIDENT: That would be helpful.
PN79
PN80
MR HARMER: Thank you, your Honour.
PN81
MR PENNING: Your Honour, in relation to the statutory declaration, as you foreshadowed, if I could have recorded that we reserve our position in relation to objections to the statutory declaration, bearing in mind that I understand that Mr Blucher will be called to give evidence.
PN82
THE SENIOR DEPUTY PRESIDENT: In addition to the statutory declaration, you mean.
PN83
MR HARMER: Your Honour, the way we currently propose to proceed is to have the stat dec of Mr Blucher incorporated within an extensive statement of Helen Davis, but who will verify all aspects of it and will be available to be cross-examined on the issues.
PN84
THE SENIOR DEPUTY PRESIDENT: That will be sufficient, will it not? I mean, I say that because the statutory declaration would be part of the documents that are filed with the statement that is to be prepared.
PN85
MR PENNING: Yes, yes, it - - -
PN86
THE SENIOR DEPUTY PRESIDENT: I would regard that as making it open to cross-examination.
PN87
MR PENNING: Yes, it probably would be sufficient, your Honour and I don't want to create problems where there - none need exist, but at this stage, we have not seen the statement of Helen Davis, so can't comment much further.
EXHIBIT #GIOA3 STATUTORY DECLARATION FILED IN SUPPORT OF THE APPLICATION ON FORM R30, STATUTORY DECLARATION BEING THAT OF MR MARK BLUCHER
PN88
MR HARMER: If it pleases the Commission. And your Honour, are we correct in assuming that exhibit GIOA2, the application incorporates the agreement that was filed with it?
PN89
THE SENIOR DEPUTY PRESIDENT: Well, that is right.
PN90
MR HARMER: Yes, thank you, your Honour. Your Honour, in respect of additional documentation, if I could just hand up a set of materials to assist in this opening and which again, without pre-empting any issues that the employees through the FSU may have, we certainly consent to total reservation, their rights on any of the material. We put together an exhibit of materials in a summary table addressing some of the requirements for certification.
PN91
THE SENIOR DEPUTY PRESIDENT: That does not look good, Mr Smith.
PN92
MR SMITH: It is late nights.
MFI #GIOA4I EXHIBIT BOOK PREPARED BY SUNCORP/GIO, CONTENTS OF WHICH ARE ELECTION EXHIBITS
PN93
THE SENIOR DEPUTY PRESIDENT: Yes.
PN94
MR HARMER: Yes, may it please the Commission. Your Honour, that particular exhibit book commences with a table of summary requirements for certification which I will move to briefly. It also includes a decision of the Commission and certain extracts from transcript which we respectfully submit, are relevant. At tab 3, some company extracts, giving company records of the two applicant companies.
PN95
At tab 5, a report on the outcome of the ballot, pursuant to which the agreement was formed under the Act. At tab 6, various documents relating to the conduct of electronic voting, reports into that. At tab 7, a document which was produced by GIO Australia Limited during the course of conciliation proceedings chaired by your Honour, and which were subsequently posted on the company's intranet site which we also respectfully submit, are relevant and which embodies certain undertakings which we - the company's indicated during the course of those conciliation proceedings we would provide to the Commission for the benefit of employees, during the course of any certification proceedings.
PN96
So your Honour, that briefly introduces the materials. Your Honour, notwithstanding that there is some bulk in this exhibit, I do not intend to address extensively on any particular issue unless, at this stage, required by the Commission. Obviously it may be necessary, particularly if we move to the next phase of the case and contentions, to address more extensively on this and other matters.
PN97
If the Commission pleases, if I could just perhaps move then to tab 1 of that set of exhibits which is a table which attempts to summarise requirements for certification under the Act, and if the Commission will bear with me, it briefly - for the convenience of the Commission and the parties, cross-refers requirements of the Act as we understand them, with material that we have put forward in support of satisfaction of those requirements.
PN98
Just commencing with the issue of the nature of the agreement and the requirement that the agreement relate to a single business in respect of a single employer which itself, is specified under 170LI of the Act. The definition provisions in section 170LB(2) of the Act, in our respectful submission, are relevant, and as the Commission will appreciate, there has been some controversy between the parties in the course of disputes preceding the making of this agreement concerning the operation of those two provisions.
PN99
In our respectful submission however, your Honour, the position we put forward in relation to the two companies and their status under the Act for purposes of Part VIB as a single employer, it relates to an area which was in effect, agreed between the FSU to the extent to that is relevant and the GIOA company, during the course of proceedings before the Commission as currently constituted.
PN100
To that end, your Honour, we note by way of mature and support, your Honour's decision of 1 July 2002 which is at tab 2 of the materials and your Honour might recall that there was, in that particular set of proceedings, consent around a set of facts that were provided to the Commission and which were elaborated upon in transcript, the reference to which we also included, and which specified at page 6 at point 19, that:
PN101
From implementation in January 2002 of transformation, the two business of Suncorp and GIOA commenced to operate as a single general insurance business under an integrated management structure.
PN102
There was an acknowledgment by the FSU in the context of that proceeding that that satisfied the requirements for a common enterprise for purposes of the Act, and your Honour might recall, there was some controversy as to whether the deeming effect of section 170LB(2)(a) operated later on, to deem - - -
PN103
THE SENIOR DEPUTY PRESIDENT: I remember the submissions.
PN104
MR HARMER: Yes, yes, your Honour. And if your Honour did in fact decide in this matter that that deeming impact was concerned with the actual making of agreements and would not break necessarily to deem someone who later came along to form a common enterprise to be party to the agreement. The only point we make, your Honour, is that we are here in different circumstances. There we were considering who might be deemed to be party to the AMP/GIO agreement in circumstances of a later formation of a common enterprise.
PN105
Here, your Honour, we are concerned with this integration agreement and circumstances where consistent with your Honour's finding, we are dealing with the actual making of agreements so to the inception, and we do have two employers which, on the evidence, we say - or at least the acknowledgment previously between the parties, and our consistent assertion in the statutory declaration, that the points we have noted continue to conduct a common enterprise, your Honour.
PN106
Your Honour, we also then in the alternative say, that if your Honour was troubled still - well, was - found difficulty in that contention, the alternative it falls under 170LB(2)(b) whereby related corporations can be, by election of the Commission and the parties, treated as a single employer, and we note that that was in fact, what your Honour - the Commission has currently constituted, found in the AMP/GIO agreement where six employers were treated as one.
PN107
We have given the transcript reference there where your Honour relied on that provision. Unless you require, your Honour, we won't go to that transcript, but just demonstrating a corresponding circumstance here. The entity that has acquired GIOA is Suncorp and the two entities are related and we have included, your Honour, the company extracts at tab 3, which again, without going to them unless your Honour requires, demonstrate that the ultimate holding company of each of the two entities is Suncorp Metway Limited.
PN108
Your Honour, in our respectful submission, under either of those provisions, the Commission would be capable of treating these two companies as a single employer and therefore, your Honour would not be troubled in those circumstances by any notion that the Commission has before it, notwithstanding a multiplicity of employers - or at least two - a multiple business agreement for purposes of 170LC of the Act.
PN109
The definitions in LB, in our respectful submission, avoid the necessity for this matter to have to go through the processes of a multiple business agreement. That ties in with the next point on page 2 of the table, your Honour, which brings in the requirements of section 170LI of the Act where again, by reference to the company extracts, we respectfully contend that there should be no issue that we do have constitutional incorporations dealing as a single employer in respect of a part of a single business.
PN110
The third point, your Honour, goes to valid majority, and noting the reservation of the rights of the three employees through the FSU, we acknowledge that this, in later stages of the matter, may be an area of contention, but for present purposes, your Honour, we note the provisions on the left hand side of the Act are required to be satisfied.
PN111
We rely on the outline of the voting process provided within the statutory declaration of Mark Blucher and also the report put together by Secure Vote which was the independent entity which conducted the ballot and that report, your Honour, appears at tab 5 of GIOA4I, and that report dated 19 December 2002, your Honour, you will see, summarises the voting process, annexes certain materials and reassurances concerning that process that were derived for purposes of a conciliation proceedings before your Honour.
PN112
At page 7, summarises - although there is more detailed analysis in one of the annexures - summarises the outcome of the electronic vote and it is there indicated in the box in the middle of the page, your Honour - sir, this is at tab 5, page 7 - that of the total number of 1307 ballots counted out of a possible 1815 voters, there was 850 in favour of the agreement and 457 against, giving a - in our respectful submission - valid majority clearly through that secret ballot in percentage terms of 65 per cent to roughly 35 per cent, so quite a significant margin in our respectful submission.
PN113
Without going through the report in detail at this stage, your Honour, we also respectfully submit that the appendages to the report and the extensive information contained within it, provide reassurance that the process - particularly the electronic process pursued, was one which meets all of the requirements of the Act for purposes of forming a valid majority.
PN114
Your Honour, we note in that regard, although again, unless the Commission so requires, I would not seek to go to it in detail at the moment, that we have at tab 6, included a number of reports which address the issue of electronic voting. You will see the first document there at tab 6 is "Evolution not revolution, electronic voting status report". Your Honour may have seen that.
PN115
Prior versions of certain of the documents that we have included here are included in the FSU's material - sorry, the employee's material through the FSU, addressing this issue of electronic voting, and as I say, your Honour, without going to it in extensive detail, we merely note that the reports we put forward trace the conduct of electronic voting internationally, and particularly some pilot studies in the United Kingdom.
PN116
The first status report of its kind indicating that applications to smaller controlled environments with electronic voting were the preferred starting points, and the second status report which we have included in our materials here, report successful electronic voting systems of a variety of kinds conducted in pilots in the United Kingdom.
PN117
Absent any concerns by the entities undertaking the report, and indicating that any caution that was touted in the first status report, which is, as I understand it, is put on by the employees for pervaded purposes, had been challenged and superseded by the technology that is currently available.
PN118
So your Honour, again, I don't go to it in detail, but we put it there, your Honour, by way of reassurance that not only does Secure Vote as a corporate entity purport that its system is sound and meets all the requirements of an appropriate secret ballot. There is available internationally, extensive reports based on pilot studies supporting that contention to the extent that it be an issue for the Commission at this stage.
PN119
Your Honour, then returning to the table at tab 1 of GIOA4I, that addresses valid majority issue for present purposes, in our respectful submission. The notice of intention to make the agreement, we have referred to documentation attached to the statutory declaration in relation to notices to employees, which there are two attached, and the relevant paragraphs of the statutory declaration that address those issues.
PN120
In terms of access to the agreement, we have done likewise. The content of the notice of intention, again, we have cross-referred to the stat dec. Likewise, the opportunity to meet and confer under LK(5). In terms of the explanation of the terms of the Act, there are quite extensive materials set out in the stat dec by way of the processes and information sessions pursued by the applicant companies.
PN121
Again, I don't seek to elaborate unless the Commission so requires, but I would note in this context, that certainly during the course of conciliation before the Commission, there was an issue concerning proper interpretation of the agreement and I do, consistent with what the companies indicated during those conciliation proceedings, seek to make undertakings to clarify that meaning, which I will come back to later, your Honour.
PN122
I note that in with the context of an explanation of terms and as your Honour will see, those issues of interpretation were not only clarified in those conciliation proceedings with your Honour's assistance, but were also then published to all employees concerned on the intranet site. Your Honour, variation issues in our respectful submission, are not pertinent.
PN123
Over the page, your Honour, the making of the application for certification. Your Honour, we maintain that the application is properly specified. The division of Part VIB under which the application is made, and that it was made within 21 days of the making of the agreement being a difference between about 18 December and 24 December.
PN124
I acknowledge again, your Honour, the point you make about the facilitation reference on the application and apologise for that. It was conciliation around the agreement, or issues of process surrounding the agreement as opposed to facilitation of its terms, although that was certainly debated before your Honour - if I can put it that way.
PN125
Your Honour, subject to that clarification, if I could move to the "No disadvantage test" and subsection (2) of section 170LT of the Act and Part VIE. Again, we have given the area of a statutory declaration of Mr Blucher in which this test is referred to.
PN126
Perhaps before moving to an application of the test itself, your Honour, we have headed up the submissions by reference not only to the certification proceedings, but also an application under section 170XF of the Act that was filed in the Commission earlier in the week, and I understand is formally listed today.
PN127
If I could just briefly say at point 11 on page 3, your Honour, of the table, we have put on the 170XF application, your Honour, in circumstances where, as your Honour is aware under Part VIE, there is a definition of a relevant award which is an award which in essence bound the relevant employers on the day immediately preceding the making of the agreement.
PN128
Obviously in relation to GIOA, there is no issue with that. It has always - well, there have been issues with that, if I put it that way, your Honour, and it there has obviously been contentions about its on-going applicability, but leave aside those contentions, it is no issue that certainly as a named employer on the face of the agreement - sorry.
PN129
In relation to the GIOA award 1991 which is now the GIO award 2002, there is no contention that GIOA is other than a named respondent to that award. Sorry, your Honour. I'm getting confused with awards and agreements. The application under 170XF therefore, is made solely by Suncorp Metway Staff Proprietary Limited.
PN130
The issue there, your Honour, and your Honour may again recall that this was a contention in the section 99 proceedings leading to your Honour's decision of 1 July 2002 and which is currently subject to appeal, whereby the FSU contended that there was a transfer of staff service company functions from GIOA Australia Limited to Suncorp Metway Staff Limited.
PN131
There is a service company elsewhere in the group and that contention was disputed by the company and there are a number of issues with the provisions of 170MB of the Act and its apparent value to address grouping issues and things of that nature, your Honour. Now, what we say in relation to that is, if the Commission so desires, it is entitled to attempt to make a ruling on the issue of transmission here.
PN132
It wasn't strictly necessary in the other proceedings, and as I say, was the subject of considerable debate and is now the subject of appeal. It occurs to us, your Honour, that in abundant caution, and without prejudice to the interests of any party on that transmission issue, it is available to the Commission to designate the GIO award which would be the very subject of that transmission argument, as in any event, the award against which the no disadvantage test should be assessed.
PN133
I guess the way we are putting it, your Honour, is that the obvious candidate for a relevant award, subject to the transmission issue, is the GIO award 2002. Given the controversy surrounding the transmission issue and in our respectful submission, the lack of utility for the respective parties and the Commission to enter into a detailed transmission argument, is part of this process.
PN134
We respectfully submit that it would be available to the Commission under the Act to designate in those circumstances, that very award as an appropriate award for the no disadvantage test and obviate the necessity to make a formal ruling on transmission in circumstances where it has been a considerable issue of controversy throughout this entire acquisition, if the Commission pleases.
PN135
So that is the reason why we say: look, in abundant caution, we have made that application and we are very much in the Commission's hands, but it seems a convenient way to progress in the circumstances. Your Honour, the next issues relates to genuine agreement, and again, for present purposes, we merely refer to the process pursued by the two companies with their employees as set out in the statutory declaration.
PN136
At point 13 the dispute settlement procedures again just referring to the relevant provision in the agreement and the paragraphs to the stat dec. At 14, the nominal expiry date requirement under subsection (10) of 170LT again, we have set out the relevant clause and the statutory declaration references.
PN137
Your Honour, that, in our respectful submission, is aimed to provide the Commission with a convenient cross-reference to the prima facie points of verification, satisfaction of the requirements for certification under the Act. The only other point which I seek to address at this time, does relate to those undertakings which were the subject of discussion in conciliation before your Honour.
PN138
To that end, your Honour, I refer to tab 7 of GIOA4I. Your Honour will see that there is set out there, a without prejudice document which was tabled during the course of proceedings and then by election of the company, published to all employees following those conciliation proceedings. These proceedings taking place on 29 November and proceeding before the Commission.
PN139
Your Honour will see at page 4 of - sorry, page 3, point 4, of that document, that there was some discussion between the parties about the accuracy of an FSU update which purported to put forward a particular interpretation of the agreement. At 4.2, Suncorp/GOA confirmed that:
PN140
The AMP/GIO conditions preserved within the business integration agreement are expressed as being in addition to the process as set out in schedule A which was a transitional clause between the two companies. All offers under schedule A are required, under the proposed business integration agreement, to contain the protections by way of retained AMP/GIO conditions which are set out in clause 6 of the proposed business integration agreement.
