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Australian Industrial Relations Commission Transcripts |
AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825
Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
Tel:(03) 9672-5608 Fax:(03) 9670-8883
TRANSCRIPT OF PROCEEDINGS
O/N 11206
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
SENIOR DEPUTY PRESIDENT WATSON
C2004/343
C2004/6658
C2004/6659
APPLICATIONS FOR ORDERS TO STOP
OR PREVENT INDUSTRIAL ACTION
Applications under section 127(2) of the Act
by Charles Darwin University re alleged
unprotected industrial action in relation
to BP2003/670, BP2003/6549 and BP2003/6508
MELBOURNE
1.43 PM, WEDNESDAY, 17 NOVEMBER 2004
THIS HEARING WAS CONDUCTED BY VIDEO LINK AND RECORDED IN MELBOURNE
PN1
MR I. ARGELL: I appear on behalf of Charles Darwin University with MS R. TREVASKIS.
PN2
MS S. ROBERTS: I appear for the National Tertiary Education Industry Union with MR K. McALPINE.
PN3
MS C. GALE: I appear on behalf of the Australian Education Union with MR A. PERRON in Darwin.
PN4
THE SENIOR DEPUTY PRESIDENT: Any other - sorry, Mr Morehead, you are appearing by telephone at the moment.
PN5
MR E. MOREHEAD: I appear on behalf of AFMEPKIU.
PN6
THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Morehead. There is no-one else appearing in the matter. Very well. Yes, Mr Argell.
PN7
MR ARGELL: Thank you, your Honour.
PN8
These are three applications made by Charles Darwin University for orders under section 127, subsection (2) of the Workplace Relations Act. There are three different matters here.
PN9
THE SENIOR DEPUTY PRESIDENT: Yes. How do you want to deal with them, Mr Argell?
PN10
MR ARGELL: I would propose, your Honour, that given the fact that the industrial action notified is at or around the same time, and appears to be part of the same set of actions by the unions that the matters be put together.
PN11
PN12
SENIOR DEPUTY PRESIDENT: Yes. What is the position of the union parties in respect to that?
PN13
MR MOREHEAD: Excuse me, your Honour. It is Evan Morehead from the AMWU here. Look, I just am having trouble hearing the speaker.
PN14
THE SENIOR DEPUTY PRESIDENT: Yes. Mr Argell is suggesting that all three matters be dealt with together due to the commonality of industrial action and I am now seeking the view of the unions in respect to that. Yes, Ms Roberts.
PN15
MS ROBERTS: Your Honour, while we are not conceding that the actions are combined in any way we are happy for them to be dealt with together if that is convenient.
PN16
THE SENIOR DEPUTY PRESIDENT: Thank you. Ms Gale.
PN17
MS GALE: That is our position too, your Honour.
PN18
THE SENIOR DEPUTY PRESIDENT: Yes. And Mr Morehead.
PN19
MR MOREHEAD: Yes, we have no objection to that, your Honour.
PN20
THE SENIOR DEPUTY PRESIDENT: Yes, very well.
PN21
MR ARGELL: Thank you, your Honour. I think we could possibly take care of one of these applications fairly quickly, your Honour. The AFMEPKIU or the AMWU as it is sometimes - as it is known in the application, and this is matter 6658 of 2004, the AMWU has now written to the University in a letter dated 17 November advising withdrawal of the notice of initiation of the bargaining period dated 3 October 2003 and also withdrawing the notice of intended industrial action dated 12 November 2004.
PN22
THE SENIOR DEPUTY PRESIDENT: Yes.
PN23
MR ARGELL: And the letter goes on to say:
PN24
Please find enclosed, by way of service, a new notice of initiation of bargaining period.
PN25
Since there is no proposed industrial action by the AMWU because of this withdrawal we don't believe that there is any need for us to proceed with our application in that regard and we seek leave to withdraw it.
PN26
THE SENIOR DEPUTY PRESIDENT: Yes.
PN27
MR ARGELL: I can hand up copies of the AMWUs letter, your Honour.
PN28
THE SENIOR DEPUTY PRESIDENT: I think I have it - it has been facsimiled to me and that was a facsimile from Mr Morehead to Ms Trevaskis.
PN29
MR ARGELL: To Ms Trevaskis.
PN30
PN31
THE SENIOR DEPUTY PRESIDENT: Mr Morehead, did you hear that - Mr Argell is seeking leave to withdraw the application involving your union - matter 2004/6658. I take it you don't have any objection to him doing so?
PN32
MR MOREHEAD: Not at all, your Honour.
PN33
THE SENIOR DEPUTY PRESIDENT: Yes, very well. Do you wish to further participate in the hearing, Mr Morehead?
PN34
MR MOREHEAD: No, no, your Honour. I would prefer to withdraw if that is possible.
PN35
THE SENIOR DEPUTY PRESIDENT: Yes, that is possible, Mr Morehead so you are at liberty to withdraw and we will hang up the phone.
PN36
MR MOREHEAD: Okay. Thank you, your Honour.
PN37
THE SENIOR DEPUTY PRESIDENT: Good. Thank you. Yes, well, that was easy. What is the next one?
PN38
MR ARGELL: Well, in relation to the other two matters, I might take them perhaps in the order of alphabetical order, the AEU application perhaps, in the first instance, this is matter 343 of 2004 and - - -
PN39
THE SENIOR DEPUTY PRESIDENT: 343, yes.
PN40
MR ARGELL: - - - and in this case, your Honour, our application seeks an order from the Commission under section 127(2), that the industrial action proposed by the AEU, in its notice of industrial action dated 10 November 2004, not proceed. Now that notice of industrial action to which I refer is attached to our application and I see that you have it.
PN41
THE SENIOR DEPUTY PRESIDENT: I do.
PN42
MR ARGELL: The other parties, I assume, have copies - - -
PN43
MR McALPINE: No.
PN44
MR ARGELL: Do the other parties, do we want to provide - do you want to provide - can you provide copies - have you got extra copies for the AEU - - -
PN45
MS GALE: Of the initiation?
PN46
MR ARGELL: Notice of initiation - no, no. The notice of industrial action. I am sorry about this, your Honour, given the urgency of these hearings - so we - I understood we had sent that to the NTEU office but I don't whether they received it - - -
PN47
THE SENIOR DEPUTY PRESIDENT: Well, it appears that they haven't received it.
PN48
MR ARGELL: I can perhaps read it. It is a very short document - and the point I have to make about it - - -
PN49
THE SENIOR DEPUTY PRESIDENT: You don't have a copy?
PN50
MS GALE: Your Honour, I have a copy with me and I can share it with my friends.
PN51
THE SENIOR DEPUTY PRESIDENT: Yes. Thank you for that, Ms Gale. Yes, I think everyone at least can view a copy now, Mr Argell. The nature of the industrial action is participation in a 24 hour stoppage from 8 am today until 7 - I am sorry, one minute to 8 tomorrow, and the with-holding of all exam results upon completion of exams.
PN52
MR ARGELL: That is right, your Honour.
PN53
THE SENIOR DEPUTY PRESIDENT: Yes.
PN54
MR ARGELL: And there are a couple of points we want to make about this. First of all we want to make a point about the damage and harm that this industrial action, if it proceeded, will do to Charles Darwin University and to its students and, for that purpose, I would propose in a moment to call evidence from Dr Scott Snyder, the Executive Director of Corporate Services at Charles Darwin University.
PN55
THE SENIOR DEPUTY PRESIDENT: Yes.
PN56
MR ARGELL: Before I do though I wish to make the point that the - - -
PN57
THE SENIOR DEPUTY PRESIDENT: Has that action proceeded?
PN58
MR ARGELL: Well, Dr Snyder is probably in a better position to tell us that than anything but my understanding is that there are some persons participating in industrial action today. I am not too sure who they are or how many.
PN59
THE SENIOR DEPUTY PRESIDENT: Yes. Are you able to assist in respect of that, Dr Snyder?
PN60
DR SNYDER: Yes, your Honour, I can give some anecdotal evidence. I don't have exact figures or names, however, there were demonstrating - - -
PN61
THE SENIOR DEPUTY PRESIDENT: Well, I am really looking for general - there is some industrial by a number of - - -
PN62
DR SNYDER: That is correct.
PN63
THE SENIOR DEPUTY PRESIDENT: - - - of persons who you believe to be members of the AEU, or known to be members of the AEU?
PN64
DR SNYDER: Believed to be, given their banners. Yes.
PN65
THE SENIOR DEPUTY PRESIDENT: Yes. Very well.
PN66
DR SNYDER: I would also - - -
PN67
THE SENIOR DEPUTY PRESIDENT: I mean obviously if we need to get to any evidence as to this, we will. Yes.
PN68
MR ARGELL: That is right. Perhaps of more concern to us than that factor, which is a 24 hour stoppage today is the effect of the with-holding of exam results. And from Charles Darwin University's point of view this would have significant detrimental effects upon both university and upon the students that we have already wanted taken into account by the Commission in these proceedings.
PN69
THE SENIOR DEPUTY PRESIDENT: Yes.
PN70
MR ARGELL: We also say, in our application, that the AEUs industrial action is not protected industrial action. We say that for the reason that some of the objectives which ..... as being taken, are matters that would not be capable of being included in a certified agreement. Ostensibly we understand that the industrial action is designed to advance the union's aims in enterprise bargaining, which is currently under way.
PN71
THE SENIOR DEPUTY PRESIDENT: Well it is referrable to a specific bargaining period.
PN72
MR ARGELL: That is right and there is a bargaining period.
PN73
THE SENIOR DEPUTY PRESIDENT: And which - I have bargaining notices. What matters do you say, in the bargaining notice, do not fall within matters pertaining to the employment relationship.
PN74
MR ARGELL: Well, we say - and again, one needs to refer to the original notification of initiation of bargaining period by the AEU and I have copies of those, have you got those?
PN75
THE SENIOR DEPUTY PRESIDENT: Yes, thank you.