PN141
Your Honour will further observe that on page 4 at point 4.8 of that document, in order to avoid uncertainty, it said that:
PN142
The company is prepared to give undertakings to the Commission to the effect that proper interpretation of the agreement is as set out at 4.4 above.
PN143
Now, your Honour, the company did - or companies, during the course of those conciliation proceedings, although it was predominantly GIO involved, took the view that that interpretation was clear. That those preserved conditions could not merely be washed away, but indicated that the two companies would provide undertakings during the course of any certification proceedings, and accordingly, your Honour, I would seek to formally provide to the Commission, for purposes of certification and clarification of the agreement, undertakings adopting the interpretation set out in part 4 of that document, if the Commission pleases.
PN144
Now, your Honour, those undertakings relate to the operation of - sorry, that document was at tab 7 - - -
PN145
THE SENIOR DEPUTY PRESIDENT: It is there already?
PN146
MR HARMER: I'm sorry, your Honour. I was actually at tab 7 of the exhibit GIOA4I. I apologise for that. I may not have made that clear, your Honour.
PN147
THE SENIOR DEPUTY PRESIDENT: That lengthy document at the tab is - I don't see its title. It is a without prejudice document. The word, "undertaking" does not appear.
PN148
MR HARMER: Your Honour, sorry. I'm using that document to base the undertaking, your Honour. That is the actual document that was tabled in conciliation.
PN149
THE SENIOR DEPUTY PRESIDENT: Right.
PN150
MR HARMER: That is why it is marked, "Without prejudice". And your Honour, sorry - what I just pointed out was that at page 3, 4.2 - - -
PN151
THE SENIOR DEPUTY PRESIDENT: I see, yes, 4.2 is the - - -
PN152
MR HARMER: - - - the clarification is required and at 4.8 over the page, is the indication that undertakings would be provided and what I'm saying to your Honour, is that we do provide undertakings in a form set out in that document to fulfil that indication in conciliation and also to clarify the agreement. If the Commission believes that should be an alternative form, we are more than happy to do that, your Honour.
PN153
THE SENIOR DEPUTY PRESIDENT: Well, certainly, in the end, if the matter goes to a conclusion, the undertakings would need to be in a form that can be - - -
PN154
MR HARMER: Yes, included in the - - -
PN155
THE SENIOR DEPUTY PRESIDENT: - - - conveniently included in the certificate.
PN156
MR HARMER: I understand what you say, your Honour, thank you for that. Look, we will attend to that. Thank you, your Honour. Now, your Honour, just going to the application which is exhibit GIOA2 and to clause 5 of the agreement. There is a provision there relating to transition in employment from GIOA to Suncorp.
PN157
It is contended that the transition is to be built upon individual freedom of choice and at 5.3 it is indicated that:
PN158
During the course of this agreement, the employees prior to receiving any offer to move their employment from GIOA to Suncorp -
PN159
if they have not already done so -
PN160
will receive the benefits of the AMP/GIOA agreements which are incorporate in schedule B by reference.
PN161
They are the two existing AMP/GIO agreements in full, and at 5.4 which indicated that:
PN162
Post transition to Suncorp, the foundation falling upon it, will be the Suncorp certified agreement set out at schedule C, subject to the protections embodied in clause 6.
PN163
Which, your Honour will observe, is the specific set of preserved conditions which was the subject of the undertakings to which I have just taken the Commission - to clarify that they can't be washed away, if you like, in the respect pursuant to the undertakings of the companies. The other clause which at 5.4 is referred to is clause 8, which your Honour will observe, provides that:
PN164
Even when an employee transitions to Suncorp and gets the benefit of those two Suncorp agreements and the preserved conditions set out in clause 6, if they consider that they will suffer a reduction.
PN165
They can, even prior to considering the offer that has been put to them to transition, ask this Commission if they can't otherwise resolve the issue in consultation with the company and with the assistance of the union, under the disputes settlement provision, they can ask this Commission to recommend what would be the arrangement that would preclude any disadvantage, your Honour, not against the GIOA award, but against pre-existing GIO agreements.
PN166
So your Honour, in simple terms, the thrust of the agreement is to facilitate a single work force coming together over a period of time, with one employer. For those people still with GIOA, they are guaranteed all the benefits of existing GIOA awards and agreements pursuant to the provisions of the agreement. For those people when they go across to Suncorp, they have the existing Suncorp agreements.
PN167
They have the guaranteed or preserved conditions set out in clause 6 and to the extent they have any concern at all that they may be disadvantaged as against the GIOA existing certified agreements, your Honour, they can, either prior to, or subsequent to - it seems to make sense, prior to accepting or considering accepting an offer of employment with Suncorp, have discussions with the assistance of the union if they like, resolve any differences, or if not.
PN168
Ultimately the companies have committed in this agreement, to accept any recommendation from this Commission as to what would be necessary to ensure no disadvantage when compared overall, as against the GIOA two certified agreements. Now, your Honour, the reason for this, referring to that broad framework of the agreement is this: each of those GIO agreements, the restructuring agreement which addresses extensive change management and redundancy provisions, and the AMP/GIO enterprise agreement which is a more general conditions of employment, each was certificate by the Commission by reference to a no disadvantage test applied to the 1991 award.
PN169
That award has now been simplified and become the 2002 award, so it is a bit less extensive than it was when those agreements were certified. What this agreement does, is ensure that on a global basis, there is no prospect of disadvantage against those agreements which have already passed the test as against the underlying award, if the Commission pleases.
PN170
So whilst we acknowledge that whether as a relevant award, or a designated award, the point of reference for the no disadvantage test, has to be the GIO award, now, 2002. We say that it is axiomatic that the proper application of this agreement through the framework we have outlined, gives rise to a situation where there will be no disadvantage in relation to the existing GIO agreements but for purposes of the test under the Act, certainly, the GIO award by virtue of the logic that we have just referred to your Honour.
PN171
Now, again, your Honour may require that to be further teased out, but that is the essence of the submission, your Honour, and because this agreement incorporates by reference, prior to transition, the entirety of those two GIO agreements which states makes very clear that if one went through and compared this agreement on its bare face to the award, you would say: well, look, there are a lot of provisions that aeronaut specifically addressed.
PN172
What is addressed, is incorporation by reference of the entirety of those two existing certified agreements which were certified against that base and what is also incorporated, is the ability to ensure that in transitioning across with one's preserved conditions, there is no disadvantage as against those two agreements, again, which exceeded that base.
PN173
We say, your Honour, that on any analysis that would ensure, if necessary, through the auspices of this Commission - although in our respectful submission, would ensure in any event, that no employee involved will suffer any disadvantage and there are safeguards to ensure that. So your Honour, that is the issue of the no disadvantage test which I just wanted to come back to in light of those undertakings which, as I say, address the fact that those preserved conditions can not be subsequently washed away.
PN174
Your Honour, that concludes the issues that I wished to traverse through GIOA4I, and subject to the reservation of rights, we would rely on the materials in that exhibit, particularly the table that we put together along with the other materials that have already been filed and now tendered in support of certification in the normal course subject to clarification of the form of the undertakings to a more convenient form and any issues that the Commissioner may wish to raise, your Honour.
PN175
So your Honour, that is all that by way of opening we seek to say in relation to what would be the - as would respectfully put it, the normal process for certification. If the Commission pleases, if I could just now return to point 1 of that outline of submissions which sets out the suggested process which I referred to at the commencement of today's proceedings.
PN176
Your Honour, without dwelling on it, what we would seek to do is briefly review the directions that your Honour provided on 15 January and the issue of compliance. And your Honour, I don't seek to go to any length on this. Perhaps if I can state this, your Honour. There has been an exchange of correspondence between the FSU on behalf of the three employees and the companies overnight.
PN177
I think reflecting, certainly on the part of the companies, considerable concern that the timetable has not been complied with, and that the certification may be held up for a considerable period of time as a result. Now, having expressed those concerns and we do - we will come back to that issue, your Honour.
PN178
I just want to make it clear that there is no assertion that the three employees through the FSU has not put on a considerable amount of material, having made real attempts to put on a considerable amount of material in support of their contentions. The essence of the problem is, your Honour, that here we are at the first day of hearing and we still don't have all the statements and we still don't have submissions.
PN179
Any way we want to go back over the history over the last couple of weeks and exchange blows over what may or not be the assertive position, we find ourselves in an impossible position to progress the matter today and your Honour, that is serious for reasons that are set out in the statement that I will go to briefly.
PN180
Your Honour, for that reason, we did flag in correspondence yesterday, an application which in essence seeks to either strike out, "revoke intervention rights" or otherwise curtail the scope of the contentions put forward by the three employees who have been granted intervention. That is what we next seek to move to, your Honour, and after that, if there are any then remaining timetabling issues to be address, then it would probably appropriate to address them in light of the outcome from that particular application.
PN181
So your Honour, if it pleases, and subject to anything that the employees through the FSU may seek to put at this stage, we would seek to move to a separate stage of today's proceedings. Again, I say, as long as your Honour does not require us to address further on those formal issues relating to certification at this stage, we would seek to address on an application going to the current position of the three employees.
PN182
THE SENIOR DEPUTY PRESIDENT: Well, that certainly was my intention when I explored with you both, procedure for today. I will hear you on that. I don't have any questions arising from the technical opening. I think it would be appropriate to take a short adjournment before we start on the next stage.
PN183
MR HARMER: Yes, your Honour.
PN184
THE SENIOR DEPUTY PRESIDENT: I will adjourn for 10 minutes.
SHORT ADJOURNMENT [10.35am]
RESUMED [10.52am]
PN185
THE SENIOR DEPUTY PRESIDENT: Mr Harmer.
PN186
MR HARMER: Thank you, your Honour. If the Commission pleases, could I now hand up an outline of submissions in favour of what we referred to as a "strike out" or "revocation" of intervention application".
EXHIBIT #GIOA5 OUTLINE OF SUBMISSION IN FAVOUR OF STRIKE OUT OR REVOCATION OF INTERVENTION, FUTURE TIMETABLING ISSUES
PN187
MR HARMER: If it please the Commission. Your Honour, there are a number of minor typographical errors in this outline. Perhaps I will move to, as I go through the outline itself. But just note in the cover page there, "revocation" obviously with an "e".
PN188
Your Honour, leaving aside that, just going to the index which is the next page, I seek to briefly introduce the nature of the applications which we seek to make today. If we go briefly again to law addressing strike out applications and revocation with an "e", and briefly traverse some grounds in support. I apologise if there are some minor typographical errors that reflects the timing of putting together this document, your Honour.
PN189
Your Honour, the document in essence and the application indeed, has arisen from discussions that took place yesterday between the parties when my office was informed on behalf of the FSU and the employees granted leave to intervene that there was two additional witness statements still pending and additional submissions still pending which were initially proposed, I think, to be put on some time next week.
PN190
I think the currently anticipated date as discussed between the parties is that by the end of this week, there were circumstances where the day was the first day of hearing. Now, your Honour, against that background, if I can just move to the introduction on page 1? There was an exchange of correspondence which has been copied to the Commission.
PN191
If I can just again, reinforce that we don't seek to get into an extensive exchange of assertions on who has or has not done what on timetabling or compliance, but we do say that the end of that debate is, as currently advised, and subject to any correction by mr Penning, there are outstanding, two witness statements and additional submissions, in circumstances where your Honour's directions of 15 January.
PN192
Following discussions off record where, to my recollection, certainly, your Honour, there was, I believe, considerable consensus all round that there was a need to get this matter on as quickly as possible and as I have already mentioned, as I apprehended, some inconvenience suffered by the Commission in allocating whatever days were available in an obviously jammed diary and hence the truncated series of dates that we ended up with.
PN193
So in circumstances where there seems to have been acknowledgment of a need to expedite approval, if it is going to be approved - or certification of this agreement timetable set down, and directions given, which have been not complied with even to date.
PN194
Your Honour, and without going into the detail of that, and notwithstanding that we have put on a statement of urgency from Helen Davis, your Honour, in our respectful submission, it is obvious, given the strength of the "yes vote" that there are at least some employees with an interest in having this agreement certified. Indeed, it would appear a considerable number.
PN195
There are benefits on the face of the agreement, not only that for preserved conditions, but at clause 6.2, the issuance of shares and making of agreement to the employees and other things which, in our respectful submission, many employees would obviously be keen to trigger sooner rather than later.
PN196
Indeed, your Honour, in our respectful submission, the objects of the Act make it clear that these agreements, whenever possible, are to be certified as soon as possible. Indeed, the scheme of the Act requires that an application be put on within 21 days of the making of the agreement and looking at the objects of the Act that I referred to in our previous opening on the case, but didn't go to in detail, but will perhaps now, your Honour.
PN197
Section 170L of the Act sets out as an object of Part VIB:
PN198
The facilitation of the making and certifying the Commission, of agreements under the part.
PN199
And under 170LA, there is an indication that:
PN200
The Commission must, as far as practical, confirm its functions ...(reads)... of agreements.
PN201
Your Honour, in our respectful submission also of relevance to the application we make, are the general objects of the Act that are referred to in section 170LA and in particular section (3)(b) relating to:
PN202
Primary responsibility for determining matters affecting the relationship between employers and employees resting with those employer/employees at the workplace level, here in circumstances of the 170LK agreement.
PN203
Paragraph (c):
PN204
Enabling employees and employers to choose the most appropriate form of agreement in circumstances, again here in LK agreement.
PN205
Paragraph (f) issues going to:
PN206
Freedom of association and rights of employees and employers in that context.
PN207
We would say under the scheme of Act, specific rights for employees and employee organisations relevant to the issue of certification and intervention. Obviously, your Honour, also to be weighed up is section 3(e) which supports fair and effective agreement making, and we certainly don't attempt to other than have this agreement, as we see it, fairly and effectively made, fully tested by the Commission and absent any denial of natural justice to anyone.
PN208
Your Honour, that by way of broad indication of some relevant aspects of the Act. We set out in our correspondence of 4 February, having annexed an outline of your Honour's directions, and the issue of compliance with those directions, an indication that we sought to do three things today. The first being set out at 1.2(a), that the case in opposition to certification of the agreement as put forward on behalf of three employees by the FSU be struck out or that the leave to intervene that has been granted be revoked, or by way of more curtailed approach.
PN209
The scope of the case in opposition be reduced by either of those mechanisms, knocking out aspects of it, or replacing conditions on the intervention, to that which generally represents the view of three employees concerned as employees. In other words, your Honour, remove any attempt by the FSU under the guise of representing the employees as their agent to, in effect, just step in and run their own agenda.
PN210
(c), that the employees and the FSU, absent of approval of those two applications at least be precluded, given the extensive non compliance with the directions of 15 January and the importance of progressing this matter from putting on further material, they should at the very least, stand by the material they have been able to put on to this first date of hearing.
PN211
Your Honour, we have put forward a statement of urgency. It is our respectful submission however, your Honour, that given the background of the Commission in relation to these parties, this agreement and in terms of the agreement itself and the provisions of the Act, it is in our respectful submission, obvious that there is a need to fairly progress the hearing of this matter as soon as possible.
PN212
As I say, I don't understand there being any dissension from any quarter on that front when we timetabled the matter. To that end, your Honour, I do not at present, propose to press tender of that statement going to urgency. In our respectful submission, the implications for the employees and the businesses are obvious and the implications under the Act are obvious.
PN213
What we do seek to do is to put submissions forward based upon the Commission's knowledge of the circumstances rather than at this stage, I guess, diverting to potential cross-examination and purported evidence in response, etcetera. The parties, having had a fairly vigorous, I think, exchange of views on the issuing correspondence and to this point.
PN214
So your Honour, subject to the Commission's views, I will move on to point 2 in the outline which refers to strike out applications and I don't think is an area of great controversy that the Commission has from time to time, purported to exercise a right parallel to strike out as occurs in more formal Courts.
PN215
PN216
MR HARMER: May it please the Commission. Your Honour, under section 2 of the outline of submissions, we just briefly make the point, the Commission does have its power and has indeed previously purported to exercise a power of a strike out. At 2.4, we have just referred to a Clothing Trades Case which is set out at tab 1 of the authorities.
PN217
Your Honour, I don't seek to go to it in detail. It is a Full Bench of the Commission presided over by the then President, Maddern J, and your Honour will observe in the second line of the case summary at the top, reference to the employer application should have been struck out and there is discussion of that issue and a decision in transcript provided by the Full Bench on that issue within the body of the decision.
PN218
Certainly, your Honour, it is our respectful submission that the extent of procedural and substantive flexibility available to the Commission to deal with applications under the Act, makes it clear that it can, if it considers appropriate in particular circumstance, decide to move on and remove a particular application if circumstances warrant the exercise of that discretion under the relevant powers.
PN219
Your Honour, 2.2, we very briefly provide examples of where failure to comply with Commission directions have resulted in strike out. At tab 2, there is a decision of Commissioner Whelan where on the basis of failure to comply with directions, there is a strike out on the second page of that very brief decision, reference to the application being struck out for want of prosecution and failure to comply with the directions of the Commission.
PN220
On tab 3, we refer to the Porter case. Again, a decision by Commissioner Whelan where a similar course was discussed and an application to revoke in effect, to strike out, declined. Again, your Honour, not particularly controversial decision, and we don't put them forward by way of analogous facts. We simply make the point that grounds on which the Commission has in the past moved to strike out, have been substantial non compliance with directions.
PN221
It is a matter of going to discretion, but ultimately depends on the circumstances of each case. We clearly, your Honour, acknowledge that the exercise of a discretion must be weighed up against the considerable requirements under the Act and indeed the constitution to afford natural justice in the Commission's dealing with entities before it.
PN222
Your Honour, at 2.3, we again, by way of demonstration on grounds on which the Commission has considered the exercise of its discretion to strike out, refer to the DY-Mark Australia case. Again, a decision of the Full Bench of the Commission where the issue of strike out arise and perhaps just briefly, your Honour, on page 2 of that decision at the first complete paragraph at the top of the page, there is reference to at the commencement of the appeal proceedings, there was an application to strike out, or not further deal with the appeal.
PN223
It is the sort of application that is in some way, analogous to 111(1)(g), but can otherwise dealt with under section 111 of the Act, for example, 111(1)(t). Your Honour, the Full Bench in that matter, refused the application to strike out the appeal referred to in the first indented quote under that paragraph, but again, no issue as to the power to do it if the circumstances are appropriate.
PN224
The term, "strike out" utilised in circumstances which connote all that it does in the more formal Courts whereby as I have illustrated, amongst other reasons, power to comply with directions or lack of substance as asserted in that particular DY-Mark case behind the application, can result in a successful application for strike out.
PN225
So we take those authorities no further than that, just to reinforce our respectful submission that the Commission possess power and has discretion in these specific circumstances to strike out the case put forward by the interveners. At point 3, apart from the recurring theme of the "a" instead of "e" in revocation, your Honour, which I corrected, I might just note that at 1.2(c), your Honour, where I have dictated the word, "combined", it has come out as "confined". Again, which I apologise for. Sorry.
PN226
At heading 3 at the bottom of the page, your Honour, "Revocation of leave to intervene", again, we just make the point that the Commission can also, as an alternative way of dealing with the matter or in conjunction with a strike out, revoke leave to intervene which is as previously granted, under section 43, and at tab 5, I have included the Boral Roofing decision.
PN227
Again, Deputy President Hamilton of 4 September 2002, which did involve certification proceedings in relation to a 170LJ agreement, your Honour, and commencing at paragraph 3, there is reference to intervention in the hearing on behalf of two named employees of Boral by a Mr Irving, and at paragraph 4, it is indicated that he purported to act for the CFMEU. His application to intervene was made on behalf of the two Boral employees and he went on, your Honour, to make submissions going to a number of issues relating to duress and coercion.
PN228
Those issues not later being pressed, and the case put forward of duress and coercion was considerably curtailed. In those circumstances at paragraph 8, the Commission indicates that it was tempted to revoke the intervention rights that it had granted, having regards to the obligations under 170LT and the reservations that were placed on the intervention under 43(1).
PN229
Your Honour, again, not analogous set of facts, although we raise it in the context of the Commission based on the progress of certain proceedings and the way in which the parties conduct themselves having that clear power to revoke the granting of an intervention, or indeed, as we would see it, your Honour, to place conditions upon the on-going role of interveners in a particular proceeding.
PN230
Now, your Honour, at point 4 on page 2, having addressed those issues of power and discretion very briefly, we move on to the specific grounds in respect of which we rely in support of this application. What we say at 4.1, leaving aside that, for practical purposes, there has been a reservation of rights of the FSU - sorry, the three employees and the FSU as their agent in this matter. In the normal course, we say that there is a strong prima facie case in favour of certification.
PN231
Not merely because of the formal issues that we have previously addressed in the opening, your Honour, but we particularly refer in that context to the report of Secure Vote which was at tab 5 of the GIOA4I which was the formal report concerning the outcome of the ballot which did, your Honour, indicate at 65 per cent yes, and approximately 35 per cent no, a margin of approximately 393 votes, that being 850 to 457 and therefore a considerable swing, if I can use that phrase, required, to reverse that substantial - and as we would see it, valid majority, your Honour.
PN232
That, we say, is a very important consideration for the Commission required to assess under the provisions of this Act, the notion of a valid majority and the Commission, in our respectful submission, in considering this application, must keep in mind that report and the substantial majority recorded through that secret ballot process.
PN233
At 4.2, your Honour, we will make the point that given that it was a secret ballot - given the strong majority that came through from that report, the employees and the FSU carried a heavy onus to overturn that strong outcome in the ballot, and the other evidence that we pointed to this morning which is otherwise in favour, we would respectfully submit, for certification.
PN234
It is something that has been described as a substantial onus. We would say: look, it is again axiomatic. There is a prima facie case for certification and the intervening employees now seek to bring forward a case proposing that and they must carry an onus in bringing forward that case.
PN235
Now, your Honour, the onus has been described as one that requires a substantial case of unfairness or inequity to be put forward and by way of illustration of that point which we say otherwise follows as a matter of general principle, we refer at tab 6 of the set of authorities, to the decision in the Gough v Gilmour case of Mr Commissioner Lawson.
PN236
Again, this concerned section 111AA proceeding and a recommendation by consent in relation to a dispute over the outcome of the secret ballot result in the section 170LK agreement. So certainly, circumstances that are pertinent to this particular outcome. Your Honour, perhaps by way of convenience, without going again to the detail of those specific circumstances, given that each matter relies on its own facts, if I can just go to paragraph 31 - - -
PN237
THE SENIOR DEPUTY PRESIDENT: Of the decision?
PN238
MR HARMER: Of the decision, yes. Thank you, your Honour. Sorry.
PN239
THE SENIOR DEPUTY PRESIDENT: Yes.
PN240
MR HARMER: Where the Commissioner, having set out at paragraph 30 that there were certain questions relating to the form of the ballot paper and issues going to transparency which are also purported concerns in this matter, or at least, analogous. Indicates:
PN241
That finally, having regard to perceived deficiencies which might now believed to have existed in the ballot process, the outcome of the secret ballot should not be tampered with without a substantial case of unfairness or inequity being made out ...(reads)... case.
PN242
And in that particular matter, there was au fait to provide witness evidence. Obviously that is not the circumstance here, but we go to that matter as a demonstration. Again, we say notwithstanding that it was a 111AA proceeding which is important, given all the circumstances of consent arbitration and not the precise circumstances we have here.
PN243
We say, notwithstanding that, your Honour, the onus that must be borne to interfere with a substantial majority in a secret ballot, which on the face of it, satisfies requirements under the Act for a valid majority, is significant, in our respectful submission. It is against that background, your Honour, that at 4.3 we say one of the grounds in support of either striking out the position of the intervening employees or revoking their intervention or curtailing it at least, is the non-compliance with procedural directions.
PN244
Again, I don't seek to rely on it, but in our respectful submission, it is not in dispute that there has been non-compliance and that remains the case today. There are two outstanding statements, as I understand it, and submissions. The first day has been effectively lost other than for an opening and now this application, which would otherwise be unnecessary, and there is inevitable delay as a result, in circumstances where a vast majority of employees have supported progression of this agreement.
PN245
As the Commission is well aware from numerous matters before it, this process of integrating the two work forces with many disputes surrounding it, has been attempted by the two companies over a lengthy period of time with the co-operation of the employees concerned, and it is in our respectful submission in everyone's interest, to have this matter resolved as quickly as possible and as effectively as possible.
PN246
The non-compliance with the directions, given the circumstances in which those directions were set down on the last occasion, we say is extremely serious. That particularly being the case that at present, there is no end in sight and the FSU appears to have taken the view that on behalf of the employees, notwithstanding even indications in correspondences, we see it that: look, there is only one more to come, or things of that nature, that it can late in the day, well outside the scope of the directions, just keep on adding.
PN247
Your Honour, with respect, it must be called to a halt. There are important interests which far outweigh those of the interveners and with respect, those interveners should not be able to dictate prejudice, delay and lack of a certified agreement to the vast majority of people who have approved it, nor to the two companies who are attempting to integrate a very important business with benefits, as the company said, certainly for all concerned.
PN248
So as we have said, or as we have demonstrated, non-compliance with the Commission's directions is a basis for strike out. That is certainly what we have here in most serious circumstances, as we see it. At 4.4, your Honour, we move to the second ground of strike out that we identified earlier, that being that the application made by those progressing it, faced with the onus that we pointed to, which is substantial; faced with the extensive majority that emerged from the secret ballot, the case, in our respectful submission, just does not - and indeed, is not capable of materially impacting upon that significant majority.
PN249
Now, to aid that assertion, your Honour, and for the purposes of a strike out application, notwithstanding that the material has not been as yet tendered or tested, or indeed responded to by the companies, we have put together a table of the current statements and submissions that the FSU has put forward in support of its position.
PN250
What we advance, with respect, your Honour, is that the material advanced to date by the three employees through their agent, the FSU, does not raise sufficient in material issues, to warrant the Commission further dealing with the matter. So if I could just circulate copies of that table, if the Commission pleases?
PN251
THE SENIOR DEPUTY PRESIDENT: I will mark the - - -
PN252
MR PENNING: Your Honour, I would foreshadow without having looked at this, opposition to this - to the tender of this document. The opposition is principally on the basis that it is really jumping quite a long way ahead of where we can possibly be at if it seeks to refer to various numbered paragraphs of the quite extensive witness statements that have been filed.
PN253
Now, of course, those documents have been filed, they are not as yet tendered into evidence. They
PN254
have not been - the statements have not been sworn; they have not been tested; there has not been any further evidence-in-chief, or cross-examination, or anything else done in relation to those statements.
PN255
So the only way that the Commission could, in my respectful submission, take any account of that document, would in effect, be by a detailed examination of the particular paragraphs of the statements. Now, that simply isn't possible until the statements have been tendered formally through the witnesses.
PN256
It would inevitably be an enormously time consuming process because it would have to involve submissions about what my friend would say, are the contentions arising from the various paragraphs of the statements. So it is a most unusual course of events and proposal to progress the matter.
PN257
THE SENIOR DEPUTY PRESIDENT: Yes. I think the only way I can accept the tender, Mr Harmer, is if it is on the basis that for the purposes of the argument, the contentions of the interveners are accurate.
PN258
MR HARMER: Yes, your Honour. Look, I haven't formally sought to tender the document. To my way of thinking, it is a document in support of submissions. It is really purporting to summarise what appears from the face of file documents, and I'm happy to tender it if that is the appropriate course. But if I can just say this, your Honour?
PN259
If one listens to the issues that Mr Penning takes with the document, he relates to the fact that, all right, the statements have been filed; there is nothing in response to them by the company; they have not been tested in cross. In essence, if anything, it is all downhill from there for the union.
PN260
Your Honour, what we say is, that by definition of strike out application, as is the case with many interlocutory proceedings, say before the - - -
PN261
THE SENIOR DEPUTY PRESIDENT: Yes, I'm quite conscious of that.
PN262
MR HARMER: Yes, your Honour. It would be to take at its highest, the current material of the FSU, notwithstanding that all right, we reserve our rights and they are not formally on. But what we have attempted to do, is say: well, look, here by way of summary, is - if we just accept it all as being absolute gospel, if you can excuse that phrase, at this point in time; take it at its highest.
PN263
We say, even then, untested; unknocked around, it does not get to within cooee of the appropriate level of materiality and that, we say, is the appropriate approach to adopt in a strike out application. Indeed, it would be impossible to otherwise fairly do it.
PN264
So in our respectful submission, your Honour, it matters not whether this document is formally tendered or not. It is in support of submissions. Certainly, the approach we take, as your Honour has suggested, is to - for the purposes of these arguments, accept the contentions at their highest.
PN265
THE SENIOR DEPUTY PRESIDENT: Well, in any interlocutory proceeding, that would be the basis on which the matter was heard.
PN266
MR HARMER: Absolutely, your Honour. So that is the basis on which we put it forward.
PN267
THE SENIOR DEPUTY PRESIDENT: It is for that reason, that I would - and certainly since the matter has been disputed, I would prefer to mark it - - -
PN268
MR HARMER: Yes, your Honour.
PN269
THE SENIOR DEPUTY PRESIDENT: - - - rather than simply have it in a state that is not clear what I've done about the matter.
PN270
MR HARMER: Yes, yes, look, thank you, your Honour.
PN271
THE SENIOR DEPUTY PRESIDENT: So for that purpose, I will mark it and its acceptance is subject to the observations I have just made.
MFI #GIOA7I SUMMARY OF THE CONTENTIONS OF THE EMPLOYEES, FSU AS AT 04/02/2003
PN272
MR HARMER: Thank you, your Honour. Now, accepting those reservations on the document - - -
PN273
MR PENNING: Sorry, your Honour, I missed that. Did you say that it was marked, was it, as - for information FI?
PN274
THE SENIOR DEPUTY PRESIDENT: No, I didn't.
PN275
MR PENNING: No.
PN276
THE SENIOR DEPUTY PRESIDENT: I've marked it as a tender.
PN277
MR PENNING: Have you? I thought it was intended - - -
PN278
THE SENIOR DEPUTY PRESIDENT: It is - - -
PN279
MR PENNING: - - - it would be marked as an exhibit - as an MFI.
PN280
THE SENIOR DEPUTY PRESIDENT: Well, I'm prepared to do that. The purpose is that I want it plain that I have accepted it for the purposes of my looking at it.
PN281
MR PENNING: Yes. I understand the point you are making - - -
PN282
THE SENIOR DEPUTY PRESIDENT: For that reason I was being severe on myself in saying I will accept it as a tender.
PN283
MR PENNING: Well, could - - -
PN284
THE SENIOR DEPUTY PRESIDENT: Mr Harmer, does not quite press for that.
PN285
MR PENNING: No. Could I in the alternative, ask that it be as for identification document?
PN286
THE SENIOR DEPUTY PRESIDENT: Yes, you can, and you will be successful in your request.
PN287
MR PENNING: Thank you.
PN288
MR HARMER: May it please the Commission. Your Honour, noting the reservations that the Commission has properly pointed out on this document and acknowledging that it is merely the companies' attempt to summarise and to derive from the existing materials, the contentions, in our respectful submission, the material falls into four broad categories.
PN289
The first being alleged, Suncorp/GIOA impact on the way people voted and the lack of good faith in the bargaining process as asserted as we understand it. The second, and the predominant category, in our respectful submission, is alleged issues concerning the process and integrity of the ballot. The third, are essentially what we would describe as industrial issues between the FSU and Suncorp/GIOA.