PN76
MR ARGELL: There is a document here I would like to tender, your Honour. It is headed, "Notice of Initiation of Bargaining Period" and attached - it is from the AEU - it attaches a draft TAFE division log of claims. It is a confidential letter and draft TAFE division log of claims.
PN77
PN78
MR ARGELL: We say, for instance, your Honour on page 7 of the attachment to the TAFE Division Log of Claims there is claim in there at I think at 13 - at the top of the page, third paragraph down:
PN79
Union subscriptions - where written authority is provided by the employer the employer will deduct union membership fees from employee's salary and remit them, along with a schedule of such contributions, to the union at fortnightly intervals.
PN80
And we say that it is well established now following the Electrolux decision and the decisions of this Commission subsequent upon it that that matter is not a matter pertaining to the relationship between employers and employees and that it could not be included in a certifiable agreement. Consequently, following the same logic as the Electrolux High Court decision any industrial action taken in support of this claim would, itself, be rendered unprotected industrial action.
PN81
THE SENIOR DEPUTY PRESIDENT: Is there anything else in there that you say falls within that category?
PN82
MR ARGELL: Sorry, your Honour?
PN83
THE SENIOR DEPUTY PRESIDENT: Is there anything else in the log which you say falls within that category?
PN84
MR ARGELL: Well, the law on this issue generally is still under development as you will appreciate but, given the state of our understanding at this stage, there is nothing else that I want to draw your attention to.
PN85
THE SENIOR DEPUTY PRESIDENT: Very well.
PN86
MR ARGELL: Nonetheless, one is enough - - -
PN87
THE SENIOR DEPUTY PRESIDENT: Yes.
PN88
MR ARGELL: - - - in my submission. And the industrial action being taken in support of that list of claims we understand would therefore be not protected industrial action under the Workplace Relations Act.
PN89
THE SENIOR DEPUTY PRESIDENT: Yes.
PN90
MR ARGELL: If I could turn to the NTEUs application, that is matter NTEU - our application in relation to the NTEU, that is matter 6659 of 2004. The - - -
PN91
THE SENIOR DEPUTY PRESIDENT: Sorry. 6659?
PN92
MR ARGELL: 59 of 2004. In those circumstances - in that situation the NTEU has notified industrial action to commence tomorrow, not today, on the 18th and that notice of intended industrial action has been attached to the application made by - - -
PN93
THE SENIOR DEPUTY PRESIDENT: That is the notice dated 12 November, is that correct?
PN94
MR ARGELL: Yes, your Honour. That is right. Now, again, the parties should have those. There is a notice signed by Mr McAlpine here. I assume he has a copy but it may be that the other union parties do not have a copy of that. Do you have a copy, your Honour?
PN95
THE SENIOR DEPUTY PRESIDENT: I do. Thank you.
PN96
MR ARGELL: And the details of the industrial action to be engaged in are set out in that letter, that, commencing on Thursday, 18 November, the NTEU officers and its employees and members of Charles Darwin University propose engaging in; 1) a ban on the transmission of student examine - of student results to any supervisor and/or in administration generally; 2) a ban on the certification of publishing or distribution of student results; 3) a cessation of work by any member of the NTEU who becomes aware that the University is with-holding any pay in connection with the taking of industrial action or alleged industrial action from the day on which each member becomes so aware being on or after 18 November 2004; and 4) a cessation of all work from 12.01 am to 11.59 pm on Thursday, 18 November 2004.
PN97
THE SENIOR DEPUTY PRESIDENT: Yes.
PN98
MR ARGELL: That is the end of the quote. The situation in relation to the NTEU is somewhat different to the situation in the AEU. We understand that the NTEU had originally served demands upon the University in relation to its enterprise bargaining claims which did include matters that we would now say, post Electrolux, are not matters pertaining to the employment relationship but we understand that, since that time, the NTEU has written to the University resiling from some of its original claims being those claims that we understand it intends to be those that might fall foul of the Electrolux principle. So - - -
PN99
THE SENIOR DEPUTY PRESIDENT: Well, what - - -
PN100
MR ARGELL: - - - we have no evidence that the NTEU is assisting with any claims that would be non-pertaining matters and therefore rendering the industrial action unprotected but my argument, in relation to the NTEU, is different.
PN101
THE SENIOR DEPUTY PRESIDENT: Yes. And what is that?
PN102
MR ARGELL: It is - it focusses particularly on item 3 of the notice of industrial action. It is ..... the formulation - I will read it again:
PN103
Cessation of work by any member of the NTEU who becomes aware that the University is with-holding his or her pay in connection with the taking of industrial action or alleged industrial action from the day on which the member becomes so aware being on or after 18 November 2004.
PN104
What, we say is that the only reasonable way to interpret that notice is to suggest - is to say that the union is hereby threatening that if their staff members are not paid for periods during which - their members are not paid for periods during which they engage in industrial action, they will take further industrial action to ensure such payment. And of course section 170AB of the Workplace Relations Act deals directly with these types of circumstances.
PN105
THE SENIOR DEPUTY PRESIDENT: I am sorry. 170?
PN106
MR ARGELL: 170AB.
PN107
MR PERRON: 187.
PN108
MR ARGELL: Sorry. 187AB.
PN109
THE SENIOR DEPUTY PRESIDENT: 187AB.
PN110
MR ARGELL: It is headed, "Organisations not to take action for payments in relation to periods of industrial action".
PN111
THE SENIOR DEPUTY PRESIDENT: Is that the character of the action?
PN112
MR ARGELL: Well, if that action had not - - -
PN113
THE SENIOR DEPUTY PRESIDENT: There is no demand for payment in respect to action is there?
PN114
MR ARGELL: Well, we can't read it any other way, your Honour. We can't make sense of that in any other sense. If the union is prepared to explain to us what else it might mean.
PN115
THE SENIOR DEPUTY PRESIDENT: Yes.
PN116
MR ARGELL: We might take a different position but at this stage we cannot see it as being anything other than a threat or - a cessation of work will follow upon any member becoming aware that the University is with-holding his or her payment in connection with the taking of industrial action. That is what is says and that is what we think it means. As I say, the union may have a different version of it but - I would like hearing it. But it is quite clear, under section 187AB of the Workplace Relations Act that it is contrary to the Workplace Relations Act for an organisation, officer, member or employee of an organisation to make a claim for an employer to make a claim to an employee in relation to a period during which the employee be engaged in industrial action, or to be, organise or engage in, or threaten or organise or engage in industrial action against the employer with intent to coerce the employer to make such a payment.
PN117
THE SENIOR DEPUTY PRESIDENT: Are you relying on A or B or both?
PN118
MR ARGELL: I am relying upon both, your Honour. I think it is both - in its present form, it is both a claim for the employer to make such payment, and in b) in 187AB(1) it is also clearly a threat to engage in industrial action should an employer with-hold payment for periods of industrial action.
PN119
THE SENIOR DEPUTY PRESIDENT: But it is not a claim at all, is it - it is a notification of industrial action so it would be difficult to characterise it as a claim for the making of payment, would it not?
PN120
MR ARGELL: Well, it is at least a threat and - - -
PN121
THE SENIOR DEPUTY PRESIDENT: Well, that is b), subsection b)
PN122
MR ARGELL: - - - the threat I believe, carries with it, an implied claim.
PN123
THE SENIOR DEPUTY PRESIDENT: Yes. Very well.
PN124
MR ARGELL: Well, if I say to you, "If you don't give me something, I will do this to you". That is a threat. But is it not also a claim. "You give me that thing".
PN125
THE SENIOR DEPUTY PRESIDENT: Very well.
PN126
MR ARGELL: What we say about that is that this is a reason also to be taken into account by the Commission in considering that it grant the orders that we seek. The fact that the industrial action, if it were to proceed, in the terms of the notification would be in breach of the requirements of section 187AB of the Workplace Relations Act. And - - -
PN127
THE SENIOR DEPUTY PRESIDENT: And if the union were to withdraw that - its notice of industrial action and give an undertaken not to take that industrial action, what would the position of Charles Darwin University be?
PN128
MR ARGELL: Well, I would take instructions on that but I think it would depend on one last point - - -
PN129
THE SENIOR DEPUTY PRESIDENT: Yes.
PN130
MR ARGELL: - - - which relates to section 170MM.
PN131
THE SENIOR DEPUTY PRESIDENT: 170MM.
PN132
MR ARGELL: - - - of the Workplace Relations Act, which talks about secondary boycotts and which, at 170MM(1) states that industrial action is not protected if a) it is engaged in concert with one or more persons or organisations that are not protected persons or; b) it is organised other than solely by one or more protected persons. And what we say about that is that it is quite clear that, although the action by the AEU is to commence with a 24 hour stoppage today and the action by the NTEU and the proposed and now withdrawn action by the AMWU was to start with a 24 hour stoppage tomorrow it is quite clear that these actions are being engaged in as part of a concerted campaign to pressure the University in enterprise bargaining negotiations and that each of it - - -
PN133
THE SENIOR DEPUTY PRESIDENT: Well, if it is protected, the Act permits that of course.
PN134
MR ARGELL: Well, that is right but if one of them is not protected - - -
PN135
THE SENIOR DEPUTY PRESIDENT: Yes.
PN136
MR ARGELL: - - - if I am right in saying that one of them is not protected then that affects the action of the other unions - - -
PN137
THE SENIOR DEPUTY PRESIDENT: That is correct.
PN138
MR ARGELL: - - - because they would be engaging in industrial action in concert with other persons who are not engaged in protected industrial action.
PN139
THE SENIOR DEPUTY PRESIDENT: Yes.
PN140
MR ARGELL: So our position - and to answer your question if the NTEU was to withdraw that item 3 it would solve one of the problems but not solve all of the problems. The other thing we would like you to take into account, your Honour, is the effects of the industrial action upon the University and the students at the University and, for that purpose, I propose with your permission to call Dr Scott Snyder.
PN141
THE SENIOR DEPUTY PRESIDENT: Well, before you do can I just ascertain from you, Ms Roberts and Ms Gale, what issues are in contest. Is there any issue as to the jurisdictional basis for a section 127 order, ie, that there is actual likely or probable industrial action - I am just trying to narrow - if there is no dispute as to some issues then we don't need to waste time and my second question to all parties is, is there any prospect of this matter benefiting from some conciliation between the parties; in respect of the first matter first - what is in issue - there is a jurisdictional issue, then there is a question of damage to the University and students.