PN290
The fourth category, D, is the no disadvantage test. Your Honour, what we have attempted is to, under each of those headings, summarise and cross-reference to both the statements and submissions put on to date by the three employees through the FSU as their agent. What we understand to be contended, or the purpose behind the material.
PN291
If the Commission pleases, having provided the material and indicated where the relevant evidence leads, I will come back to that document later in support of the application. Your Honour, I was at 4.4 of the outline on page 2 where, having provided that summary table of the contentions, I seek to make some brief observations concerning relevant principles.
PN292
Your Honour, we, with respect, strongly content that the relevant case law in this area is not that which, as we apprehended, the FSU in its outline of submissions to date as relied upon which is predominantly case law specifically applicable to elections within registered organisations and which obviously, has a specific statutory context, a context of registered rules and a context of irregularities as defined under the Act.
PN293
What we say, your Honour, is that the real test is to be found, certainly within cases relevant to those elections by way of broad principle, but its application for purposes of this matter is to be found in the Commission's decisions dealing with certification of agreements.
PN294
So having made that preliminary observation, your Honour, we do acknowledge that from our point of view, the test has to be that in challenging the outcome of this secret ballot, there must, in relation to the substantial onus and the requirement for clear indications of substantial unfairness or inequity, be material suggesting a real possibility that the outcome of the ballot which was a considerable majority, could be different in terms of being overturned, that is, there being other than a valid majority.
PN295
A mere theoretical possibility based on the material is not sufficient. Your Honour, in that regard, we have gone to certain case law dealing with the issue of elections in another context, that being the union elections and at tab 7, there is a decision there of the Federal Court of Australia, where at page 6 of the decision, the Federal Court notes at paragraph 21, relying on the Vehicle Builder's case, the test stated by Toohey J that:
PN296
It must be a real and not merely theoretical possibility.
PN297
And it is noted in the next paragraph that that test was adopted in other cases. The next decision at tab 8, is merely an example of application of that particular test, if you like, wherein re Jacomb, Weinberg J in the Federal Court again, this time at paragraph 54, page 10 of the print, refers to the fact that:
PN298
The result of the election would not, as a matter of practical reality have been affected by the, in that instance, irregularity.
PN299
I emphasise, your Honour, that the notion of irregularity is defined under the Act and has that specific context of registered organisations and rules. But as we see it, the test that has to be applied here, is similar to the extent that there is required, a real possibility of a different outcome and not a theoretical possibility.
PN300
Now, having said that, your Honour, we next say that the requirement of a Commission under the Act, is to be satisfied that there exists a valid majority as addressed in section 170LE of the Act. We note that the Commission has itself, observed that it does not sit as a Court of Disputed Returns here. It is not a matter of sifting through the ballot process and attempting to ascertain whether this one went that way or the other one went the other.
PN301
At tab 9, there is an observation by a Commissioner Gay, in a decision in 1998 involving the Greyhound Pioneer Australia certified agreement, that being Division 2 agreement with employees, whereby the Commission, this time on page 4, refers to alleged discrepancy between 566 names on the roll and 552 ballot papers mailed. In the paragraph at about point 5 on the page, expressed the view that the ballot was unsound:
PN302
The Commission is not sitting as a Court of Disputed Returns or conducting an inquiry into the conduct of an election, rather, the task of the Commission is to assess whether a valid majority of persons ...(reads)... agreement or not.
PN303
In our respectful submission, the test is satisfaction under the broad requirements of section 170LE and that, in our respectful submission, is a broad test, your Honour. Your Honour, we then say that the requirement for the genuine consent in the ballot majority is that the consent of the employees must be informed and there must be an absence of coercion and thereafter, there is another typographical error - I apologise for, your Honour - it is the Toys 'R Us case, which is referred to in the Coles Supermarkets case which is at - - -
PN304
THE SENIOR DEPUTY PRESIDENT: I must confess, I would never have picked that up.
PN305
MR HARMER: Sorry. Again, the terrors of dictaphones and sloppy dictators, your Honour. Your Honour, if I can just perhaps go to tab 11 of the materials and that being the Coles Supermarkets Australia agreement case. Again, perhaps moving to page 4 of that particular decision of the ten page print, where there is reference about again point 5 on the page, there is a paragraph commencing:
PN306
Generally prove and not defined in the legislation ...(reads)... 1988.
PN307
And then there is some observations and reference to the decision of Toys 'R Us about three lines up from the bottom of that paragraph where the Commission decided that:
PN308
The requirement that a majority of employees genuinely agreed to be bound implies that the consent of the employees was formed and there was an absence of coercion.
PN309
Now, your Honour, we say that is the broad nature of the test. Certainly, genuine consent. Valid majority, as we know, is 50 per cent plus one, in effect. Here we have 65 per cent versus 35 per cent, a substantial valid majority in our respectful submission, and we have to review the onus on the FSU - sorry, the employees, through their agent, the FSU, to demonstrate that there is a real possibility that that alternative outcome to the ballot may have emerged, not a mere theoretical possibility.
PN310
It is in that context, your Honour, that I seek to return to the document marked GIOA7I which is the summary table and your Honour, if one looks at the contentions as we apprehend them, first of all on the first page of that document under paragraph - or the heading A:
PN311
Alleged Suncorp impact on the way people voted or lack of good faith in the bargaining process.
PN312
There is a recurring theme as we see it, at 1.1 that the employer had superior access to the employees through information sessions and information packs when compared to the union. Now, in our respectful submission, under a 170LK agreement, that is not a matter that properly impacts on the issue of a valid majority for purposes of the clear tests under the Act, and we have pointed to the contentions and evidence going to that. At 1. - - -
PN313
MR PENNING: Your Honour, I would rise at this point to object to this further line of submission. The further line of submission is clearly intended to be based on evidence which is not before the Commission at present. It is not sought to rely in any respect on any evidence by the employers and what Mr Harmer is seeking to do is in a way, roll together, or truncate the processes which have to involve the evidence being called, cross-examination on the evidence, evidence in reply, if any, and then making submissions on those matters.
PN314
What Mr Harmer is seeking to do, appear through this document, and this process, is to ask the Commission to draw conclusions on the evidence that has been filed and has not been called nor the witnesses heard from. Then Mr Harmer is, without calling any evidence in reply through the employer's witnesses, which we understand has substantively been prepared, is then seeking to make submissions on the evidence in the witness statements.
PN315
On my submission, that is just completely inappropriate and not at all a process at this point which can be fairly undertaken by the Commission. It can't be undertaken by the Commission because it would have to rely on an assessment of those witness statements, absent the witness. He would have to rely perhaps, on assessment of a particular numbered paragraph of a witness statement taken out of context and possibly not having regard to other paragraphs in the witness statement.
PN316
He would have to account of - it would be reliant on Mr Harmer's summation or summarisation of what the evidence is in relation to the particular points and that, with due respect to my friend, is not a fair position to put the Commission in. Nor can it possibly be a fair position to put the three employees and through them, their agent, the FSU, in because it would, in effect, have to involve us making alternate submissions about the witness statements and outline of submissions when those documents aeronaut formally in evidence.
PN317
So it is just a process that is fraught with procedural difficulty and completely denies any sense of natural fairness or the proper way in which these matters should be progressed. Mr Harmer is certainly entitled - and I am sure he will do, with vigour and thoroughness in due course - to make submissions of this nature at the conclusion of his case.
PN318
But - and to seek to summarise the material that is in our witness statements and the material that would be in the employer's witness statements and the cross-examination and so forth of the material. But that position is not available to him at this point in time. I am asked to make one further point that the summation is absent any references to the expert witness report of Mr Steyne.
PN319
So there is no reference at all in this document, on a brief viewing of it - and this is the first I've seen that - there is one, I'm sorry - there is one reference. There is no substantive reference to the expert witness report that has been filed and tendered in the matter. I am just at a loss, your Honour, as to how Mr Harmer can properly seek to summarise and characterise the material in the way that he is seeking to give by reference to that document.
PN320
THE SENIOR DEPUTY PRESIDENT: What - this is the position as far as I'm concerned. I'm going to permit Mr Harmer to continue. I'm well aware of the situation in these - and I keep calling them interlocutory matters. That is not a very good word for these proceedings, but it will do. That the onus is on the person moving for the dismissal at a preliminary stage, to establish in short, that the application is utterly without merit.
PN321
You will have your opportunity to respond to Mr Harmer on that basis. I don't intend to prevent him making his application. The material that is currently before him is all that he has to go with. I will permit him to do that.
PN322
MR PENNING: Yes, your Honour.
PN323
MR HARMER: Thank you, your Honour. Look, just further to that exchange and appreciating the comments the Commission has just made, I would just repeat that the applications we make are layered - certainly strike out all revocation of intervention rights is what we seek. In the alternative there is the opportunity, in our respectful submission, to pare down the scope of the application, or again, in the alternative, to deal with remaining timetabling issues against the background of what we now put.
PN324
I just remind the Commission and the intervening employees that that is the scope of the issues which we now address. We are taking the material as received at its highest and in effect, contending that the purposes of strike out or revocation of intervention application, it just does not get close enough to what would be required under the Act.
PN325
So at 1.1 we say that the issue of an employer having superior access which again, would almost be axiomatic for most employers throughout the country, one would have thought in a voting process, is not, in our respectful submission, a proper issue under the Act, nor one that could on the material put forward, suggest a turnaround of the extensive majority, even if it were, with proper consideration.
PN326
The same with the email access issue which the Commission would recall, was addressed in a section 99 proceeding and the Commission, to my understanding, having indicated that a recommendation would be made in that issue, was actually requested by the FSU not to in circumstances where the company were saying: look, we are happy to give undertakings to clarify an issue of concern between the parties which gave rise to that email issue. The Commission has knowledge of that background.
PN327
Similarly with the assertion about an instance of prevention of distribution of leaflets. In the context of the outcome of the vote, it does not add up to a great deal, given the tests under the Act. An interference with holding a work-place meetings which relates to booking issues with rooms and the meeting being held in a park across the street, as I understand the evidence, again, how that is meant to shift the substantial majority is, in our respectful submission, beyond understanding.
PN328
Attendance at the information sessions was compulsory. Well, if that were the case, as the Commission is well aware, there are requirements for providing information under the Act and understanding of the agreement and how that again, removes that substantial majority or contributes to it significantly, in the context of the onus that would be borne by the intervening employees, is again, beyond comprehension.
PN329
At 2, the assertion that there was coercion. This issue involves the contention that Suncorp advised that it remove the AMP/GIO agreement. Now, again, this was the subject of a section 99 dispute before the Commission and the Commission may recall that there was clarification during the course of that proceeding, during which, as I understand it, one of the intervening employees participated in conciliation.
PN330
What was reported was that if there was a failure to remove - sorry, to - for the agreement to get up, then there would be an application to the Commission to remove the existing agreement, but there were also both in conciliation and subsequently published, the indications that the existing terms and conditions would be kept in place and as I say, the Commission would no doubt, recall that that was a specific item that was traversed by this Commission in conciliation.
PN331
Now, again, how that is intended to have coerced the massive majority in circumstances of the test and the onus, defies logic, in our respectful submission. The notion that Suncorp overwhelmed employees with a yes vote again, does not go to anything properly under the Act, in our respectful submission.
PN332
The evidence of the asserted intimidation by indications that one member of management allegedly got angry in an information session when asked a question, which seems to be what it goes to again, in the context of the majority concerned, just defies logic how that could satisfy the shift that is required.
PN333
The second range of issues commencing at B on page 3, involves a significant number of assertions going to the ballot process. Assertions that it was slanted towards a yes vote; difficulty in casting a vote; lack of confidentiality in voting. Certainly the lack of confidentiality, notwithstanding that it was certainly indicated in the secret ballot and the materials we put on that - sorry, in the statutory declaration and other materials, that it was a secret ballot.
PN334
There is no required per se under the Act for it to be a secret vote indeed. The Act actually contemplates the alternative of either an open or secret ballot. The FSU role as scrutineer - no requirement under the Act for that, and again, how that scrutineering role itself would justify reversal of the substantial majority, in our respectful submission, given the test, the relevant test, just does not get close.
PN335
The impartiality of the Secure Vote entity, the evidence here appears to relate to - notwithstanding as has been traversed in conciliation, that the FSU has itself been party to an agreement previously where Secure Vote conducted the ballot for the Commonwealth Bank. The assertion seems to be that because there are allegedly controlling interests behind Secure Vote that have an interest in the Finance Industry that there is in someway, prejudice.
PN336
It is again, with respect, does not approach anything that would suggest a turnaround in such a substantial majority. The non-receipt of information sheets pins is covered in the relevant report and in fact, in the evidence, relates to one employee. In terms of belated advice of the ballot result to the FSU, again, one has to ask the question: even if there was a delay in the FSU receiving the outcome, how does that assist in overturning such a massive majority in these proceedings?
PN337
There are then contentions about the validity of the result of the ballot, which again, in our respectful submission, when one goes to them, amount to submissions - sorry, suspicions and doubt, and one looks at the notion that it has to be a real possibility of overturning such a massive majority and not mere possibilities or suspicions. Then that, we say again, just does not go near to discharging the onus.
PN338
The accuracy of the voting role. Well, the extent of the numbers that is involved - and the same can be said for the next point, being the Steyne report from Liquid Vision. Again, just does not get near to overturning the relevant majority with one exception that I will come to in relation to Mr Steyne.
PN339
Now, in terms of the expert report from Mr Steyne or is put forward as an expert, and the materials - if the Commission will just bear with me? I will just go to Mr Steyne's report and the materials before - sorry - I will just locate a set of the - your Honour, just while I'm waiting to specifically refer to that report from Mr Steyne, if I could just first of all note that the FSU puts on that report, together with certain supporting reports, which again relate to what is referred to as a "Status report" if you like, by the Victorian Electoral Commission.
PN340
A further report that is relating to "Evolution, not revolution - electronic voting status report". Those documents are put forward in support of the expert evidence and yet, as we have indicated in our opening, there exists a later report in time which we have actually included in our exhibit document.
PN341
Your Honour, all we say at this point is, given the substantial onus and the reports seem to be put forward so as to cast some doubt on the validity of electronic voting and yet here it is, an expert, and there is a later report in time which based on pilot studies in the United Kingdom, substantially reverses the assertions - well, any concerns in the early report which even itself, set in controlled environments, there could be this form of voting.
PN342
We just say to the Commission, this gentleman is put forward by an expert. He puts forward an out of date report. I would have thought any expert in the field would know and therefore perhaps, deliberately not put forward, with great respect, the later report. One has to say, given the onus, that is not evidence, even approaching the discharge of the onus or the reversal of this valid majority by reference to purported concerns with the ballot process, and indeed, without going to the detail, the selective quotation from the out of date report is, in our respectful submission, something to be fathomed.
PN343
I do say in relation to all this material, we certainly invite the Commission to read and take at its highest, all of this material in light of the submissions we make. It simply does not warrant overturning the ballot that we have referred to in our material in support of certification.
PN344
Specifically, your Honour, when one looks at what seems to be relied on by the FSU within the - Mr Steyne's report, at part E of the report at point 8. The report points to a whole range of possible issues. To actually get the numbers and the report does rely on the reference to the report that we have put forward from Secure Vote, your Honour, giving the outcome and the substantial majority in numbers of the vote.
PN345
At page - I'm not sure if it is a numbered page, but on the document I have, your Honour, it is on the third last page from the end of Mr Richard Steyne's report from Liquid Vision. In the context, your Honour, of the yes vote exceeding the no vote by about 393 votes, so around, you know, you would say, 186 to 187 to turn that around, you would have thought.
PN346
There is a reference at about point 4 on the page, a rhetorical question, if you like:
PN347
Did Suncorp sit on the 55 that were no longer employees?
PN348
This relating to a report in tidying up - reported tidying up of the ballot process. The 40, in the transfers group - which is again, a reported component of the vote:
PN349
How many employees -
PN350
is asked -
PN351
were in the late group?
PN352
And asked about:
PN353
Non-receipt of an instruction sheet or pin after the ballot was shut?
PN354
Well, the report indicates that there was a call centre that dealt with those issues and then it goes on to say:
PN355
On one reading, 95 may not have been eligible but been included in any case. If 10 were not on the original list...
PN356
And you can assume there were others. And then there is a reference - and this is the two lines that it seems to be, is purported to take the numbers to a position where the substantial majority of 393 or 65 to 35 per cent, is a real possibility under the test of being overturned:
PN357
227 calls and 12 emails, the bulk of which relate to keying key pad difficulties. These voters may have unintentionally voted yes.
PN358
THE SENIOR DEPUTY PRESIDENT: May have unintentionally no.
PN359
MR HARMER: Well, could have done anything, your Honour. These are calls to a help desk in a call centre. Now, this is about as good as it gets in terms of turning over this massive majority, we have the expert saying: well, take every call to the call centre and every email of people who are actually clarifying difficulties. And you say, well, probably had therefore - I would respectfully submit, an increased prospect of getting things right.
PN360
The FSU to overturn this majority through their expert - in our respectful submission, appears to rely on the incredible assumption that everyone who went through that call desk by a call or email, may have unintentionally voted yes, and then the conclusion:
PN361
Therefore the declared ballot is open to question.
PN362
Now, given the substantial onus; given the test of not theoretical possibility, and your Honour, that conclusion by this expert would be scraping to get to the point of theoretical possibility. It is an amazing assumption, with respect. Is it a real possibility? Well, your Honour, in our respectful submission, given the onus; given the test; it does not approach it and we do have a quite significant majority here to deal with.
PN363
So your Honour, we say with respect to that report and the various issues, they again just don't point on any basis, to a real possibility of that ballot outcome being legitimately turned around in any way, shape or form. Now, your Honour, at point C, we move to an area which overlaps with the next aspect of our submission.
PN364
It relates to the role of the FSU in the matter, but by way of indication, your Honour, there is a series of contentions at point 13 that Suncorp wasn't prepared to negotiate with the FSU. Now, your Honour would recall again, that very issue was the subject of proceedings before this Commission, 170NA, from memory, and the Commission itself said that further negotiation between the parties - and this is recorded on transcript - were just pointless because the parties were on different planes, notwithstanding that there was a quite lengthy process of attempts between the union and the employers to get agreement.
PN365
Now, the Commission is aware of that. It was the subject of conciliation and a finding by the Commission that further discussions just wouldn't, you know, prove fruitful, and now it is put forward as some sort of purported basis to overturn this legitimate vote. There is in reference to the ..... dispute, to the Victorian Workers compensation dispute, each of which were subject of section 99 proceedings before the Commission.
PN366
Then a reference to the approach adopted to Suncorp, by Suncorp leading up to the integration agreement in contrast to their own internal staff agreement. One has to say: well, yes, there may have been different processes adopted in these different circumstances, but what does that do to discharge the onus and to get that change that is required, in our respectful submission.
PN367
It is simply difficult to see how these three employees, or the FSU in their guise, can purport that that is material that, you know, significantly impacts on that onus that would have to be discharged in the FSU's case, or the three employees case.
PN368
The final component on page 8, your Honour, that we can discern is the no disadvantage test. It really here involves assertions by witnesses that because there are no submissions on this point and it is one of our concerns that we just don't believe that we have the totality of the submissions and I think that has been confirmed, but that aside, assertions that there is disadvantage as against the GIO award, now there is a table saying: look, the GIO award has all these things and you won't find them on the face of the integration agreement.
PN369
Now, as I took the Commission through before, the entire framework of the agreement is to ensure no disadvantage, not only against that award, but more importantly, against the existing GIO agreements which continue for GIO employees and which have to be surpassed on an overall basis for other employees. I took the Commission through that in our opening today.
PN370
With respect, your Honour, these assertions again, as a basis for in any way discharging an onus in relation to that test, or seriously challenging it, in our respectful submission, do not warrant further attention from the Commission against the background of the submissions in the face of the agreement that are before the Commission.
PN371
So your Honour, taking that material at its highest; taking Mr Steyne and saying: well, if that is as good as a guess, you make an assumption that everyone who called the call centre unintentionally voted yes, and that is the way to get around the massive majority - take that as its best, is that a real possibility as opposed to a theoretical one?
PN372
In our respectful submission, it is open to this Commission to say: this material just does not get within cooee of what is required and against the background of significant non-compliance, a massive case now to be run - and the FSU, through the employees, or - sorry, the employees with the assistance of their agent, the FSU, they haven't even finished. There is more statements to come; more submissions, purported outside the directions.
PN373
In our respectful submission, the Commission is faced with the prospect of hearing out in full, this massive case for what it adds up to, carrying with it, significant delay to parties which have with knowledge, already delayed the process. There was liberty to apply to both parties to come back to this Commission.
PN374
There has been no attempt to re-list. No attempt to seek extension of time. No attempt to re-jig the timetable, just a unilateral purporting of an ability to just keep on adding and adding, even when they committed in writing, one more statement. Now there is two more on top of that and more submissions.
PN375
It is inappropriate. It is unfair, extremely unfair to the vast majority of employees that supported this agreement and the company, and it should not be entertained by the Commission, in our respectful submission. It is just not consistent with this thrust of the Act to facilitate the making and certification of agreements to allow these three employees, with the FSU, to dictate this course through their own non-compliance with firm directions.
PN376
Now, your Honour, that is all we seek to do in relation to that summary table. Your Honour, I'm just reminded, and again, it did emerge in conciliation. I think I mentioned it briefly before, but the FSU has, in circumstances where it is consenting to the Commonwealth Bank's agreement, acquiesced in Secure Vote conducting the very same form of ballot without a problem.
PN377
It does point to a considerable degree, in our respectful submission, of something bordering on hypocrisy, that if you like the agreement and if you haven't got a problem with the process if you don't, all of a sudden, you have to dredge up every problem in the world and make assertions about the independence of the process.
PN378
Again, it just does not, in our respectful submission, warrant the Commission further entertaining evidence and submissions of that ilk. Now, your Honour, so we say in summary at the top of page 3 of the outline that the material even taken at its highest, does not disclose a real possibility of an alternative outcome to the ballot based on the tests that we have alluded to.
PN379
Now, as I say, that we say, is a basis for strike out or revocation of intervention. If we are not correct on that front, we say alternatively, at the very least, pare back this application or contentions in opposition, to a proper scope, or at the very least, look at future timetabling issues in light of these submissions which we would say, either warrant the case being closed as it currently is, or very tightly involved being closed on the part of the three employees and I will come back to that point.
PN380
Your Honour, at 4.5 of the outline, we return to the issue of section 43 which your Honour will recall, was the subject of discussion and submissions in the context of the section 99 proceedings, and your Honour made a decision that the FSU, which your Honour will recall, on 15 January, brought before the Commission, a section 99 dispute, and accorded that in that section 99 dispute, it was going to seek orders for a further secret ballot based on the evidence of three employees who happen to now be the three interveners.
PN381
The company has made submissions to the effect that that would enable it to be pursued to inappropriately circumvent the clear statutory intention behind section 43 of the Act and your Honour then issued a decision, indicating - following a decision by Deputy President Hamilton, that that would be an inappropriate course and the section 99 proceeding was adjourned.
PN382
The FSU then, despite its earlier indications that it intended to seek leave to intervene, did not and it sought leave to intervene in respect of these three employees, the same three employees that were the witnesses in their section 99 case adjourned. Now, that had to be taken at face value whilst the intervention was opposed.
PN383
Your Honour, relying on one of your own - your Honour's own earlier decisions in relation to Telstra, took the view that it wasn't appropriate without further evidence to conclude that that was a sham arrangement. Now, what we say, your Honour, is that when your Honour gave that indication, in transcript, following the section 99 proceedings, your Honour reinforced the transcript in these proceedings at paragraph number 15 that:
PN384
I make it plain for the record, that the permission to intervene, the leave to intervene which I have granted, is to the three named individuals. They elect to be represented by the FSU and through that, Mr Penning, but leave is granted to the individuals, not to the FSU.
PN385
And your Honour, that was an appropriate - in our respectful submission, caution to note, particularly in what has since transpired. If one does look back at the summary table where one sees that outside of the scope of the original statements put on by the three FSU members in the original section 99, and now in this matter, the FSU itself, through Ms Hannan, is purporting to put on a whole raft of material about disputes throughout the entirety of the history of this matter between the FSU and Suncorp/GIOA.
PN386
In our respectful submission, your Honour, if the ability of a union coming forward to put up its own case with three employee member witnesses, when faced with the restrictions on intervention on certification proceedings, can merely intervene those three employees and then proceed - on an almost unabashed basis, to say: well, right, we are back in, notwithstanding the clear intent of the Act, and we will just go no holds barred.
PN387
Anything we want to put on as the union, we will now insert, including the whole history of section 99 disputes and issues that, to our view, have not been resolved to satisfaction, or whatever it is, the point that is purported to be made by traversing all this industrial history between the parties. Now, in our respectful submission, your Honour, there is a line to be drawn between employees intervening as employees in their capacity as employees, and what can be properly brought forward in that context.
PN388
The role of those employees as members of the union and the ability to say: look, one of my concerns as an individual employee is that the union didn't get everything that it wanted throughout the whole matter, so here is the union. And the union just proceeds as if it is the intervener. That, in our respectful submission, whilst it is difficult to draw the line, I acknowledge, has to cross the line in our respectful submission.
PN389
Indeed, if you look at the scheme of the Act, employees who are not members of the union who intervene, obviously not only would not desire to, but would not, as employees in the capacity of employees, and could not properly bring forward, issues going to the role of their union in the process, or its distain or unhappiness with our outcomes of prior section 99s and other proceedings before the Commission.
PN390
Now, how these three employees, just because they are members of a union, can, against the face of a clear legislative intent of section 43, which we traversed, your Honour, in the decisions we went to last week in the section 99 matter - and I can go to those again, but specifically the one that your Honour adopted from Deputy President Hamilton, whereby the legislative intent was to prescribe very clearly, that unions can only intervene when they have been asked, pursuant to LK(4), to get involved in conferring over the agreement or where they elect to be bound.
PN391
It is not contested. There were no such requests. Even these three employees who intervened. They didn't request their union to get involved in representing them in the course of the negotiations. Now, they say - or they purport, that in their intervening role, they should be able to have the FSU dredge up all of this industrial history.
PN392
MR PENNING: Well, your Honour, I object. Mr Harmer is seeking to lead evidence, or put evidence before the Commission not by way of a submission, but as I say, by way of evidence. There is no evidence at all about what the three employees did or didn't do.
PN393
THE SENIOR DEPUTY PRESIDENT: That appears to be the case.
PN394
MR HARMER: Your Honour, I don't entirely agree with that submission. Your Honour, by way of demonstration of the position of the three employees, the only evidence we have of their position are their statements and what they addressed indeed, when, prior to this intervention, they were brought forward as witnesses of the FSU in the FSU's section 99 proceedings that we dealt with last week.
PN395
If one goes to the transcript of that section 99 proceeding before the Commission as currently constituted and is part of this Commission's record this Commission is entitled to look, Mr Penning, on behalf of the FSU at paragraph 83, sets out that:
PN396
There are very significant concerns regarding processes and events in the period immediately prior to the ballot on the part of the FSU. The FSU is in a position today, if considered appropriate, to lead initial evidence in several of the matters of concern.
PN397
The FSU had, without notice of the company, witnesses present, although we have received statements overnight and I think a further witness keyed up to give video evidence. Now, those three witness statements put forward by the union and those employees, and I think we are entitled to make the assumption, your Honour, that those employees were raising their concerns in support of the union concerns.
PN398
Those statements were put - actually filed, in this section 99 proceedings. For those three employees to put not only their own views, but their concerns vis-a-vis their union.
PN399
MS HANNAN: And you stopped us.
PN400
MR PENNING: Yes, but Mr Harmer, this is somewhat silly, but Mr Harmer, of course, objected to the tender of the statements and the workers weren't called to give evidence, so we are back to that same point where you have got a filed statement in another matter, but you haven't got any evidence before the Commission about this.
PN401
MR HARMER: Your Honour, as Mr Penning has pointed out, the exact same statements were then put on this proceeding by those three employees, so - - -
PN402
MS HANNAN: So you have got them.
PN403
MR HARMER: Again, taking it at their highest, the point we make, your Honour, is without disputing or cross-examining, that is the expression of concerns by the three employees, and prior to this intervention, there is evidence that in support of the union's case, that is what they sought to put on by way of statement.
PN404
Now, what we say, your Honour, is that given the scheme of the Act, and we say this with great respect - the Commission has to be extremely important in our - careful, sorry - in our respectful submission, not to allow unions to utilise intervention by a number of employees who happen to be members, to then re-open what would be effectively, a complete and unabridged intervention process for the FSU.
PN405
Where those employees unfettered, with the encouragement of the FSU, have previously put on their statement about what were their issues. They did that even in support of an FSU case which goes higher than the scope of what we would say is legitimately the intervention rights here. Now, the evidence before the Commission is, that notwithstanding those - that expression of the views of those three employees by way of concerns, there is a purported right for those three employees, through say, Debra Hannan, to put on a whole raft of material.
PN406
I ask the Commission specifically by way of example, to read Ms Hannan's statement which was served on us about 5.30 on Monday night which has about a hundred pages of annexures, addressing essentially, the history of disputes before this Commission between these parties. I ask the Commission in that context to contrast the original statements of those three employees at the behest of the FSU - contrast that to the material that is now coming forward from the FSU in these proceedings, purportedly as a mere agent for the employees, and not as an independent intervener in effect.
PN407
Your Honour, in our respectful submission, the evidence here that the FSU, stepping out from behind these employees, is getting around the intent of the Act, is almost overwhelming. If one looks at the evidence which is in the mere course of conduct. Section 99 - we want to run all these issues; we want to intervene. Section 99 put back - we will intervene on behalf of these three employees.
PN408
They have already got statements of their concerns and then it just balloons out and one has to ask: is that the instructive position of the three employees or the contribution of the FSU, not as an agent, but as effectively as an intervener? Now, I acknowledge, your Honour, it is difficult, but there has to be a line drawn and in our respectful submission, the Act warrants that.
PN409
Otherwise, section 43 becomes almost a farce, in our respectful submission, and your Honour, again, we say that has got to be considered in the context of non-compliance now with the directions. The paucity as we would respectfully see it, of the ability of the three employees through the union to get around the onus to overturn the massive majority in favour of this vote, and we now say, based on the authorities we went to on the last occasion, the attempt by the FSU to get around the intention of the Act.
PN410
So your Honour, what we say is that the matter should be struck out and the intervention revoked for the reasons we have gone through. In the alternative, your Honour, the matter should at least be pared back either to something which by way of something analogous to pleadings, properly confines the rights of the three employees to their originally expressed concerns.
PN411
As further abridged, to remove things, which seem to be not their concerns but rather their concerns on behalf of their union, precluding the FSU material which, as I say, seems to put itself forward as the intervener in this matter with full rights, and certainly your Honour, we say in terms of timetabling, given the importance of getting this matter resolved as quickly as possible, the appropriate course would be to - having regard to the substantial non-compliance to date with the directions, to at the very least, turn off the tap and make it clear that there is to be no more material.
PN412
There has been more of an adequate chance, given the program set, and if the case is going to go ahead at all, have it go ahead with materials that have been put on to date and the contentions that can be derived from that material as pared back in the manner we have submitted.
PN413
So your Honour, that is the basis of the application and as I say, it goes to strike out revocation and intervention, or in the alternative, paring back, or at the very least, an impact on timetabling in going forward, your Honour, in the respectful submission of the companies. If the Commission pleases, that is all we seek to put on the issue. Thank you, your Honour.
PN414
THE SENIOR DEPUTY PRESIDENT: Very well. It might be appropriate to adjourn for lunch at this stage and resume again at half past one.
PN415
MR HARMER: If it please the Commission.