PN142
Is there any contest as to, if it is conceded that there is probably or intended industrial action, is it conceded that that will result in some damage to the University students and then, thirdly, is the position contested in respect of the AEU as to a claim for a matter not pertaining and in respect to the NTEU, the 170 - sorry, 187AB point and, in respect to both organisations, the 170MM point?
PN143
MS ROBERTS: Thank you, your Honour. We will certainly - there is probable or impending industrial action. We will concede that. However, we would say that there is a jurisdictional problem with proceeding down the path of section 127 orders simply because we would say that in terms of the NTEU, that our action is protected action and that if the action is not - it is only if the action is not protected that the section 127 order can be granted. We would also like to draw the Commission's attention to the fact that the latest point, that Mr Argell raised, being the secondary boycotts point under section 170MM wasn't noted in the application which was circulated to us and so we would seek the Commission's direction but we would appreciate a short adjournment to consider that additional claim because it is not something that we had anticipated.
PN144
We would also - we will be arguing this when we come back, if the Commission pleases, being that the questions that the AHEIA in respect of section 187AB we would say, are not relevant to the question of whether the action is protected or not and, in fact, the AHEIA hasn't raised that issue in terms of whether or not it affects the question of whether the action is protected and, as we understand it, that can be the only consideration in terms of whether a section 127 order can be granted or whether that is the prohibition against a 127 can be granted - being able to be granted, is able to be - well, is able to be considered in that way.
PN145
THE SENIOR DEPUTY PRESIDENT: Well, it is a relevant matter in terms of discretion, is it not if the jurisdictional basis - - -
PN146
MS ROBERTS: It is certainly. Certainly, we conceded that it is a matter going to discretion, your Honour, but not to the question of protected action which, we say, our action would be protected. And the further - the final thing we would like to raise I suppose is that the question - I mean Mr Argell has raised that he wishes to bring witness evidence about the question of harm and again we are not sure as to how that goes to anything relevant before your Honour this afternoon. I mean the industrial action in - always causes harm of some kind.
PN147
In fact many might argue that is in fact its purpose in terms of causing some economic or other harm to the employer in order to bring about a result to bargaining. But I mean if we are going to hear evidence about what kind of harm is being - is happening to the University I am not sure how that is relevant and perhaps Mr Argell might wish to elaborate on that.
PN148
THE SENIOR DEPUTY PRESIDENT: Well, again, it is a discretionary consideration is it not.
PN149
MS ROBERTS: Yes. Certainly, your Honour. We will have submissions to make about that and may wish to call some of the people, or at least one of the people, in Darwin as well if that comes up. But we would seeking an adjournment to consider these issues and I am not sure -perhaps we could confer quickly about whether conciliation might be appropriate.
PN150
THE SENIOR DEPUTY PRESIDENT: Yes. Well, perhaps I will hear from Ms Gale first and then you can confer on that point. Ms Gale.
PN151
MS GALE: Your Honour, the AEU can confirm that our members are engaging in industrial action today and intend to continue that industrial action in relation to the ban on exam results from today. The union does not accept that there are any matters not pertaining to the employment relationship which are currently subject to the dispute and in fact I would like to tender a letter which was sent to the University today.
PN152
PN153
MS GALE: This letter, your Honour, confirms advice which had been given to the University previously verbally, during negotiations and it describes the current state of negotiations and indeed things have moved a long way since the original log of claims, not only in terms of the case law but also in terms of negotiations at the University and, in the interim, it is our view that the matters currently in dispute between the parties and the matters to which today's industrial action and the prospective and threatened industrial action proposed by our members relates, are quite narrowly matters which either are already matters agreed between the parties in the draft negotiations or in terms of outstanding matters the issues of salaries and allowances which we say are Heartland pertaining matters.
PN154
In this context, we say that harking back to a log of claims which may have described the state of negotiations at the outset is of little use in actually determining what are the issues between the parties today and what are - and with respect to what issues is the industrial action being taken. We say that there is no non-pertaining matter, which is the subject of either the union's current claims or the industrial action which is being taken. In that context we say that there is no issue relating to the - on the basis of which it could be found that this action is not protected.
PN155
It has been properly authorised, it follows extensive - extensive negotiations and it has been properly notified, and we say that it is protected industrial action. In relation to the 170MM issue we concur with the NTEU this is a new issue that was not included in the notice for today's proceedings and we would seek an adjournment in relation to that. And, in relation to the issue of damage to the University and students, we would be contesting that issue if we get that far.
PN156
THE SENIOR DEPUTY PRESIDENT: And in - sorry, do you want to confer in relation to the benefit, if any, of conciliation at this point or do you wish to jointly confer, including Mr Argell and Ms Trevaskis?
PN157
MR McALPINE: Your Honour.
PN158
THE SENIOR DEPUTY PRESIDENT: Yes.
PN159
MR McALPINE: Look, I am always loathe to say - I am always loathe to say that there is no point in conciliation but you know I think we would be wasting the Commission's time if we suggested - - -
PN160
THE SENIOR DEPUTY PRESIDENT: Well, if that is your view - - -
PN161
MR McALPINE: - - - if we suggested that there was much point in conciliation. We have bargaining with this employer for 13 months and they have made the worst pay offer in the country of any University. That is of concern to our members. The University has made it absolutely clear from their own point of view, point blank, that they won't increase their pay offer; our members are not prepared to be paid up to 15 per cent less than people at other universities. The issues are pretty clear. That is what they are on strike about. And if the University indicated that they had a new offer to make then I think conciliation would be very useful. I suspect it wouldn't' be very useful with the people down here in this room.
PN162
THE SENIOR DEPUTY PRESIDENT: Yes.
PN163
MR McALPINE: It would be more useful with people in Darwin, but, realistically the idea that as adept as the Commission may be at assisting the parties I really don't think this - they can overcome or prevent continuation of what is, from our point of view, last resort industrial action.
PN164
THE SENIOR DEPUTY PRESIDENT: Well, when you say, "they", are you making an application for a Full Bench?
PN165
MR McALPINE: No. Sorry. No, no.
PN166
THE SENIOR DEPUTY PRESIDENT: Very well. Mr Argell.
PN167
MR ARGELL: Well, thank you, your Honour. I would have been more reluctant to dismiss the prospect of conciliation. It seems to me that, as I have suggested, one of the main concerns of the University is the significant damage that would be done to the welfare of students particularly through the ban on the transmission of examination results and I understand that there have been steps taken in the past by unions and including the NTEU to ameliorate the damage that is done - the harm that is done to students by the establishment of exemptions, committees and so forth. And I would have thought that there might have been some prospect of some compromise in relation to that so that the innocent third parties are not dragged into this - this fight too much.
PN168
THE SENIOR DEPUTY PRESIDENT: Well, Mr McAlpine is of a view that any compromise would need to be based on some movement if you like from the University from a position described by him as absolutely clear that it won't improve its pay offer, absent that Mr McAlpine is suggesting little utility in further consideration. Do you have any instructions in relation to that - to that issue?
PN169
MR ARGELL: In which case we - I have no instructions in relation to that. All I can say is I am disappointed that that turns out to be the situation, but nonetheless it is the situation and if Mr Mcalpine is not prepared to talk then - - -
PN170
THE SENIOR DEPUTY PRESIDENT: Well, let us be clear. His position was that the union is not prepared to talk whilst the University is maintaining a position that there will be absolutely no change in the pay offer.
PN171
MR ARGELL: I have no instructions so I would have to talk to Dr Snyder.
PN172
THE SENIOR DEPUTY PRESIDENT: Yes. Very well. What does he say in relation to the application for an adjournment to consider the - one brief adjournment, to consider the 170MM?
PN173
MR ARGELL: Well, I have no objection. I have no objection to that.
PN174
THE SENIOR DEPUTY PRESIDENT: Yes. Very well. Is it possible that you could obtain some instructions from the University in respect to the possibility of conciliation, given Mr McAlpine's position, or the union's, that that would have no utility if the University was of a position that there would be simply no improvement in the pay offer.
PN175
MR ARGELL: Well, I could - - -
PN176
THE SENIOR DEPUTY PRESIDENT: And whilst we have that adjournment to allow the unions to consider, or the advocates to consider the MM point.
PN177
MR ARGELL: I certainly could try to do so. The first thing I might do with your permission is ask Dr Snyder to call me on my mobile. I will give him a number.
PN178
THE SENIOR DEPUTY PRESIDENT: Well, if the unions want to vacate the rooms and you can talk to him - via this device, Mr McAlpine - - -
PN179
MR ARGELL: Yes.
PN180
THE SENIOR DEPUTY PRESIDENT: Is 20 minutes sufficient?
PN181
MS GALE: Fifteen.
PN182
THE SENIOR DEPUTY PRESIDENT: Fifteen. Fifteen minutes, very well. I will adjourn til yes, 2.35. Sorry, rather than wave at your colleagues, Mr McAlpine, is there something you want to convey?
PN183
MR McALPINE: I was just showing that I do have my mobile phone to you - to my colleagues.
PN184
THE SENIOR DEPUTY PRESIDENT: All right. Well, if the union parties could leave the room, Mr Argell can discuss what has been put with Mr Snyder and if there is any possibility of conciliation you might discuss that with the union parties before we resume. I will resume at 25 minutes to 3.
SHORT ADJOURNMENT [2.19pm]
RESUMED [2.40pm]
PN185
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Argell.
PN186
MR ARGELL: I think the question to me, your Honour, was about conciliation.
PN187
THE SENIOR DEPUTY PRESIDENT: Yes.
PN188
MR ARGELL: I have spoken to the university about that and their view is that - they believe that they have already made significant concessions in bargaining that bring them very close to what they understand the union was asking. They, however, believe that any discussion about further concessions would have to take place in the context of discussion about the entire agreement and there are issues about timing of increases; indeed, length of agreement, which has become an issue, I think recently, and, of course, all the other aspects of what is quite a comprehensive set of negotiations.