LUNCHEON ADJOURNMENT [12.20pm]
RESUMED [1.40pm]
PN416
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Penning.
PN417
MR PENNING: Thank you, your Honour. Your Honour, as I briefly indicated this morning, in this matter to date, the employees, through their agent, the FSU, have filed and served five witness statements of employees. In addition to that, a witness statement and a supplementary witness statement has been filed and served on behalf of Debra Hannan.
PN418
An expert witness report has been filed and served on behalf of Richard Steyne, and an outline of submissions concerning the ballot process and bargaining in good faith has been filed and served. Your Honour, the witness statement for Linda Hawkes, one of the employee witnesses, and one of the three named employees granted leave in the proceedings, were originally - was originally filed and served on 14 January, as were the witness statements for Larry Stevens and Michael Tsougranis.
PN419
The three witness statements for those three employees were subsequently simply retitled as being in the current proceedings, that is, matter 2002/6818, rather than in the Dispute Notification proceedings, and were, for abundant caution, re-served on Mr Harmer's firm. Aside from one clarification, I understand at paragraph 9 of Mr Tsougranis' witness statement, there was no alteration to the three witness statements.
PN420
Debra Hannan's witness statement in relation to the ballot processes and annexures, including Mr Steyne's report, including the Victorian Electoral Commission report, and an internet policy document, were filed and served on 22 January. A subsequent short witness statement of another employee witness, Clare Andrews, relating to the ballot process, was filed and served on 29 January.
PN421
A witness statement for another employee witness, Lorraine Wilson, was filed and served also, on 29 January. The outline of submissions was filed and served on 31 January and the further witness statement or the supplementary witness statement of Debra Hannan was filed and served on 3 February.
PN422
Your Honour, by our calculations, that quite substantive amount of documentation - I'm not sure whether the Commission has had an opportunity to briefly review the documentation - - -
PN423
THE SENIOR DEPUTY PRESIDENT: I have perused it.
PN424
MR PENNING: - - - at least see the size and the scope of some of the material, has been compiled and as best we were able within the limited time set and filed and served within what, by our calculations, was only 11 working days since the last occasion that the matter was before the Commission. Now, very substantively in comparison - I withdraw that.
PN425
Could I say just in terms of our ability to prepare that material within that period of time, your Honour, Ms Hannan, you may be aware, has been involved in two other Suncorp dispute matters which have been before this Commission, which have also required a good deal of time and energy to attend to.
PN426
I trust Mr Harmer is not suggesting there has been any bad faith in any way in our endeavours to fully comply with the Commission's timetable. There certainly has not been. There has been no intended delay and all efforts have been made to provide the material as it became available to allow Mr Harmer and his client to prepare their material in reply.
PN427
Your Honour, we have advised Mr Smith of Mr Harmer's firm that we did propose to file a short amount of additional documentation. I am instructed that that short amount of additional documentation will be only this - not one, not two, further witness statements. One other document which is a comparison document of conditions of employment under the relevant industrial instruments, and a supplementary outline of submissions.
PN428
We had previously indicated that we would provide that material either by early next week and then subsequently by close of business on Friday. I'm instructed that we can provide that material by lunch time on Friday. Could I contrast that with the employer's position? The employers have completely failed to comply with the Commission's directions.
PN429
The employers have filed no statements and have filed no outline of submissions. Your Honour, in terms of the general progress of this matter, it is our understanding, and I believe this is a process which would occur by consent, that Mr Harmer, having given his formal opening today which we certainly didn't object to, even though in a sense, we don't have any of the evidence which will be relevant to the issues which will be before the Commission.
PN430
We didn't object to the opening occurring. That has been done. The further process, as I believe we see it, and Mr Harmer sees it, would be that we would lead our evidence and witnesses. The way we intend to do that is to firstly call the employee witnesses. We would anticipate leading with Linda Hawkes who is perhaps, the principal of the employee witnesses.
PN431
Then subsequently, the four remaining employee witnesses. Your Honour, we were fully prepared today, to have those employees available for - to have their statements tendered, to be put in the witness-box and to be cross-examined. We had made arrangements with those employees for that to occur. So in respect of any time being lost, in the hearing of this matter, we would say that was certainly not of our doing.
PN432
In fact, the first three witnesses, Linda Hawkes, Larry Stevens and Michael Tsougranis, had their witness statements filed and served on 14 January. That is approximately 3 weeks ago. It was Mr Harmer's client - Mr Harmer's firm that made the election not to cross-examine those employees today. They were available to be cross-examined. That could have proceeded.
PN433
It was in fact, necessary for us to cancel all the arrangements that had been made and in some employees' circumstances, that actually involved them changing child care arrangements and other things of that nature, because those arrangements had needed to be put in place in advance. Your Honour, we would still intend to call those witnesses, effectively, in that procedure, in that way, next Wednesday, on the 26th - withdraw that, on the 12th. We don't see that that day need in any way, be lost.
PN434
If I could briefly outline what we propose thereafter in respect of our case, your Honour, that is that Mr Steyne's evidence would, we believe, be heard on the - or given on the 26th, probably, and it might be that we would seek a special fixture to commence his evidence at the start of that day. We would either have Ms Hannan's after Mr Steyne, or if time was available on the next occasion, that is on the 12th, that her evidence would be given on that occasion.
PN435
THE SENIOR DEPUTY PRESIDENT: I think you have got me a little confused. You are suggesting that in your case, the four employee - - -
PN436
MR PENNING: Five employee witnesses.
PN437
THE SENIOR DEPUTY PRESIDENT: Five employee witnesses can go ahead on the 12th?
PN438
MR PENNING: Yes.
PN439
THE SENIOR DEPUTY PRESIDENT: Mr Steyne's evidence on the 26th?
PN440
MR PENNING: Yes.
PN441
THE SENIOR DEPUTY PRESIDENT: Ms Hannan's evidence - - -
PN442
MR PENNING: Well, your Honour, if there was still time available on the 12th, after the employee witnesses - - -
PN443
THE SENIOR DEPUTY PRESIDENT: Start then - at least start then.
PN444
MR PENNING: Yes. But interpose, I believe, Mr Steyne's evidence.
PN445
THE SENIOR DEPUTY PRESIDENT: Yes, I understand it now.
PN446
MR PENNING: I'm just reminded, whilst there are currently five statements, I've foreshadowed that there would be one further statement, so that would be that there would be six employee witnesses.
PN447
THE SENIOR DEPUTY PRESIDENT: Right. Six including Ms Hannan?
PN448
MS HANNAN: Indeed.
PN449
MR PENNING: No, six excluding Ms Hannan.
PN450
THE SENIOR DEPUTY PRESIDENT: Six, excluding Ms Hannan.
PN451
MR PENNING: But in many respects, the employees witnesses is relatively short and relatively discreet to their own circumstances.
PN452
THE SENIOR DEPUTY PRESIDENT: That is a fair observation.
PN453
MR PENNING: Now, Mr Harmer has referred briefly to some of the correspondence between the parties in relation to the procedural matters, your Honour. Your Honour, did you obtain a copy of a letter addressed to Mr Harmer which was also intended to be copied to the Commission, from the FSU, dated 4 February, which was sent late yesterday?
PN454
THE SENIOR DEPUTY PRESIDENT: The parties usually don't miss me, Mr Penning.
PN455
MR PENNING: No. Sent late last night.
PN456
THE SENIOR DEPUTY PRESIDENT: Dated the?
PN457
MR PENNING: Yesterday, 4 February. I have a copy of it in any event.
PN458
THE SENIOR DEPUTY PRESIDENT: No, I think I have it. There is a letter from Mr Harmer with Ms Davis' statement attached. There is a letter to Mr Harmer of 4 February which is in response to earlier correspondence on that day.
PN459
MR PENNING: Yes.
PN460
THE SENIOR DEPUTY PRESIDENT: Is that the one you mean?
PN461
MR PENNING: Yes, I - the first paragraph begins, "FSU has received a further correspondence".
PN462
THE SENIOR DEPUTY PRESIDENT: Yes, that is right.
PN463
MR PENNING: Yes. Well, your Honour, that probably sets out reasonably fulsomely, our account of the timetabling matters that have occurred. Could I particularly draw your attention to paragraph 3 where we - - -
PN464
THE SENIOR DEPUTY PRESIDENT: Yes.
PN465
MR PENNING: Paragraph 3, where Ms Hannan confirms that we were in no way seeking to delay the hearing of this matter in that we were prepared to proceed with our witnesses tomorrow, beginning with the employee witnesses in the order that I had foreshadowed. Your Honour, the notice for Mr Harmer's firm to the union yesterday at approximately 4.30 pm, was the first notice that we had that there was any contemplation of a strike out application or revocation of intervention argument.
PN466
Could I submit generally, that if the Commission is any way minded to strike out the leave to the three employees to run their case, or in any other way minded to substantially restrict the matters that can be raised in the hearing of the application for certification, then given the late notice by my friend of the matter, we would require time to put on evidence and we would require time to make detailed submissions in relation to that matter.
PN467
So in the very substantial period, or in the period between the time the matter was last before the Commission on 15 January, and today, the first notice we had of any intention to seek to substantially limit the material that was to be filed and relied upon by the union, was at 4.30 last night.
PN468
Your Honour, Mr Harmer took you to the document entitled, "Summary table" which has been marked as GIOA7I and I repress the general submission made in objection to that document that it is a premature in the extreme, to place the Commission before the material - place the material before the Commission in this way.
PN469
Mr Harmer is seeking the Commission to make findings in relation to what he would characterise as our contentions without the Commission having had an opportunity to review the evidence; without the Commission having had the opportunity to see the witnesses and assess the witnesses, and most importantly, without the company, or employers, having been required to put on any evidence in reply to the quite extensive material that that has been filed.
PN470
Your Honour, there is no application with substance for urgency before the Commission in this matter. A witness statement was prepared by Ms Helen Davis, Employee Relations Consultant, for Suncorp Metway. That was sent to us late last night - or it was sent to the FSU, and I saw it for the first time this morning. Mr Harmer did not press the tender of that statement.
PN471
There is no other evidence that has been put before the Commission as to any urgency in this matter which would require the potentially substantial curtailment of the case which the union, as agent for the employees granted leave to appear, seeks to put. Mr Harmer's submission appears to be this, in an encapsulated form in relation to provisions of the Act, your Honour.
PN472
It is that it wouldn't matter what the employer did in the context of seeking certification for an agreement; it would not matter what the employer did in relation to representations that had been made to employees; it would not matter how the process occurred and how the process was conducted, and it apparently it is not relevant for the Commission to satisfy itself that there is a valid majority or that there was knocked up coercion or pressure or that there was genuine agreement of employment of employees.
PN473
Those are the matters that we seek to raise through our evidence. Mr Harmer is attempting to put an argument to the Commission which, at best, on our submission, could be put at the conclusion of our evidence. That is, our witnesses have given their evidence, are being cross-examined on it. The documents that are relevant to the matter have been more fully analysed by the Commission and at that point, it may be appropriate - although I don't believe it would be successful, but it may be appropriate at that point, to properly make, and for the Commission to entertain, a strike out application or revocation of intervention argument as put this morning.
PN474
It is not appropriate, on my submission, and it would be a major denial of any form of procedural fairness and would in fact, be improper for - in some respects, for the Commission to be asked to make that decision without the evidence being led and without the witnesses being cross-examined and without the documents being reviewed by the Commission.
PN475
We are not, however, at that point. We are not at the point at all where our evidence has been led, where the witnesses have been cross-examined. Of course, we are not even at the point where the employer has complied with the directions of the Commission and has put on any of its witness statements or outline of submissions in respect of the matters which we have raised.
PN476
It is perhaps important to note also, that whilst Mr Harmer noted that liberty to apply was granted to the parties in this matter, and that may well have and possibly should have, involved some discussions between the parties about alterations to the Commission's directions. That did not occur by us, and nor did it occur by the employers. So the employers have taken it on themselves to not comply with the Commission's directions.
PN477
In fact, not put on any material where, as I say, we have genuinely endeavoured to comply and have put on very much the substantial body of material in the substantial body of evidence. In some respects when the matter proceeds in fact, your Honour, in a procedural sense, we will be the party at a disadvantage because assuming we get the employer's material which would be their evidence that they would lead in-chief in response to the matters that are raised by the employee witnesses, the employees would have a very limited opportunity to review that material and give consideration to it, presumably before being cross-examined.
PN478
Now, that was a problem which I foreshadowed on the last occasion of being a concern to us. But nevertheless, we are endeavouring to be flexible and don't propose on that basis, to not call the employee witnesses next Wednesday. Could I perhaps make one other comment in relation to the summary table, document GIOA7I? Your Honour, you have been taken very selectively, I would say, to Mr Steyne's report.
PN479
It is a paragraph or two that has been selected from that report to attack its voracity. Now, your Honour, at the end of the day, it may be that having reviewed the evidence; having reviewed the material that is associated with Mr Steyne's report - that is, the other reports of electronic voting that are - that have been filed in the Commission in this matter - and seeing any evidence which the employers put on which is in reply to Mr Steyne's report and which given an explanation for, or answer the questions which he has raised in some respects, that it will be that you would come to a conclusion that the matter that he raised do not have sufficient voracity within the context of the requirements of the Act to upset the valid majority requirement.
PN480
It may be that. It may be otherwise. It may be that the Commission will come to a view that there are very considerable issues and very considerable concerns that are validly raised by Mr Steyne's report, bearing in mind that at the time of preparing that report, he had a limited amount of information. Now, he has raised issues, in my respectful submission, which are proper for there to be some inquiry in relation to them, and that is the proper way in which we have sought to deal with it.
PN481
But it would be wrong to effectively seek to curtail or in some way, selectively strike out aspects of Mr Steyne's report because what Mr Harmer is in effect, through this application, seeking that the Commission do, is either reject the tender of that statement in its entirety, or prevent us from relying on the report. Now, that is simply not the right way to do it.
PN482
At the end of the matter, Mr Harmer is certainly entitled to - and I'm sure he will - make the submissions which he has effectively made today about the relevance of the matters that are raised by Mr Steyne. We will have things to say about Mr Steyne's report and the matters that come out in evidence, and we will have things to say, no doubt, about the material which is tendered by the company replying to the matters which he has raised.
PN483
But it is entirely premature to seek to do that now. It would place us at a very considerable disadvantage also if the Commission were to say to me, for example: well, what does Mr Steyne have to say about this, or what does Mr Steyne have to say about that. Your Honour, I genuinely don't know. But I'm not the one to give evidence for Mr Steyne.
PN484
I will make - we will tender his material. He can be cross-examined on it and we will make submissions about it, as should Mr Harmer.
PN485
But it is a try-on to say to the Commission: strike it out now, don't have regard to it now, on the basis of my selective interpretation - Mr Harmer's selective interpretation of one or two paragraphs of that report. Now, when the matter was last before the Commission, we foreshadowed that we would file and serve the report of Mr Steyne. We didn't hold that information back. We didn't keep it a secret, and we filed and served it immediately it became available in a settled form to us.
PN486
We are not seeking to trap the employers and I don't believe that in a procedural sense, following the timetable that we have outlined, that is, that Mr Steyne's expert evidence wouldn't be heard until 26 February that there is any substantive procedural disadvantage to Mr Harmer in terms of obtaining material for cross-examination of him. There was no objection taken on the last occasion to the proposal to tender Mr Steyne's report.
PN487
So there is no objection in principle to that. There is now an objection, or an attempt to strike it out, or in some other way, limit it, or restrict it on the basis, not of the Commission having had the opportunity to consider in detail what he says, and consider it properly. So that is entirely premature. Same approach is taken to Debra Hannan's statement.
PN488
We foreshadowed on the last occasion, on 15 January, that we would put on statements from Ms Hannan. In fact, I believe that we indicated - or I indicated, that there would be two separate statements and that they would deal with relatively discreet - as best we were able, areas of our case in opposition to certification. No objection was taken on the last occasion as is apparently taken now, to Ms Hannan putting on a statement on the basis that she was an officer of the Finance Sector Union.