PN189
In short, while they are prepared to keep discussing things with the unions, as long as there isn't the threat of impending industrial action, their view is that they don't believe that this is a matter that is likely to be fixed immediately by a half hour conciliation here. It is probably only - it is probably - the only thing that is likely to be valuable is longer term continued discussions.
PN190
THE SENIOR DEPUTY PRESIDENT: Very well. And can I ask you did you obtain any instruction - I didn't ask you to - in relation to AE1, which seems to modify the nature of the agreement sought by the AEU?
PN191
MR ARGELL: Well, not specifically, your Honour, but I agree that it does modify the claims being made by the AEU. Whether one can retrospectively - I know there is a claim in there that this is simply confirming something that has already been said, but it is unclear to me that that is the case. Whether you can start striking over three things, one of which is not a matter pertaining, and at some point while the strike is already under way - so it is not really about those three things, it is only about those two things. I am not too sure - I am not too sure it is open to you to do that.
PN192
THE SENIOR DEPUTY PRESIDENT: Yes.
PN193
MR ARGELL: What I propose to do with your permission is to proceed to present our case and to call Dr Snyder.
PN194
PN195
MR McALPINE: Your Honour, it might be best out of an abundance of caution if we suggest to Mr Hansen that he leave the room.
PN196
THE SENIOR DEPUTY PRESIDENT: Yes.
PN197
MR McALPINE: It is not our intention to call any witnesses at this stage but it might - - -
PN198
THE SENIOR DEPUTY PRESIDENT: Depending on what falls from - - -
PN199
MR McALPINE: Yes, it might be necessary.
PN200
THE SENIOR DEPUTY PRESIDENT: Yes. Mr Hansen, I wonder if you could leave the room while Mr Snyder gives evidence. Yes, Mr Argell.
PN201
MR ARGELL: Thank you. Dr Snyder, could you explain your involvement with the process of enterprise bargaining, just so we have an idea of where you sit in that exercise?---Certainly. I am the Executive Director of Corporate Services in the university and in that capacity I head the university's enterprise bargaining team.
PN202
And could you just briefly summarise to us where things are at in enterprise bargaining at Charles Darwin University?---In terms of where things are at the university and the unions resolved the majority of their issues earlier in the year, February-March sort of a timeframe, and for the ensuing period have focused principally on the salary issue. The current state of play is several weeks ago the unions requested that we direct a little bit more focus to try and resolve the matter before Christmas. The unions proposed an offer - a salary offer that agreed with out 10 per cent pay increment structure and proposed that we amend that with a $2000 bonus payment. In their words if that bonus payment was given, then that would be acceptable to staff members. The
**** SCOTT DERMOT SNYDER XN MR ARGELL
university being late in a budget cycle and a relatively poor university, small regional, is unable to meet the $2000 bonus. We proposed that we would be able to offer $1200 as a signing bonus provided that bonus was split over the December-January period so that we could budget for a portion of that in next year. As far as the university understands the majority of other issues are agreed to and we have been solely focusing on the salary issue and anything that we might trade off, such as leave, around the salary issue.
PN203
And how long is that 10 per cent, plus whatever sign on bonus it is, how long is that agreement to run for; is that the case?---That was - in the university's offer for the $1200 bonus and the 10 percent, that was to run to the end of 2006.
PN204
Could you explain to us what you think the impact of the proposed industrial action by the AEU and the NTEU would be?---Okay. The industrial action has two bases. One is a 24 hour stopwork, the other is withholding of grades. The 24 hour stopwork, this would be the third or fourth such action this year. The university's view is to treat these very softly. It is after all people's right to put their view forward. It is not correct to say we are not concerned with it, but we certainly understand why people would do that and we could make arrangements to accommodate that. The withholding of grades issue is a completely different kettle of fish and to understand the impact on that you have to recognise that the university teaches both higher education and vocational students within the Territory. We do about 85 per cent of all training within the Northern Territory. We do almost all the training in the traditional trades. Most apprentices come here. So to understand the impact on withholding grades you need to consider the two sectors separately. In the higher education sector it has been pointed out in the past by the university that access to scholarships, the ability to graduate, find a job, the ability to know if you are continuing in study or apply to another institution, are all impacts that the student must wear. In the vocational section the impact of withholding grades are far more widespread. When a - I will split between apprentices and other vocational students. For apprentices, once a student receives a grade and that grade is conveyed to an employer that apprentice is usually able to immediately upgrade his apprenticeship and receive a wage increase. Apprentices receive very little money so any wage increase is, I am sure, welcome. For the employer, having an apprentice with a higher qualification allows them to place that worker into a different role and usually the apprenticeships are - well, not usually, always they are very tightly planned and
**** SCOTT DERMOT SNYDER XN MR ARGELL
co-ordinated. So for a small company, say an automotive shop, to be able to plan its workforce it has to know when that apprentice will progress. Similarly, there are organisations that take on apprentices to provide the training but have no intention of retaining the apprentice after the apprentice has rolled off. For the apprentice to remain an apprentice for an extended period simply because the grades are withheld provides a significant impact on those small firms. We have had numerous complaints from the very small amount of tardiness in our grades just as a matter of business over the years. So, for example, Alcan quite recently spoke to the university about its unhappiness with just being marginally late with grades. From the bigger perspective of that altogether vocational education and training is funded from the Territory Government. The Territory Government has a relationship with the Commonwealth to achieve the funding. There are specific targets that are done on an annual basis. In order for us to achieve our targets we must have the grades of the students that we are educating, we must have them by the end of the year. It is typical for the university to only have about half of its profile resulted at this stage of the year and for the next six weeks to be directed towards receiving VET results. If we do not get the VET results certainly it impacts on our funding, but to be honest we are paid usually in advance. What it really affects is the Northern Territory Government's ability to honour its funding agreement with the Commonwealth. So withholding grades in the VET sector influences - impacts the students, it impacts small industry, it impacts the Northern Territory Government in a way that is in order of magnitude greater than those students in the higher education sector.
PN205
Thank you. I have no further questions.
PN206
PN207
MR McALPINE: Dr Snyder, my name is Ken McAlpine; I am representing the National Tertiary Education Union. Now, I am advised, and perhaps you could tell the Commission - but I am advised the due date for the sending out of results to VET students is not until 13 December; is that correct?---That is correct.
**** SCOTT DERMOT SNYDER XXN MR McALPINE
PN208
And I am also - - -?---However, when you are attempting to enter 50,000 grades the ability to do it in a day is somewhat beyond us.
PN209
Yes, thank you. And the due date - in fact the date by - before which higher education results are not to be released is until - is some days after that; is that correct?---I am not sure of the exact date but the timeframe is correct.
PN210
Yes. So there are no student results being withheld from students now or until 13 December as a result of this industrial action; is that correct?---That would be incorrect. On the VET side education is not as structured as higher education, so VET students come in at various times and for various lengths. So, for example, if you wish to receive a certificate to operate a chainsaw or drive a forklift it is a 40 hour course. You enrol for a week; at the end of the week you need that certificate. Given that we have - given the number of results that we are currently requiring my understanding would be - or my assumption would be that, yes, there is an impact right now from withholding results.
PN211
But in terms of the generality that you were referring to earlier it is not the same thing, is it? We are not talking - the results in general are going to be not available before 13 December; that is correct, isn't it?---I am sorry, I lost the end of your question.
PN212
Well, the results - while there are some courses - short courses which may have results before 13 December, that is going to be a very small minority of student results, isn't it?---I am not in a position to comment on the breakup of whether results are long or short. I will say that VET does not occupy the same structured timeframes as higher ed and students come and go monthly, weekly, so while - - -
**** SCOTT DERMOT SNYDER XXN MR McALPINE
PN213
Yes, all right. Now, you have referred to the apprentices though, for example. The apprentices are not in that position, are they?---Apprentices are in that position more than anybody else. apprentices receive call up to the university on a monthly basis, so if you are an apprentice you have a firm training program that is negotiated with the employer and the university, your course co-ordinator and yourself and you may be called into the university, not for a term or a semester, but for a - you know a month or whenever the training is available. So there is no general case for an apprentice.
PN214
And that training, of course, isn't affected in the slightest by this industrial action, is it?---Only for today.
PN215
That is right?---However, the holding of grades stops the student from progressing after they have completed their training.
PN216
So when I asked you the question that the VET results were not available to 13 December you answered yes to that question. About who are we speaking when we say that the VET results are not available till 13 December?---Oh, that would be - was referred to I suppose as O1J, the standard recurrent certificates. Vocational education and training has around 24 different funding categories, from memory, and again there is - while the bulk of these are in normal certificates, there is nothing normal about VET when you are delivering into remote communities, indigenous communities. With apprentices we deliver at 58 sites across the territory, there is no general rule. So, okay, I take your comment to have meant the normal - or if there is such a thing - certificate under funding category O1J, which is the bulk of our delivery, but it is certainly not the entire case.
PN217
Okay. So my question earlier about the majority, in fact, it would be fair to describe the bulk of delivery is not affected as far as students receiving result in VET until 13 December?---If that was taken over the entire year I would agree. What results remain to be entered I am not sure.
**** SCOTT DERMOT SNYDER XXN MR McALPINE
PN218
Okay. And in relation to higher education we are clear that it is not until after 13 December that the student results are - can, in fact, be released to the students?---That is my understanding. That is the timeframe; again, I don't have the specific date.
PN219
And presumably, given the title of your position, you are reasonably experienced as an industrial relations and employee relations practitioner?---Not as experienced as someone who does it as their sole job, but I have some experience, yes.
PN220
So if the employees - can I ask you if the employees, for example, thought that they were after a 15 per cent pay increase by June '06 - - -?---Mm.