PN489
In fact, your Honour, there is absolutely no objection taken by the employers to the filing and service of Mr Steyne's report at all, until this morning, and I believe there is no objection taken to the filing and service of Ms Hannan's report, also until today. So there is very extensive correspondence between the parties between 15 January and 5 February, and at no time are we told: yes, there is an objection to Ms Hannan giving evidence because she is an FSU officer, or Mr Steyne, because whatever reason. Not at all.
PN490
So that is raised for the first time today. Is the Commission being asked to strike out in some way, part of Ms Hannan's statements, for example, and leave in other parts? Is the Commission being asked by Mr Harmer to disaggregate Ms Hannan's statement or to de-construct it. If that is what is being asked, that is not entirely clear and that would be, with respect, an extremely difficult job for the Commission to do.
PN491
If Mr Harmer's submission is that aspects of Ms Hannan's statements ought properly be excluded, then the normal course of events, your Honour, would be that when Ms Hannan gives her evidence, that Mr Harmer says: I object to paragraph 3, 4, 5 and 6, or whatever, and these are my grounds of objection and the matter is considered then. Or he says: I would like my objection noted and I will make submissions as to relevance.
PN492
That would be a shorthand way of dealing with it at the time. But what effectively is being asked of the Commission at the moment is that it exclude, presumably the whole of Ms Hannan's statement or statements. That would be an extremely difficult thing for the Commission to undertake. It would have to be a major denial of any form of natural fairness, on my submission.
PN493
It is not saying that Mr Harmer, of course, can't raise those arguments. He can. But he raises them, on my submission, at the appropriate time, not now. And really, the same thing must apply, perhaps to a lesser extent, to the other witness statements, that is the witness statements of the employees. Is the Commission being asked to exclude some and not others? Is it being asked to exclude some paragraphs from some statements but not others?
PN494
Well, that is not at all clear, and would be an extremely difficult thing for the Commission to do and there is no proper basis, on our submission, for that to occur. Your Honour, I don't believe this is disclosing anything which is improper. We had had discussions with Mr Harmer's firm, principally through Mr Smith, about seeking alternate dates that might be available to the Commission.
PN495
I have ensured that I have set aside the dates of 26, 27 and 28 February, in the event that those dates either in total or some of them were available to the Commission, and we would seek that those dates be taken if at all available. We don't want in this process to improperly delay the Commission's consideration of the certification application. We want to put on our evidence.
PN496
We want to have an opportunity to cross-examine the employer witnesses about the material which they raise. As I've indicated, there is no evidence before the Commission other than a general desire of these two employers and, no doubt, a general desire of any other employers in similar circumstances, to have the matter dealt with with appropriate expedition. We concur with that. It should be.
PN497
But the timetable that is currently set is not unduly long. As I've indicated, if there is any procedural disadvantage in the matter proceeding in the way foreshadowed, it is a slight procedural disadvantage to us because we would have a limited period of time for our witnesses to review any material that the company puts on - or companies put on in reply.
PN498
Nevertheless, I would hope and trust that the employers are in a position to file their witness evidence before our witnesses come before the Commission next Wednesday, and whilst Ms Davis' statement has not been pressed and not been tendered, she does indicate in that statement - and I say this because it was faxed through to the Commission, that work has been undertaken to prepare statements in reply by a number of witnesses for the employers.
PN499
In my respectful submission, your Honour, this application by the companies is essentially a timetabling application. I regret that all of our material was not able to be put on in the period of time available. It would, however, definitely have been open to the company to have prepared and provided to us, its material. This is not the first case and would not be the first case where material was able to be filed and served during the course of proceedings.
PN500
Lengthy unfair dismissal cases, as an example, often involve circumstances where one or other party has an opportunity to put on evidence in reply during the course of the matter, to material that is served by the other side. That could have occurred here, but it was the employer's election not to proceed with the matter and not to cross-examine our employee witnesses, but it was the employer's election not to proceed with the matter and not to cross-examine our employee witnesses.
PN501
Your Honour, just in relation to a procedural matter, I believe that when this application was called this morning, it was only the AG2002/6818 matter which was listed and on that basis I did not announce any changes to the appearance.
PN502
THE SENIOR DEPUTY PRESIDENT: That matter has not been called at all yet.
PN503
MR PENNING: No, the XF application has not been called, and on basis that it has not been called, I don't need to announce a separate appearance for that, but just so that it not pass, it is likely to be the case that our appearance in that matter would be for the Finance Sector Union itself rather than for the three named employees granted leave to intervene. In a timetabling sense, as I've indicated, the quite small amount of additional material which we propose to put on will be completed and served by lunch time Friday.
PN504
We would trust that prior to the matter recommencing next Wednesday, we would be served with the employer's evidence and witness statements and submissions. Your Honour, I would respectfully re-state our submission that if the Commission were seriously minded to consider any form of strike out application, or any form of curtailment other than by timetabling of the case that we seek to put, I would ask for leave to put on evidence as to that and to have an opportunity to make more formal submissions in relation to various of the matters that Mr Harmer has raised this morning.
PN505
We believe the matter can fairly and sensibly proceed on the basis that we have outlined. There is no prejudice that is occasion to the employer by that. In terms of the size of the hearing, that can't, of itself, be a factor in the Commission making a decision to strike out, revoke or otherwise limit the case which is put.
PN506
If Mr Harmer is of a belief and intends to make submissions that various of the evidence that is led in the witness statements for the employee witnesses, for example, or Ms Hannan, is not relevant to the statutory questions that the Commission would be required to determine, then his choice is quite simple. He either does not cross-examine on those points, or he cross-examines in only a very limited way and then makes the submission at the end.
PN507
Or, if he wishes, he perhaps considers an objection in relation to certain paragraphs in the employees statements and says to the Commission that they ought be struck out for reasons that he would seek to put forward. If it is the employer's belief that the material which is in the witness statements don't bear on the statutory tests, then one would presume that the cross-examination of the witnesses would be relatively brief.
PN508
The timetable which I foreshadowed as to when the witnesses are to be called would proceed without any difficulty. Your Honour, Mr Harmer, through his submission, on many occasions used the words "substantive non-compliance with directions". I don't know whether he has borrowed George Bush's phraseology, but it is a shorthand form which we strongly object to.
PN509
Now, I've indicated in a general sense, when the documents were filed and served and how they have been dealt with by the union, attempting to act in completely good faith to supply those documents within a relatively short timetable, and bearing in mind that the employee witnesses certainly needed to be spoken to and there were constraints in terms of their time and availability, and so forth.
PN510
Ms Hannan would like to, herself, make a separate - an additional submission in relation to the dates of the filing of and preparation of those statements and matters. In certain respects, I would normally consider that level of detail necessary, but a good deal has been made of this issue of non-compliance by Mr Harmer in his submissions.
PN511
THE SENIOR DEPUTY PRESIDENT: Yes, it certainly is an issue before me. Yes, Ms Hannan.
PN512
MS HANNAN: Your Honour, I would just like to thank you for the opportunity of providing this further detail and I would just like to make a couple of points if I may? There were two phrases that Mr Harmer used repeatedly in his submissions, one that Mr Penning has just referred to, the substantive non-compliance with the directions issued by the Commission, which I believe now, Mr Penning has dealt with that issue very thoroughly and demystified this claim.
PN513
Mr Penning has provided a factual account of what evidence has been provided to Mr Harmer for Suncorp and to the Commission and has also identified factually the limited amount of material still to come. The second point that Mr - or one of the points that Mr Harmer raises concerns the phrase, "The overwhelming 65 per cent majority support of the agreement". That is under challenge, your Honour, and with respect, the assertion made by Mr Steyne's evidence, this is - - -
PN514
MR HARMER: Your Honour, with respect, sorry - look, there is an application for a statement to be made about compliance with timetable. Now, we are getting into substantive submissions.
PN515
THE SENIOR DEPUTY PRESIDENT: Yes.
PN516
MR HARMER: It just seems to be wandering a bit, with respect.
PN517
THE SENIOR DEPUTY PRESIDENT: Yes, I think you should confine yourself to the timetable, Ms Hannan.
PN518
MS HANNAN: I was half a sentence off the other point. In conclusion, if I could crave your indulgence, I think Mr Harmer has had a fairly long run this morning.
PN519
THE SENIOR DEPUTY PRESIDENT: Yes, but there is no - been no restriction on Mr Penning this afternoon.
PN520
MS HANNAN: No, your Honour. In that case, I will refer that later comment to him to finalise, but on the timetabling issue, the witness statements as already referred to by Mr Penning for those three witnesses were filed with Mr Harmer on 14 January. My report - sorry, my evidence and the report has already been dealt with in terms of its filing date. I just wanted to alert the Commission that in the week, 20 to 24 January, was a short week for myself and indeed, two days in that week I was on leave. Then we have the Australia Day holiday.
PN521
On 28 and 29 January 2003, there were further statements filed as Mr Penning has already referred to, for Ms Wilson and Ms Andrews and by way of assistance to the Commission, I seek to clarify that the witness statement of Ms Andrews was, to some extent, a replacement witness statement for an earlier witness statement that did not follow through concerning an earlier statement provided to the FSU at the time of the vote, on voting irregularities that FSU had been seeking to confirm with that witness.
PN522
In any event, at that point in time, there were further discussions with prospective witnesses. A further witness had already prepared a statement but advised our solicitors on 29 January that they would not be going ahead. As a result of the subject matter of that witness statement, on or about 29 and 30 January, I spoke to a number of other concerned employees who had concerns, particularly on the information sessions conducted at the Parramatta offices of GIO in Mr Tanner's presentation.
PN523
Those members were concerned to have their concerns known but not to have their names so identified and it was on that basis that those inclusions in my witness statement were made which were subsequently provided to Mr Harmer's office on 3 February. That is further supported, your Honour, at those latter points in my supplementary witness statement at points - effectively, 30 on to 33.
PN524
Now, at that same time that those concerns were seeking to be captured, in my further witness statement - or I should say later, further to that it was not until 3 February that one of the employees who had concerns about the way that those information sessions were addressed, came forward with an essentially, a two and a half page handwritten statement, and that was received by FSU on the 3rd, and that has been in for progressing since that time and we would imagine, very shortly, that that can be finalised.
PN525
I just wanted to provide to the Commission that there was a bit of to-ing and fro-ing with available witnesses at the time. There were witnesses who subsequently - or who came forward rather to replace other witnesses who were not prepared to come forward because they were concerned about repercussions. There was then the incorporation of their concerns into my evidence and latterly, this one individual coming forward saying: yes, I am prepared and I want to make a statement on it.
PN526
I think at the time, your Honour, as well, that it was envisaged that the supplementary material that was - or evidence, rather, that was sought to be put on myself, would also be, if you like, dealt with by a further affidavit - witness statement by Ms Linda Hawkes. Because of her current circumstances, she is confined to home. Her partner has effectively been ill for a number of weeks and is not mobile. She has three small children.
PN527
The position that was taken in consideration of that, there has only been one further supplementary witness statement put in by myself, which I suppose has sought to deal with the bulk of what we are saying on those supplementary issues. The only last point I would seek to make is that as Mr Penning has very thoroughly dealt with, the current dates that have been timetabled by the Commission were the 5, 12, 26 and 3 March 2003.
PN528
The proposed dates today, 26, 27 and 28 and I'm not sure about the 3rd, we don't see the disadvantage to the other side. Save for any questions that the Commission may have, I realise it is unusual, but I felt on this occasion, given the seriousness of Mr Harmer's application, that it was worthy to go into that detail of what was involved in essentially, 11 working days in the presentation of our case on behalf of the concerned GIOA employees, if it pleases.
PN529
THE SENIOR DEPUTY PRESIDENT: Very well, Ms Hannan. Mr Harmer.
PN530
MR HARMER: Thank you, your Honour. If the Commission pleases, just briefly in reply, I reinforce again, that the context of this reply again relates to the strike out or revocation, or a paring back, or timetabling issues, and we do seek to press all levels. The point was made by Mr Penning that the two employers have filed no statements and no outline of submissions.
PN531
Now, the reason for that is perfectly clear. The direction at issue, had a specific structure to them which involved properly, and it was a subject of discussions between the parties and the Commission that the material of the employees would be put on, in total - that is evidence, that their submissions would be put on in total, and in light of that there would then be a specified period of time as per the directions, for the employers to put on their statements and their evidence.
PN532
Indeed, it was the intention, even up to this week, for the employers to put on whatever they could when finally there was received the material which in correspondence which was set to us on 23 January and copied to the Commission, was indicated was still to come on behalf of the employees. That letter of 23 January indicated at that time, that there would be one further witness statement on Tuesday of the following week and that would be brief and no more than two pages, going to issues of casting a vote.
PN533
Now, subsequently, there were two additional employee witness statements on top of the original three. The material that we were then waiting for from Ms Hannan that we were advised was coming, arrived at our office about 5.30 pm on Monday this week. At that time we were still anticipating that we would be able to update all our statements and respond to that.
PN534
As I say, that proved to be something around a hundred pages of material and then we were advised the following day that there would be yet a further two statements and further submissions, and your Honour, to, in that context, point to the employers and say: well, you failed to comply with the directions. Very little choice short of putting on all our material without having seen that material.
PN535
So our non-compliance was a natural result of the conduct of the employees and the unions and again, in the spirit and intent of those directions, in our respectful submission, it was inevitable given what we were faced with over the last week. Secondly, the late notice of a strike out was another point raised. Certainly there is no question that the letter yesterday afternoon notifying of that, was sent at around 4.30 pm, as I understand it, to the union on behalf of the employees.
PN536
But the essence of the strike out was, and is, as put today, the invitation for the material put forward by the employees to be taken at its highest. It is material that has been compiled by the FSU on behalf of these employees. One would anticipate that they would be familiar with it and could argue what aspects of it warrant consideration in terms of discharging the onus under the relevant test.
PN537
The extent of prejudice in the circumstances by virtue of the fact that that notice was provided last night, in our respectful submission, is extremely limited. Indeed, in our respectful submission, it is a fairly standard approach for - whether you call it an interlocutory matter, or whatever - for the Commission to be invited to review this material and take it at its highest, as we do.
PN538
For Mr Penning to be able to, in relation to his own material in support of his own case, direct the Commission to those areas that satisfy the onus that is faced by the union in support of its application, in terms of the contention that there is no urgency in relation to this matter, as I've indicated, the Commission itself is familiar with the extensive background of disputation and attempts to transition employees going back well into last year at the time of the acquisition.
PN539
There had been numerous disputes before this Commission, notably the ..... dispute where again, the issue of importance of an integrated work-force and attempts to achieve that was emphasised by the companies. There has now been an extensive process surrounding this agreement, a vast majority vote, and on the face of the agreement, clear benefits. Again, as I say, in context of the objects of the Act, urgency around this matter which didn't seem to be disputed when we programmed for the directions, should not be capable, in our respectful submission, of being contested.
PN540
The next point is that the companies' case supposedly encapsulated, involves the notion that it just does not matter - as I understood the submission, what conduct a company participates in; what it does by way of misrepresentation; what is the conduct by way of the process leading up to the ballot and what is the genuineness underlying the valid majority. That is a total mis-statement of the case.
PN541
What we are saying, your Honour, is that there is a test to be applied. There is an onus to be discharged. The onus is a substantial one. The test relates to materiality and the ability of material put forward, taken at its highest, to have a real possibility of altering the result which is clearly there on the face of our material. So we don't accept that mis-statement of our position and we do say it is properly raised in the context of a strike out and capable of being dealt with by the Commission.
PN542
The next point is that all of the submissions should be dealt with at the conclusion of the case. Well, no doubt, they are matters that, if it is necessary, will be re-raised during the course of the proceedings, but as I've earlier indicated, was certainly open to the employees through the FSU today, to take the Commission to the higher water levels, if you like, of their material in light of the clear tests.