PN221
- - - how - and given that the university has said that it won't increase its offer, how do you think the employees are going to achieve what they want through bargaining without taking industrial action?---I will make two comments. First of all, what has been transmitted to all staff by your elected representatives is that you offered to accept the 10 per cent pay increase with a $2000 bonus. That was e-mailed to all staff by one of your elected representatives. Secondly, we have moved; we have never indicated that we would not continue to negotiate and, in fact, I faxed all the unions a week ago to say return to the table after they swore and walked out after our last agreement, and the response was industrial action and here we are.
PN222
Now, if - - -?---So I disagree with your statements.
PN223
Perhaps if you could answer the question I asked. I asked the question that if, for example, employee were seeking an increase to 15 - of 15 per cent as part of this agreement by June 2006, and given that the university has, in fact, said that it is not prepared - in fact, I think the words are "cannot increase its offer", how would - how do you think the employees are going to achieve what they want other than by taking industrial action. I am really concentrating on the last bit of that. How do you think the employees are going to achieve what they want other than by taking industrial action?---Through compromising a range of conditions.
**** SCOTT DERMOT SNYDER XXN MR McALPINE
PN224
So in order to achieve say a 15 per cent pay increase what sort of conditions do you think they would need to compromise?---My understanding from staff is conditions they would be unprepared to compromise which is why they came back at 10 per cent, so the best example of that is the 50 per cent increase in annual leave that our staff receive over a normal university, and in our consultation with staff they are adamant that they would be much happier with a 10 per cent pay increase and to retain their leave.
PN225
So what you are suggesting is that they could achieve what they want by, for example, giving away two weeks' annual leave?---I don't believe the university would be prepared to actually look at that.
PN226
No, okay?---You are asking a hypothetical question because you have already - your unions have already broadcast that they were happy to accept the 10 per cent increase.
PN227
THE SENIOR DEPUTY PRESIDENT: Yes, just one moment?---We have consulted with staff and the only sorts of conditions they would have to give away appear to be more important to them than the 15 per cent pay increase.
PN228
Yes, just one moment. Mr Argell is making an objection.
PN229
MR ARGELL: I just don't see where this is leading us, your Honour. Is Mr McAlpine engaging in negotiations with Dr Snyder now or - - -
PN230
THE SENIOR DEPUTY PRESIDENT: Well, I am not entirely sure. I was surprised you raised the issue of where negotiations were at in your examination-in-chief, Mr Argell.
PN231
MR ARGELL: Well, I just wanted to put the thing in context but this is a lot more detailed than that.
**** SCOTT DERMOT SNYDER XXN MR McALPINE
PN232
THE SENIOR DEPUTY PRESIDENT: Yes.
PN233
MR McALPINE: Well, it is a lot more detailed because the answers I am getting, your Honour, are not really - what I am suggesting to Dr Snyder is that in fact other than by taking industrial action the employees and the unions are not going to achieve what they want and the question of discretion has been raised and maybe I won't pursue the matter further; it is a matter for submissions but the point is essentially about whether or not there is any other way of bringing the parties together, which is our purpose, other than industrial action.
PN234
THE SENIOR DEPUTY PRESIDENT: I think it is more a matter for submission than Dr Snyder's view.
PN235
MR McALPINE: Very well. What do you understand, Dr Snyder, to be the purpose of industrial action?---The purpose of industrial action - there are a variety of purposes. What is the - the purpose that is of most interest to me is to gauge staff sentiment as to how far away or how close we are to the agreement. So if you have 932 FTE of staff and 20 engaged in action, then to me it says that we are reasonably close. I suppose other actions are to hurt the employer. I don't consider hurting third parties, who are not in a position to actually provide additional remuneration, to be a purpose, but I gather that there would be those two things; one, to gauge whether people agree and number two, to see - to damage the employer.
PN236
Yes?---As was put earlier.
PN237
Now, you are not aware of any arrangements that have been put in place to give students exemptions in respect of any exam or student results bans, are you?---None of that has been transmitted to me.
PN238
Well, no, you would be aware of them if they had been - you are not aware of - - -?---That is correct, I am saying, no, I am not aware of any.
**** SCOTT DERMOT SNYDER XXN MR McALPINE
PN239
No, you are not aware. So, in fact, those arrangements could be being put in place right now or could have already been put in place without you being aware of it?---Anything is possible. I find that a bit of a long shot given my position within the university, but anything I suppose - it is possible.
PN240
But, for example, it wouldn't - obviously an exemptions process by the union in any case where there was potential hardship, wouldn't involve the university, would it, it would involve the union and maybe the students association?
PN241
MR ARGELL: Well, again, your Honour, can I just say is Mr McAlpine telling us that there is an exemptions provision, or is he merely speculating?
PN242
THE SENIOR DEPUTY PRESIDENT: Well, I think Mr McAlpine, if you are going to be bringing evidence of there being an exemption arrangement you should put it directly to the witness.
PN243
MR McALPINE: Well, I put it to you that there is an exemption arrangement that has been established today?---While we sit here?
PN244
I don't know about while we sit here but before we were sitting here.
PN245
MR ARGELL: Well - - -
PN246
THE SENIOR DEPUTY PRESIDENT: Between - is there any further detail to that?
PN247
MR McALPINE: Well, all right, I will - - -
PN248
MR ARGELL: We know that Dr Snyder doesn't know anything about it, he has told us that he doesn't know about it, so what - - -
**** SCOTT DERMOT SNYDER XXN MR McALPINE
PN249
MR McALPINE: Yes, that is - no, no - well, I asked him whether he would be aware of such an arrangement and whether it was possible that he wouldn't be aware of such an arrangement.
PN250
THE SENIOR DEPUTY PRESIDENT: Yes.
PN251
MR McALPINE: And he acknowledged that anything as possible. I think that was the answer.
PN252
THE SENIOR DEPUTY PRESIDENT: Yes. Will you be later bringing evidence as to the establishment of that arrangement?
PN253
MR McALPINE: Well, we are not really in a position to bring evidence. What we are in a position to - perhaps I should keep this for submissions, but the position we have established is that overwhelmingly, certainly in relation to higher education, which is the NTEUs area of coverage and the areas affected by the NTEU, we have established that there is - that the results issue doesn't arise until the middle of December and all I am putting to the witness is that he wouldn't necessarily be aware of whether or not there were any exemptions arrangements that had been put in place.
PN254
THE SENIOR DEPUTY PRESIDENT: Yes.
PN255
MR McALPINE: That is as far as I wish to take it at this stage.
PN256
THE SENIOR DEPUTY PRESIDENT: Very well. Ms Gale.
PN257
MS GALE: I have no further questions, your Honour.
**** SCOTT DERMOT SNYDER XXN MR McALPINE
PN258
PN259
MR ARGELL: Just the question about the 15 per cent by June 2006; has that demand been made upon Charles Darwin University?---That is a number that has been kicked around. It wasn't the initial demands of any of the six unions in their log of claims, nor was it our counter offer but it is a figure that has been bandied around. However, as I said, the last figure transmitted by the unions was 10 per cent.
PN260
Thank you.
PN261
PN262
THE SENIOR DEPUTY PRESIDENT: Yes Mr Argell.
PN263
MR ARGELL: Just in complete, your Honour, I just want touch upon one last point that was made by Ms Rogers, I think.
PN264
THE SENIOR DEPUTY PRESIDENT: Just a moment. Do you have any further evidence you wish to bring?
PN265
MR ARGELL: No, I have no further evidence.
PN266
THE SENIOR DEPUTY PRESIDENT: You were going to submissions, were you?
PN267
MR ARGELL: Well, I was just going to - yes, I was going to complete my submissions.
PN268
THE SENIOR DEPUTY PRESIDENT: Yes, very well. Is there any evidence either of the unions wish to bring? No.
PN269
MS ROBERTS: No, your Honour.
PN270
THE SENIOR DEPUTY PRESIDENT: No. Very well. Go ahead.
PN271
MR ARGELL: Just the point Ms Rogers - - -
PN272
MS ROBERTS: Roberts.
PN273
MR ARGELL: - - - Roberts made, the question about a jurisdictional objection - a jurisdictional impediment to you. You should be aware of the fact that section 170MT, the immunity provisions in the Act have been repealed by act number 11 of 2004.
PN274
THE SENIOR DEPUTY PRESIDENT: They were reinserted into section 127(5)(a), Mr Argell.
PN275
MR ARGELL: Were they, your Honour.
PN276
THE SENIOR DEPUTY PRESIDENT: That was the Act which introduced, if it wasn't already available, the interim orders under section 127.
PN277
MR ARGELL: Yes.
PN278
THE SENIOR DEPUTY PRESIDENT: And the provision was shifted to - - -
PN279
MR ARGELL: 127(5)(a), I see it now.
PN280
THE SENIOR DEPUTY PRESIDENT: - - - 127(5)(a), yes.
PN281
MR ARGELL: Okay. Then I have no further submissions. Thank you.
PN282
THE SENIOR DEPUTY PRESIDENT: Well, I am not sure where you have left me. So what do you say is the position in respect to AEU, that - is there any matter not pertaining now? You were saying you were wondering whether a - - -
PN283
MR ARGELL: We don't think - - -
PN284
THE SENIOR DEPUTY PRESIDENT: - - - whether a notice can be amended.
PN285
MR ARGELL: Yes, we don't think you can change horses that way in midstream, just as I don't think you can set up exemption committees in midstream. They may or may not apply but these actions are designed clearly to remedy a deficiency that the unions acknowledge and the notice having already been given, and indeed, some of the industrial action having already commenced, we submit that you can't do that, it doesn't fix the problem and that the action remains unprotected action and, therefore, it is open to the Commission to exercise the discretion that it has to make orders under section 127(2) and also leaves the NTEU in the same position.
PN286
THE SENIOR DEPUTY PRESIDENT: Very well. Well, assuming I accept that AEU has - or members of the AEU have taken industrial action, not protected, because it relates to a claim for an agreement containing a matter not pertaining. If I am against you on the 187AB point in respect to the NTEU what evidence is there of - in respect of 170MM, any action in concert between the AEU and the NTEU?
PN287
MR ARGELL: Well, I hadn't thought it was a matter in contention that the unions are engaging in - - -
PN288
THE SENIOR DEPUTY PRESIDENT: Well, I did ask - - -
PN289
MR ARGELL: Yes.