PN543
Not a difficult process, I wouldn't have thought, given that the union itself has been for a number of weeks now, working on that very material and has certainly had more notice of it than the companies. Again, there was reference to the companies not taking up the liberty to apply - opportunity. As I say, up until late Monday when we received the approximately one hundred page document, it was our genuine intent to try and get all our material on yesterday and see what we could do to salvage today.
PN544
We then learned during the day yesterday, that there was yet more to come on top of the fact that it was near well impossible to respond to all of that Monday material. As I say, certainly the parties were corresponding, but there are actually indications of what was to come, your Honour, and those indications were unilaterally departed from by the FSU on behalf of the employees.
PN545
To point to the companies as not complying in that context or not seeking liberty to come before the Commission to address timetabling, when we were relying on the very indications provided to us by the FSU, is quite inappropriate, in our respectful submission. The next point is the Steyne report was selectively attacked. Yes, it was. We tried to pick its highest point. The point where it concluded that in some way, the ballot could be challenged, consistent with the onus and real possibility test that we have outlined.
PN546
Again, your Honour, we see that consistent with the notion of a strike out, the notion that the material needs to be more thoroughly traversed and tested when it is taken here at its highest again, defies the very logic underpinning these interlocutory applications. The point was also made in relation to Debra Hannan's statements that we did not, as with the Steyne statement, take objection to them.
PN547
Well, there is no attempt as yet, as it has been properly pointed out, to tender that material. They are taken at their highest. We reserve our rights to object and could indeed, on these and other grounds, when or if we reach that point. But it is not a matter of objection to the material, it is a matter of taking the case as a whole, or the intentions as a whole, and striking it out because taken at their highest in totality, the evidence does not get with cooee of the test or the onus.
PN548
The next point made was is that it is not clear as to whether the Hannan statement or any other material is to be disaggregated. Your Honour, we respectfully submit that we did clearly state that is there is not a strike our or revocation of intervention, there should be a paring back of the material to those concerns properly raised by the employees when they had full opportunity to do so in support of the union case and as further put on here.
PN549
That should be treated, if you like, as pleadings governing, if you like, the genuine concerns of those employees and in that context, if that is decided in principle, then certainly it is more than possible to pare back, for example, Debra Hannan's material, most of which in our respectful submission, would fall aside and would reflect more the FSU's views rather than those originally identified by the three intervening employees.
PN550
That process, we say with respect, is not difficult and is fairly standard if there is an in-principle decision, to try and maintain the integrity of the Act, and particularly the prevention of inappropriate intervention contrary to section 43 of the Act. In terms of the contention that we elected to proceed not to cross-examination, and again, I have tried to avoid a to-ing and fro-ing over the exchanges between the parties, but it is instructed understanding, that indeed, the union itself yesterday was indicating that it did not desire to have its witnesses cross-examined without seeing any of our material at all.
PN551
I think that is fair enough, just as it is not fair for us to have to put on material where our witnesses have not seen all of the union's material or indeed, their submissions. So as I understood it, genuinely in discussions, both sides were taking the view that today had been lost due to the non-compliance with directions, notwithstanding the reasons underpinning it that turn on compliance.
PN552
The next submission put was that if the Commission was seriously minded to strike out or to pare back, the union would ask the opportunity to put on further evidence. Again, with respect, your Honour, that defies the very process of this strike out application as generally understood, and as otherwise applied by this Commission.
PN553
Indeed, particularly where you have got a strike out bill on two heads, one being lack of substantiative foundation when the union has had its opportunity to put its case forward, and non-compliance with directions, to then seek time to put on further material on further delay, as I say, just defies the whole logic intent of the process we are going through.
PN554
The non-compliance with the directions we clearly set out in the table attached to our 4 February letter. Again, I don't seek to traverse the detail, but if one juxtaposes the clear directions in transcript to what has been acknowledged as the position, and remains the position of non-compliance by the union, on behalf of the employees, it certainly is in our respectful submission, significant.
PN555
So your Honour, in our view, the Commission is in a position to either knock out the material because the onus is not even approached. The test is not even close to being satisfied. Alternatively, to pare it pack so that the integrity of section 43 of the Act is not unimpaired in a way that as I say, would render it a farce. Otherwise, your Honour, we are in the hands of the Commission if the Commission is minded to timetable the rest of the matter.
PN556
We certainly seek to do so. It may be appropriate to go off record if that is the case. Could I just say this, your Honour? If the Commission was minded to reserve on this particular matter and may seek to deal with our position extempore or otherwise, your Honour, but if the Commission was minded to reserve without prejudice to our submissions today, we would certainly still be minded to program on the assumption, if you like, but without prejudice to the outcome, that our application today is not successful and to move forward with presentation of our material notwithstanding that your Honour may still be deliberating on this application.
PN557
Now, your Honour may see that as inappropriate, but I just wanted to indicate that we are more than happy to run a parallel, if you like, with any proper consideration of the application we have made because we do certainly invite the Commission to review the material of the union in detail if it so desires. If the Commission pleases.
PN558
THE SENIOR DEPUTY PRESIDENT: Very well. What I intend to do, is to give some consideration to what I do and to enable that to take place, I will adjourn so that the parties are free to leave. I will resume at 4 o'clock.
PN559
MR HARMER: If it please the Commission.
SHORT ADJOURNMENT [2.55pm]
RESUMED [4.05pm]
PN560
THE SENIOR DEPUTY PRESIDENT: The substantial matter before the Commission is an application for certification of an agreement made under section 170LK of the Workplace Relations Act. The agreement is to be known as the Suncorp/GIOA General Insurance Business Integration Agreement, 2002. On 15 January 2003, three employees who would be covered by the agreement, were granted leave to intervene. They are represented by independent solicitors but are assisted by the FSU and the FSU is described as their agent.
PN561
On 15 January, I said, I think it would - before we go off record, might I make it plain for the record, that the permission to intervene, the leave to intervene which I have granted, is to the three named individuals. They elect to be represented by the FSU and through that, Mr Penning, but the leave is granted to the individuals, not to the FSU.
PN562
Directions for the conduct of the case were issued as follows on the same day. The three individuals granted leave to intervene are to arrange for the filing and service of all of the statements relating to the ballot and genuine approval issues, not later than close of business on 21 January. They are to arrange for the filing and service of all further statements on which they wish to rely and an outline of submissions not later than close of business on 29 January.
PN563
The applicant employers are to file and serve their statements and outline of submissions not later than close of business on 3 February. The matter will proceed to hearing on 5, 12 and 26 February and if necessary, a date in early March which will be advised to the parties in due course. The parties are at liberty to apply.
PN564
Today, the applicant employers, Suncorp/GIOA, have applied and as follows; A, that the case in opposition to certification of the agreement be struck out and the leave to intervene granted to the employees be revoked, or B, that the scope of the case in opposition to certification be reduced to that which genuinely represents the view of the three employees concerned as employees, or C, that the employees/FSU, not be permitted to put on further material outside of the timetable set by the Commission's directions of 15 January 2003 and be confined to the case as presently stated.
PN565
In support of the application, a statement of urgency was referred to. Further, it was submitted that; one, the Commission has a strike out power and two, there was a lack of foundation to the claim. The grounds in support were further developed and are summarised as follows: (1) there exists a strong prima facie case in favour of certification; (2) the employees/FSU, carry a heavy onus to overturn the strong outcome in a secret ballot and other evidence in favour of certification; (3) non-compliance with procedural directions; (4) the employees/FSU material filed to date is not takeable of materially impacting the issue of certification; (5) the FSU is in reality, utilising the employees as a basis to totally circumvent the legislative intention behind section 43 of the Act; (6) the scope of the assertions in opposition should be reduced to those genuinely put forward by the employees in their capacity as employees, assuming that the preferred course of strike out or revocation of intervention rights is refused.
PN566
The interveners for their part, submit essentially that they have endeavoured as much as possible to meet the time limits which were decidedly severe, but circumstances have prevented success. As to the motion to strike out, further time was sought to bring forward more evidence. There was little response on the day. I have decided to proceed with the matter as it stands. There are a number of general propositions to be made.
PN567
I agree that the Commission has power to strike out the case in opposition to certification, and revoke the leave to intervene. I note that there is a degree of urgency which was behind the fixing of hearing dates. The directions as issued were structured to assist both parties prepare their cases and to meet the restricted hearing dates.
PN568
It is accepted that the employers are not able to put on their documents without a complete set of material from the interveners. However, it was also true that at this stage, there is no reason for me to feel that the matter can not be completed in the altered time within the time-frame originally set down. With those propositions as background, I consider the three applications. The first, A, to strike out and revoke leave to intervene is the most dramatic.
PN569
The employers rely on the failure to comply with directions and lack of foundation to the claim. The first, I can not entertain. As intervening employees are to be bound by the agreement and thus have a direct interest which is not compromised by their failure to comply with directions. The second, I regard as the equivalent of striking out an action.
PN570
Recently, a Full Bench of the Commission in the case of Wright v Australian Customs Service considered the decision to issue a certificate under section 170CF(4) of the Workplace Relations Act in which the Commission below had stated that he had:
PN571
Formed the view that the appellant has no reasonable prospect of success at arbitration in relation to the ground that the termination was harsh, unjust, or unreasonable.
PN572
While the detail of the situation may not be completely similar, indeed they are not, the Full Bench had occasion to refer to some High Court authority that is of general application. Thus, at paragraph 25 of the Full Bench's decision, it is said:
PN573
In General Steel Industries Incorporated v Commissioner for Railways, New South Wales and others, General Steel, Barwick CJ accepted that the jurisdiction summarily to terminate an action is to be ...(reads)... necessary assistance from the parties to reach a definite and certain conclusion.
PN574
The Full Bench further said:
PN575
That in Fancourt and another v Mercantile Credits Limited, the High Court observed that the power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried.
PN576
Further, in Webster and another v Lampard, the High Court said that:
PN577
Nowhere is that need for exceptional caution more important than in a case where the ultimate outcome turns upon the resolution of some disputed issue or issues of fact.
PN578
I apply those observations to the present case and on that basis, I am not satisfied that I can reach a definite and certain conclusion on what is currently before me. It would therefore be dangerous to strike out or withdraw leave and I will not do so. I turn now to B. That, it will be remembered, involved the scope in opposition and in certification being reduced to that which generally represents the views of the three employees concerned as employees.
PN579
This does appeal, but I have briefly reviewed what has been put on the part of the three employees and their statements indicate that the material supplied to date by way of Ms Hannan's statements, are not in total, so far removed from the basis of the three employees opposition as to enable me to rule that the Ms Hannan material and the expert's statement are totally beyond the interest of the interveners as employees.
PN580
That is not to make the material automatically relevant. Insofar as the point made in that part known as D of the summary table, exhibit GIOA7I, is concerned, there are real doubts about relevance to an application for certification. That is but one example, but the point of relevance can be taken during proceedings in the normal fashion. I will not overlook the fact that there is a distinction between the needs of the employees and the needs of the FSU.
PN581
In this matter, I am only concerned with the former. It is also necessary to avoid the intervention being a back door to get around the provisions of section 43(2) and that will not be overlooked in the case. As for C, the FSU can not keep on adding on behalf of the interveners, material in the fashion that has occurred to date. It is tempting to say that the FSU has ignored the directions, but Ms Hannan has gone to some detail in an attempt to establish that the interveners have been as assiduous in the preparation of their case as could reasonably be expected.
PN582
I accept that, but notwithstanding that the point has been reached where a stay has to be put to the proliferation of material. I decide that the FSU based material is to be limited to what has been put or filed and served and what is explicitly foreshadowed to be filed and served by no later than lunch time on 7 February. That material specifically, is one further statement, one comparison document, a supplementary outline of submissions and that is all. No further material will be accepted without leave.
PN583
Although I have taken account of the submissions of Mr Harmer in reaching the conclusions above, I make a summary reference to the various grounds in support of the application that are set out above. In regards to 4.1, the position is that a case has been put on but it is too early to call it a strong case. That is not to deny that the position about practical effect of the vote is weighty.
PN584
4.2. This case is different from that in the matter of Gough and Gilmour Holdings Pty Limited v AFMEPKIU and another. In that decision, Commissioner Lawson said:
PN585
Finally, having regard to perceived deficiencies which might now be believed to have existed in the ballot process, the outcome of the secret ballot ...(reads)... against certification.
PN586
4.3. This has been considered. 4.4, I refer the parties to the comment on 4.1. 4.5. See the comment generally under that dealing with application B. Finally, to ensure completion of the matter, I am prepared to set aside 27 February in addition to those days which have already been prescribed as sitting days, whether it is used or not will, at this stage, be a matter for the parties.
PN587
I will now go off record to discuss the directions which should be issued in regard to the employer's material in light of the very directions that would be issuing the light of this decision to the interveners.
OFF THE RECORD
RESUMED [4.47pm]
PN588
THE SENIOR DEPUTY PRESIDENT: In light of the decision recently issued and in view of the conversations with the parties that have occurred immediately prior to this, I issue the following directions for the further future conduct of this case:
PN589
(1) the interveners are to file and serve their permitted material by lunchtime, namely noon, on Friday 7 February 2003;
PN590
(2) the witness statements on behalf of the employers are to be filed and served by close of business on Monday 10 February 2003;
PN591
(3) employer's outline of submissions is to be filed and served by noon on Tuesday 11 February 2003;
PN592
(4) what email is available may be used to expedite communications, especially in regard to Ms Hawkes. That facility is not to be abused;
PN593
(5) any statement in reply by Ms Hannan is to be filed and served by close of business on Tuesday 11 February.
PN594
I note that the interveners have sought leave to issue a summons to produce documents and that may be subject to further discussion and if necessary, argument between the parties. I believe that completes them all. I adjourn further proceedings in this matter until Wednesday next, 12 February.
PN595
MS HANNAN: Your Honour, just one final point. I did raise with Mr Penning - I don't know whether he has had an opportunity to raise it with Mr Harmer, because Ms Hawkes is coming from the Central Coast and would be the first lead witness, whether it might be possible, subject to the Commission's convenience, to start at 10 on the Wednesday.
PN596
THE SENIOR DEPUTY PRESIDENT: Could we not start at half past 9 and have someone else?
PN597
MS HANNAN: If it pleases, your Honour. It was just she was - that was the bigger witness statement to commence with.
PN598
THE SENIOR DEPUTY PRESIDENT: Yes.
PN599
MS HANNAN: But we are in your hands on that. That is okay. We can start with someone else.
PN600
THE SENIOR DEPUTY PRESIDENT: I would - given the potential number of witnesses we are going to attempt to deal with on Wednesday, I would prefer to start at 9.30.
PN601
MS HANNAN: If the Commission pleases.
PN602
THE SENIOR DEPUTY PRESIDENT: Very well, I adjourn these proceedings then until 9.30 on Wednesday next.
ADJOURNED UNTIL WEDNESDAY, 12 FEBRUARY 2003 [3.25pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
EXHIBIT #GIOA1 BRIEF OUTLINE OF OPENING SUBMISSIONS ON BEHALF OF THE APPLICANT PN63
EXHIBIT #GIOA2 APPLICATION UNDER DIVISION 2, FORM R29 PN80
EXHIBIT #GIOA3 STATUTORY DECLARATION FILED IN SUPPORT OF THE APPLICATION ON FORM R30, STATUTORY DECLARATION BEING THAT OF MR MARK
BLUCHER PN88
MFI #GIOA4I EXHIBIT BOOK PREPARED BY SUNCORP/GIO, CONTENTS OF WHICH ARE ELECTION EXHIBITS PN93
EXHIBIT #GIOA5 OUTLINE OF SUBMISSION IN FAVOUR OF STRIKE OUT OR REVOCATION OF INTERVENTION, FUTURE TIMETABLING ISSUES PN187
EXHIBIT #GIOA6 BUNDLE OF AUTHORITIES IN SUPPORT OF THE STRIKE OUT APPLICATION PN216
MFI #GIOA7I SUMMARY OF THE CONTENTIONS OF THE EMPLOYEES, FSU AS AT 04/02/2003 PN272
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