PN290
THE SENIOR DEPUTY PRESIDENT: - - - speak to the unions and the only matter not in contention was that there is the jurisdictional basis for an order in that there is - it is conceded there is industrial action occurring.
PN291
MR ARGELL: Well, that is right. Look, it is not a coincidence that this is all occurring at the same time, that the resolutions of the AEU and NTEU are in broadly similar terms, that they are, in fact, negotiating towards an agreement which would cover both of those - to which both of those unions would be a party. What we say is that it is available on the face of what is before you for you to conclude that the industrial action of the one party is being taken in concert with the industrial action of the other party - or the other unions and, therefore, 177 is enlivened.
PN292
THE SENIOR DEPUTY PRESIDENT: So you say I am to infer from the coincidence of the action arising out of negotiation of the same claims, that there is some action in concert?
PN293
MR ARGELL: Yes. I don't know how else we can prove it. I don't know how else we would be able to prove it.
PN294
THE SENIOR DEPUTY PRESIDENT: Presumably by reference to any evidence that might exist from - or what has been said or done or written in negotiations, if anything. Yes.
PN295
MR ARGELL: Well, what I say is that the materials before you provide sufficient evidence of the fact that this is all part of a combined campaign by at least two unions - there was a third involved till just recently, with similar aims.
PN296
THE SENIOR DEPUTY PRESIDENT: What is the position in respect to 187AB? Mr McAlpine says that doesn't affect protected action. If there is an issue about action of that kind then it is a separate matter amenable to separate relief, specifically that provided for in section 170AC of the Act.
PN297
MR ARGELL: I agree with all of that but it is also a matter that goes to the discretion that you are required to exercise in the face of a 127(2) application. It is a factor to be taken into account in the exercise of a discretion.
[3.10pm]
PN298
THE SENIOR DEPUTY PRESIDENT: There is one other thing. I think the Full Bench in Cole and Allied indicated that section 170MT as it then was and now section 170 - 127(5)(a) does not mean that where the industrial action is protected there is no jurisdiction to make the order rather it is concerned with the legal effect of an order. But it went on to conclude, whilst jurisdiction is available as a general rule, a discretion should not be exercised in relation to industrial action considered to be protected action or plainly likely to be protected action. If a finding is that the action is, indeed, protected action, where would the Commission go in relation to those observations and how should they be considered against the observations of McHugh J in the Electrolux decision.
PN299
At paragraph 166 he went further, I think, describing as one consequence of the immunity being - and I quote:
PN300
The Commission cannot make an order under section 127 to stop or prevent the industrial action.
PN301
And he references that to section 170MT(1) which, as you say, was repealed and now replaced by 127(5)(a).
PN302
MR ARGELL: Well - - -
PN303
THE SENIOR DEPUTY PRESIDENT: I mean, that is a much stronger position than that - - -
PN304
MR ARGELL: Yes.
PN305
THE SENIOR DEPUTY PRESIDENT: - - - of the Full Bench in Coal and Allied.
PN306
MR ARGELL: Yes, it is and I am not too sure I can say too much about that other than the fact that we believe that the action in these cases is not protected and should be seen as not protected. The - which means that these issues don't necessarily arise. As to how one reconciles the difference between the Full Bench of the Commission and the statements of McHugh J, I am not too sure. Those - perhaps I will leave it at that.
PN307
THE SENIOR DEPUTY PRESIDENT: But even on the Full Bench proposition, generally, the Commission would not order a - make a section 127 order in respect to protected action.
PN308
MR ARGELL: Well, that is right, there would be - if it were that this action is protected action, which we say it isn't, then generally - - -
PN309
THE SENIOR DEPUTY PRESIDENT: Yes, yes.
PN310
MR ARGELL: - - - the approach to the Commission would be not to make such orders. What we would say, firstly, is this is not protected action. And, secondly, even if it is, that there are special circumstances here which the Commission ought to take into account. Those were provided in evidence. The particular harm that would be done to the third parties in this exercise and particularly the students by the examination bans; that should be taken into account. And also the offence against section 187AB, which, as Mr McAlpine says, is amenable to other remedies - it has other remedies attached to it.
PN311
But, nonetheless, is a factor which you ought to take into account in exercising that discretion.
PN312
THE SENIOR DEPUTY PRESIDENT: Very well.
PN313
MR McALPINE: Your Honour, just so that we are not leaving Mr Argell without the opportunity to put the position. We - - -
PN314
THE SENIOR DEPUTY PRESIDENT: Well, he will get an opportunity to reply to anything you put.
PN315
MR McALPINE: No, no - yes, but it isn't our position. Our defence on 187AB is not simply that the action is protected but simply that the section is - there has been no threat or - of the type described in 187AB as well.
PN316
THE SENIOR DEPUTY PRESIDENT: Yes, I understood that to be the case, if there is any misunderstanding. Yes, Ms Roberts?
PN317
MS ROBERTS: I will start off, your Honour.
PN318
THE SENIOR DEPUTY PRESIDENT: Yes.
PN319
MS ROBERTS: Referring first to what was just under discussion being the workings of section 127 and in particular (5)(a) previously section 170MT. The NTEU is of the understanding that these provisions of the Act work in the way that your Honour has described being that if action is unprotected it can come within the purview of 127 orders but if it is protected, at least, the presumption should be, that discretion should not be exercised in favour of granting such an order, that being the view in Coal and Allied.
PN320
And I say that that is at least the position given McHugh Js remarks in the Electrolux decision. So, we say, at the very least, your Honour's discretion should not be exercised in favour of granting section 127 orders if you find that the action is protected. And we would concur with the view expressed by McHugh J in saying that in fact 127(5)(a) prohibits such an order being made, or at least, the effectiveness of any order being made if action is protected.
PN321
THE SENIOR DEPUTY PRESIDENT: Well, that is really the issue, isn't it - - -
PN322
MS ROBERTS: Yes.
PN323
THE SENIOR DEPUTY PRESIDENT: - - - whether it should be made or the effectiveness of it.
PN324
MS ROBERTS: Yes.
PN325
THE SENIOR DEPUTY PRESIDENT: Yes.
PN326
MS ROBERTS: So we say, your Honour, that the crux of the matter is whether our action - or the NTEUs action - and accordingly given section 170MM has been raised, whether the AEUs action is protected. In relation to that we say, simply, that the NTEUs action is protected action. And whilst it has been alleged that it isn't protected action no evidence has been brought that it is unprotected. And, indeed, the only avenue that it has raised is that it might be unprotected due to the AEUs unprotected action.
PN327
THE SENIOR DEPUTY PRESIDENT: The MM point.
PN328
MS ROBERTS: Yes. We concur with the submissions that we understand the AEU will be making in respect of its action being protected, so we would say, that that closes off the door in respect of 170MM. But we would further say, that even if the AEUs action were unprotected, there is no reason why section 170MM would make the NTEUs action unprotected because there is simply no evidence before the Commission of any acting in concert in organising or engaging in this industrial action.
PN329
The fact that it is occurring at a similar time and about similar matters is not evidence that there is any acting in concert. There is no communications being put before the Commission of any such acting in concert and that hasn't been addressed today, except to say that, well, if these things are happening on the same day, they must be organised together. That isn't evidenced, that is simply an assertion which we refute. We are not of the understanding that the action between the NTEU and the AEU or any of the other unions has been organised or is going to be engaged in in concert and we refute that proposition.
PN330
We would also say that even if your Honour decides that the AEUs action is unprotected and that therefore, notwithstanding my submissions, that the NTEUs action is unprotected also due to the operation of section 170MM, that your discretion should not be exercised in favour of granting a section 127 order. We say that despite the evidence put forward by Mr - Dr Snyder this afternoon, there is actually no evidence before your Honour that any students will be harmed by - certainly until 13 December - by the taking of this industrial action.
PN331
And I would simply say to your Honour that there was a telephone conversation that occurred this morning between myself and the local representatives about the setting up of an exemptions committee in respect of dealing with any possible hardship that students could be feeling because of the actions of the NTEU. So we understand there to be activities under way in relation to dealing with that issue but we also don't think that that will become an issue, at least, until after 13 December.
PN332
We would also say that there are further reasons why your Honour should not exercise discretion in favour of granting a section 127 order, simply being that, the negotiations for this agreement have been going on for a long time. There is - a level of intransigence has been - as we have seen through the evidence this morning - has been shown by Charles Darwin University in terms of its reluctance to agree to any increased pay rise. And the fact of the matter is that that will - the pay rise that is on the table in the negotiations at the moment will lead to Charles Darwin University employees being paid towards the bottom, if not, the bottom, salaries of any academic and general staff in Australia.
PN333
So we are talking about a significant level of disputation going on here but we would submit that it is not - your discretion should not be exercised in favour of granting the action simply because there is harm that may occur to the university. We would say, about that issue, that simply is not a relevant consideration in terms of whether or not you should exercise your discretion in the context of our action being protected. We say that simply because industrial action always leads to some kind of harm, and whilst we would be more than happy for an action - for a result to come out of this which is a negotiated settlement including an increased pay result for our staff - and we would be more than happy to call off the industrial action if that was the case, the management has indicated that that will not be happening.
PN334
And in those circumstances we can see no other option, unfortunately, despite a years patience on the part of our staff, than taking this industrial action which is, we would submit, in a fairly measured form at this late stage of the bargaining negotiations. We would further submit that - just going back to the question of harm. The evidence that has been put forward as to the question of harm that the university has submitted. We would say that that evidence would be relevant if the Commission was considering whether to suspend or terminate the bargaining period but that is not the application before your Honour this afternoon.
PN335
THE SENIOR DEPUTY PRESIDENT: That is the application suggested is more appropriate in respect of protected action by the Full Bench in Coal and Allied.
PN336
MS ROBERTS: Yes.
PN337
THE SENIOR DEPUTY PRESIDENT: Yes.
PN338
MS ROBERTS: That would be our submission, your Honour. In respect of the 187AB issues I will refer that to Ken McAlpine who would want to address your Honour now.
PN339
THE SENIOR DEPUTY PRESIDENT: Yes, Mr McAlpine?
PN340
MR McALPINE: Yes, we don't concede that the claim as set out in the application that was referred to by Mr Argell constitutes anything at all that is relevant to section 187AB. For the record the item of industrial action that is referred to is a cessation of work by any member of the NTEU who becomes aware that the university is withholding his or her pay in connection with the taking of industrial action or alleged industrial action from the day on which each members becomes so aware being on or after 18 November 2004.
PN341
Now, the first thing to say about that is that we assumed section - that the sub section that is being referred to is section 187AB(1)(b) which is that - which states:
PN342
That an organisation must not organise or engage in or threaten to organise or engage in in industrial action against an employer with the intent to coerce the employer to make such a payment.
PN343
Now, the reference there to intent, we say, means that the Commission needs evidence of what the intention of the industrial action was. And the first thing we say is that no evidence of any intent has been presented at all in these proceedings. Now, it is open in certain situations where the Commission and other Tribunals have to make this sort of decision that the words of the document itself evince an intent. Now, we say, that the words of - the words on the document we presented to the university do not indicate any such intent.
PN344
There is no claim for payment. There is simply no claim for payment. In the - and really to prove intent we would say that the words on the page had to be such that no other interpretation other than an intent was available. And I can tell, your Honour, as the person who drafted this particular form of words, the origin of it relates to the University of Melbourne a number of years ago where members were told that because they were refusing to transmit student results to the central administration that they were to have their pay docked.
PN345
And what that meant was they were doing the entirety of their duties other than loading - taking the 30 seconds to load a disk into their computer and to attach various files to an e-mail and send it to central administration. They were doing the entirety of their duties. Now, as the Act says, if - during a period in which industrial action is being taken the employer must not pay the employee. Now, in the circumstances at the University of Melbourne, the university took the view that it was required to withhold pay from those persons.
PN346
And it advised members of ours that their pay was to be withheld from that point - from the point of that advice and that was done by heads of department. Those members immediately contacted the union and said, they are not paying us, I assume that means we go home now. And we said, well, you know, out of an abundance of caution, the complete cessation of work is not a matter that have notified to the employer. We have notified a ban, this particular ban, but we haven't notified a complete cessation of work.
PN347
And you as a common sense employee, with only common sense rather than knowledge of industrial law, might think that because they are not paying you you are entitled to go home now but in fact that may not be the legal position. So the purpose of this provision is to make it clear that when the employer advises - if they come to the view that they are required to dock people's pay for imposing this ban, when and if the employer comes to that view, and advises the employee that they are not going to be paid, then that employee will be covered by this notice and their work will cease forthwith on the principle that - the reverse of the usual one, which is, no pay, no work.
PN348
So there is no claim, and let me just say formally for the record, there is no claim by the NTEU. There never has been any claim. There is no claim now and as far as I know there won't be any claim in the future that employees be paid if they cease work or if they impose bans. There is no evidence of such a claim. The evidence - there is no evidence in the document itself. What it is saying - and it is not a threat to say, it is not a threat to say, that if pay is being withheld work will cease. That is not a threat. And it is not coercion, it is simply stating that is one of the types of industrial action which is being notified.
PN349
So - and in any case, in any case, even if the Commission, in our view, wrongly decided that it were a threat, the fact is there is no claim. There is no claim for payment. And therefore, we say, there is - we say that there is - that the notice of industrial action is quite proper and it is - and in the discretion anyway; it is a perfectly reasonable proposition that if the employer says, we are not paying you, then you are entitled not to work. So even if you are against us on all the other points, we say as a question of discretion, it is - it would be very inappropriate for the Commission, where the employer had announced that they weren't going to pay employees for taking some particular ban which might involve 10 minutes at work in the whole days work - if the employer, as they are arguably entitled to do, says, we are not going to pay you, we say in your discretion anyway, the Commission should decide that it is reasonable in those circumstances, if it is industrial action, that the employees cease work where they are not being paid. If it pleases the Commission.
PN350
THE SENIOR DEPUTY PRESIDENT: Thank you, Mr McAlpine. Ms Gale?
PN351
MS GALE: Thank you, your Honour. The issue of protected action. The AEUs original notice of initiation of bargaining period, indeed, attached a log of claims which contained at least one item there that - - -
PN352
THE SENIOR DEPUTY PRESIDENT: Well, that is the only item - - -
PN353
MS GALE: Yes, clearly - - -
PN354
THE SENIOR DEPUTY PRESIDENT: - - - Darwin University is relying on.
PN355
MS GALE: Yes. It is clearly a matter which today would not be included in a log of claims. The notice of initiation of bargaining period was precisely that, it was the initiation of the process. It was lodged in June and a lot of water has gone under the bridge since then. Mr Argell has suggested that the union was attempting to change horses midstream and to change our claims midstrike. The letter that was tendered earlier as, I think, AEU1, was indeed sent after we received the notice of the employer's application in this matter. It was not sent as some sort of ex post facto attempt to cover our tracks.
PN356
It was sent because we were surprised by the nature of the employer's notice and we sought immediately to remind the employer of where things had progressed to in bargaining.
PN357
THE SENIOR DEPUTY PRESIDENT: When do you say the advice was conveyed verbally to the university during negotiations or when do you say that occurred? The letter says:
PN358
This advice has been previously conveyed verbally to the university during negotiations.
PN359
When do you say that occurred?
PN360
MS GALE: Your Honour, the progress of negotiations was such that there have been a number of meetings which have occurred. I am afraid I can't give you precise dates but I do know that the last negotiations occurred before the employer's application was lodged in this matter. The evidence of Mr Snyder, in fact, was - confirmed the union's submissions in this matter. His evidence was that the majority of issues were resolved in February and March. That since then negotiations have focused principally on salaries and he referred to a number of discussions about what conditions - matters - the unions might or might not be willing to trade off in order to increase the salaries level but that basically the negotiations had been about salaries and that the majority of other issues are agreed to.
PN361
We say that entirely concurs with the union's submissions in this matter and with the content of the letter which is that the majority of matters have been agreed to. The outstanding claims, which have been outstanding since prior to the notification of industrial action, are the issues relating to salaries and allowances and the percentage increase to flow to employees as a result of these negotiations.
PN362
THE SENIOR DEPUTY PRESIDENT: And so this log was 30 June '03, yeas,okay.
PN363
MS GALE: Yes. The negotiations are very long in the tooth, your Honour. And we say the evidence before you, the evidence from Mr Snyder is that since February or March 2004, at least, the issues in dispute between the parties have related, principally, to salaries. Mr Argell had the opportunity to put to his witness that other matters were still on the table and he chose not to do so and we say that in fact there are no other matters still on the table. And that is clear, both from our uncontested submissions on that point, and from the evidence of Mr Snyder.
PN364
Mr Argell conceded that the NTEU is no longer pursuing claims for matters which do not pertain, We say the AEU is in precisely the same position and has been for many months. Therefore, we say, the issue arising from 170MM is not an issue before you. Nevertheless, if you find against us on that point, we say that there is also no evidence that the action of the AEU is being taken in concert with that of any other union. We have been pursuing separate claims. We have had separate decisions of our members in relation to the taking of industrial action.
PN365
We have issued a separate notice of industrial action to the employer. The action that we are taking is different to that being taken by the NTEU. We say it is not taken in concert and we say there is no evidence before you that it is. On the question of the damage to students, particularly in the VET sector - and the AEUs members teach in the VET sector at the university. Our members have designed their industrial action, in fact, to combine maximum pressure on the employer with minimum impact on students.
PN366
The industrial action that we have taken has included strike action during the university's open day which is a point, in our view, of maximum public attention and potential embarrassment for the university, and therefore a time when we can take industrial action which does not impact on the students of the university but clearly impacts on the image of the university and the university's management in the conduct of their work. We have placed bans on the exam results for the students that we deal with and that is the VET students.
PN367
The timing of those bans is such that the initial impact is in fact on the university. And as Mr Snyder said, there are administrative issues associated with entering the bans - the results into the system and getting the results out to students on time, if the beginning of that process is delayed through industrial action. Indeed, those administrative inconveniences for the employer will occur. That is the purpose of our industrial action. Our intention is to maximise the pressure on the employer and there is no industrial action that lecturing staff at a university can take which has no impact, or no potential downstream impact, on students.
PN368
In this case, however, the downstream impact on students occurs if the matter is still in dispute at that stage. If the university remains intransigent in its position then the downstream impact on students begins to occur from 13 December. And we say that it is certainly far too early in the piece for any conclusion to be drawn that a ban on the communication of exam results today or tomorrow or the day after has any negative impact on students of the university. Thank you.
PN369
THE SENIOR DEPUTY PRESIDENT: Very well, thank you. Just one moment. Yes, Mr Argell.
[3.40pm]
PN370
MR ARGELL: Yes, thank you, your Honour. Look, on the point of section 170MN, the question of whether or not these forms of industrial action are in concert with each other, we simply say that you need to take the common meaning of these sorts of words, any person on the street would look at these circumstances - - -
PN371
THE SENIOR DEPUTY PRESIDENT: Well, in concert, is a particular term that has a fairly serious meaning. It isn't a common usage term. It does have some significance beyond - - -
PN372
MR ARGELL: Well - but it is not as strong as a conspiracy.
PN373
THE SENIOR DEPUTY PRESIDENT: No, that is true.
PN374
MR ARGELL: It is not the same level of proof as it would be for a criminal charge of conspiracy. What I am suggesting is that, in concert, means, in common parlance, together, organised together, for a similar purpose, coordinated in some way. And what I am saying is that - - -
PN375
THE SENIOR DEPUTY PRESIDENT: Well, what evidence is there that it was coordinated in some way or organised together?
PN376
MR ARGELL: Well, again, my point was, what evidence could one possibly bring unless one were to try and prove something to the point that one would have to prove a criminal conspiracy. What we say is that you should - simply should look at the circumstances and draw the conclusion that these things are being organised together, and coordinated in some way, and that that satisfies the requirements of section 170MN. The arguments, other arguments produced by Ms Roberts and Ms Gale that there is no harm to the students until the 13th, or near the 13 December, ignores Dr Snyder's evidence about the necessary lead time.
PN377
The idea that you shouldn't intervene until after the harm has been done, is one that is inconsistent with the approach taken by the Commission, we say. That you can anticipate that this harm will be done, and that you should take account of the evidence that shows that it will be. As for the exemption committees, well the first we have heard about that was today. And if we are asking about where the evidence is, we could also ask where the evidence of the exemption committees is, but nonetheless, if there is going to be some special provision for students who would undergo - who would suffer particular hardship from this industrial action, well, we say that is a good thing, in general, but the truth of the matter is that there is nothing before you that goes to that point.
PN378
Mr McAlpine's strange explanation of their point 3 in the notice of industrial action, I still don't completely understand. And I don't think it makes much sense. The - - -
PN379
THE SENIOR DEPUTY PRESIDENT: Well, I think the nub of it is, he was putting to me that the industrial action is not directed to claiming nor action to coerce payment in respect of periods of industrial action, but rather industrial action in the form of not undertaking work, where not being paid.
PN380
MR ARGELL: Well, I heard that explanation but it doesn't seem to me to be that that is what it says. I mean, if it - and if Mr McAlpine is right, then the Workplace Relations Act doesn't say what it says. What the Workplace Relations Act says is, that employers shall not pay employees during periods in which they engage in industrial action.
PN381
THE SENIOR DEPUTY PRESIDENT: But the University isn't being asked to pay employees during a period of industrial action.
PN382
MR ARGELL: Well, the example Mr McAlpine gave from the University of Melbourne was this. That where a staff member was engaging in industrial action in the form of a limited work ban - - -
PN383
THE SENIOR DEPUTY PRESIDENT: Yes.
PN384
MR ARGELL: - - - but performing the remainder of their duties, that if the employer interpreted that requirement not to pay the person, as requiring that they not receive any payment at all - - -
PN385
THE SENIOR DEPUTY PRESIDENT: Yes. The nub.
PN386
MR ARGELL: - - - that that was somehow outside the - that was somehow a withdrawal of pay that was unassociated with the industrial action.
PN387
THE SENIOR DEPUTY PRESIDENT: I think what he was saying was, well if your interpretation is you are not going to pay us at all, even though we are engaging in - I think he said, 30 seconds industrial action in a day, then we are not going to work at all.
PN388
MR ARGELL: Well, that is - - -
PN389
THE SENIOR DEPUTY PRESIDENT: Rather than being a claim for payment.
PN390
MR ARGELL: Well, that is right, but it is a conditional threat. It is not a statement that we will cease work entirely. That is not what it says. It says, we will cease work entirely unless you respond to the partial work bans by continuing to pay us.
PN391
THE SENIOR DEPUTY PRESIDENT: In respect to the work undertaken.
PN392
MR ARGELL: In respect - well - - -
PN393
THE SENIOR DEPUTY PRESIDENT: In respect of periods of non-industrial action.
PN394
MR ARGELL: In certain work - with certain types of work bans it would be possible to separate these things out. If a person had, you know, 10 duties during the day, but their last hour was spent performing a banned duty, then you could take an hour's pay off them.
PN395
THE SENIOR DEPUTY PRESIDENT: Yes.
PN396
MR ARGELL: And probably comply with the requirements of the Workplace Relations Act. This is not that sort of circumstance. This is the sort of circumstance where, when are you withholding the exam results. You are withholding them all the time, really, any time that you refuse the employer direction to transmit - to give those exam results to the Registry or whoever you are supposed to give them to, you are engaging in that industrial action. That industrial action is on-going, and you are engaging in it throughout your working day. The Workplace Relations Act says, that you are not to pay people for - during periods in which they engage in industrial action.
PN397
It would be entirely consistent, in spite of Mr McAlpine's discomfort with what the Melbourne University approach was, it would be entirely consistent with the Workplace Relations Act to say to a person in those circumstances, well, we are not going to pay you at all until you perform all of your duties. There is a well-established principal of no workers pay with - as directed, no pay.
PN398
THE SENIOR DEPUTY PRESIDENT: And the NTEU members are saying, well, fine, but we are not going to work if we are not being paid. Don't pay us but - - -
PN399
MR ARGELL: Well, that is fine, and indeed they are entitled, I suppose, to take that action and withdraw their labour entirely. What they are not entitled to do though is say, if you take pay off us because we are engaging in industrial action, then we will go on - we will take further industrial action. And that is what I think they are saying. And that is exactly what 187AB addresses. Mr McAlpine - - -
PN400
THE SENIOR DEPUTY PRESIDENT: But the key thing in B - I mean, frankly I can't see the claim in A - the key thing in B is an intent to coerce the employer to make such payment.
PN401
MR ARGELL: That is right. And Mr McAlpine has explained. He wants to coerce Charles Darwin University to take all of the pay off staff who are engaging in partial work bans, as he - - -
PN402
THE SENIOR DEPUTY PRESIDENT: No, that is not what he put at all. He put it in the Melbourne University context, that the - that it was simply to indicate to the employer that, well if you have your interpretation of how it works, then we will accept that and simply not work at all.
PN403
MR ARGELL: Well, put in this context, I believe it should be seen as a - as in 187AB(1)(b), and threat to organise in or organise or engage in industrial action against an employer with the intent to coerce the employer to make such a payment. Because what Mr McAlpine wants to come out of this clearly is for the University to respond to partial work bans by not docking people's pay entirely. Or at all, perhaps. Because it doesn't say - if it were my other example, what if it were the last hour of the day in which you have this particular duty, this could be read also as a threat that if you take one hour's pay off the people they are also going to go on further. They are going to stop work for the entirety of the next day. And so why is that not in the exact words of 187AB(1)(b) a threat to engage in industrial action with the intent to coerce the employer to make such a payment?
PN404
THE SENIOR DEPUTY PRESIDENT: Well, presuming I accept the position in respect of that, does that affect the protected action, or is it simply another issue to throw into the discretionary pot?
PN405
MR ARGELL: Exactly the latter, I think.
PN406
THE SENIOR DEPUTY PRESIDENT: The latter, yes, very well.
PN407
MR ARGELL: Ms Gale talked about this evidence of their earlier withdrawal of certain claims. Well, I mean, again, these were questions that she might equally have put to Dr Snyder and didn't.
PN408
THE SENIOR DEPUTY PRESIDENT: I am surprised nobody did.
PN409
MR ARGELL: Well, she made something of what Dr Snyder said about there being matters that were resolved and so on. But Dr Snyder didn't go to that specific point. And it is stretching his evidence to suggest that he did. And I covered the final two points.
PN410
THE SENIOR DEPUTY PRESIDENT: Well, what am I meant to draw in respect of that? I mean, Ms Gale asserts from the bar table and you contest the proposition that it was conveyed verbally, supported by the letter. But in effect you are saying, the better proposition is, go back to the June 2003 log of claims, and find that hasn't altered until 17 November, when a letter was sent.
PN411
MR ARGELL: Well, there is evidence that - - -
PN412
THE SENIOR DEPUTY PRESIDENT: Was the Electrolux having occurred in the middle of all of that?
PN413
MR ARGELL: Well, there is evidence that in June 2003, this was one of the things that the Union was pursuing. There is evidence - - -
PN414
THE SENIOR DEPUTY PRESIDENT: Well, it was quite common but a number of unions have modified their claims following - - -
PN415
MR ARGELL: That is right.
PN416
THE SENIOR DEPUTY PRESIDENT: - - - the 2 September 2004.
PN417
MR ARGELL: And the AEU has now, in a letter dated today, there is evidence that they have resiled from that position today. But there is no evidence of their earlier resiling from that position.
PN418
THE SENIOR DEPUTY PRESIDENT: Well, it would be more probable than not that they would, would it not? Particularly in respect to non-member bargaining fees. I mean, that is the one issue Electrolux say, in the High Court, did - - -
PN419
MR ARGELL: Well, that is right.
PN420
THE SENIOR DEPUTY PRESIDENT: - - - clearly determine.
PN421
MR ARGELL: That is right. You might have - - -
PN422
THE SENIOR DEPUTY PRESIDENT: Raised about 20 other questions, but - - -
PN423
MR ARGELL: Yes. You might have thought that they would have resiled from that earlier, but as I say, there is no evidence of their having done so.
PN424
THE SENIOR DEPUTY PRESIDENT: Yes.
PN425
MR ARGELL: The only evidence before you is the fact that they have made the claim early on, and the fact that they have resiled from it today. That is the evidence before you.
PN426
THE SENIOR DEPUTY PRESIDENT: Yes.
PN427
MR ARGELL: Okay. If it please the Commission.
PN428
THE SENIOR DEPUTY PRESIDENT: Very well. I am going to reserve my decision. I hope to publish something tomorrow. I note there is industrial action scheduled to occur tomorrow in respect to the NTEU. I would indicate that that seemed, on Dr Snyder's evidence, to be a lesser concern than the marking issue. But in any case, I need some time to consider a couple of issues associated largely with the application in respect to the AEU. I don't believe the order has been - the case for the order has been made out in respect to the NTEU in any case. But I will issue a decision tomorrow setting out reasons in respect to the NTEU and a decision in respect to the AEU.
ADJOURNED INDEFINITELY [3.51pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
EXHIBIT #D1 FACSIMILE SENT FROM MR MOREHEAD TO MS TREVASKIS PN31
EXHIBIT #D2 COPY OF NOTICE OF INITIATION OF BARGAINING PERIOD WITH ATTACHMENT PN78
EXHIBIT #AEU1 LETTER SENT BY AEU TO CHARLES DARWIN UNIVERSITY PN153
SCOTT DERMOT SNYDER, SWORN PN195
EXAMINATION-IN-CHIEF BY MR ARGELL PN195
CROSS-EXAMINATION BY MR McALPINE PN207
RE-EXAMINATION BY MR ARGELL PN259
WITNESS WITHDREW PN262
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