C2005/2401, Transcript of Proceedings [2005] AIRCTrans 2309 (8 November 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 13292-1

COMMISSIONER FOGGO

C2005/2401

COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA
AND
AUSTRALIAN POSTAL CORPORATION
s.99 - Notification of an industrial dispute
(C2005/2401)

MELBOURNE

10.07AM, TUESDAY, 25 OCTOBER 2005

Continued from 22/8/2005

PN1

THE COMMISSIONER: Are there any changes in appearances?

PN2

MR C O'GRADY: I seek leave to appear on behalf of the Australia Post.

PN3

THE COMMISSIONER: Yes. Leave is granted, Mr O'Grady. Mr Farouque?

PN4

MR FAROUQUE: Yes, thank you, Commissioner. Commissioner, as you are aware, there are two applications before the Commission today. They're to be heard contemporaneously. One is an application by the CEPU pursuant to part 9 of the Act and under the dispute resolution powers of the Commission set out in section 25G of the Workplace Relations Act seeking certain orders, the terms of which are set out in full in the second submission filed by the CEPU in amended form. Commissioner, do you have a copy of the CEPUs outline of submissions? I should perhaps put that at first instance with you.

PN5

THE COMMISSIONER: Yes, I do.

PN6

MR FAROUQUE: Commissioner, if I could just take you quickly to the terms of the order which are proposed in respect of this particular application by the CEPU. They're set out in paragraph 3 of the second submission dated 19 July 2005.

PN7

THE COMMISSIONER: Just let me locate that. In fact, I think the best thing is we make sure that we have all the information. The first lot of submissions were received on 21 June, 2005.

PN8

MR FAROUQUE: That's right, yes.

PN9

THE COMMISSIONER: Then there's a second lot of submissions which were reply to Australia Post submissions and that's dated 11 July.

PN10

MR FAROUQUE: No, Australia Post submissions are dated 11 July. These submissions that I'm referring to are the CEPUs submissions which are dated 19 July. That document is headed CEPUs Outline of Submissions in Reply to Australia Post submissions dated 11 July.

PN11

THE COMMISSIONER: Yes, dated 11 July.

PN12

MR FAROUQUE: That's right.

PN13

THE COMMISSIONER: But in fact I received in chambers on 20 July. I’m going to mark the initial submissions as exhibit F1 and the second lot of submissions as exhibit F2.

PN14

MR FAROUQUE: Thank you, Commissioner. The terms of the order sought are set out in paragraph (3) of the second, if I can call them that, CEPU submissions. It is an order which is substantially similar and has some amendments made to it to the order proposed which was handed up to you, Commissioner, at a previous conference in respect of this matter. The amendments are marked and highlighted from the previous version in terms of the order. In essence, Commissioner, in respect of the order that is proposed we say it reflects the rights, so to speak, mirrors the right set out in respect of right of entry in part 9, section 285B of the Act in relation to the matter of a suspected breach of clause 5 of the EBA, Commissioner, which, as you're aware from the way this matter has been agitated before the Commission, is one which pertains to Occupational Health & Safety.

PN15

Now, does the Commission have a copy of the EBA in front of it?

PN16

THE COMMISSIONER: No.

PN17

MR FAROUQUE: Commissioner, my learned friend, Mr O'Grady, has helpfully indicated that it's appended to Mr Rogan's affidavit, or Mr Rogan's witness statement.

PN18

THE COMMISSIONER: Yes, and what clause?

PN19

MR FAROUQUE: Clause 5.

PN20

THE COMMISSIONER: Yes.

PN21

MR FAROUQUE: Which is headed Occupational Health & Safety. Now, Commissioner, the clause is set out in the terms there. It provides:

PN22

The parties are committed to achieving and maintaining healthy and safe working conditions in all Australia Post work places -

PN23

and this is a critical part, Commissioner:

PN24

- by abiding by relevant Occupational Health & Safety legislation and the Australia Post Occupational Health & Safety Agreement 1992 or any successor to that agreement.

PN25

So, Commissioner, that's the particular clause which is the subject of material to both applications which are before the Commission today.

PN26

The CEPUs essential contention in respect of that clause and which is material to both applications is that it contains a binding application on Australia Post in relation to health and safety. In respect of the application as it arises in relation to right of entry, Commissioner, if I could take you to exhibit F1. We say that the essence of this matter and the denial of right of entry, which is one which Australia Post evidently holds in respect of all attempts or any further attempt to enter which is founded on alleged breach of clause 5, that Australia Post essentially contend that clause 5 cannot found a right of entry.

PN27

They do so on the grounds, in essence, that clause 5 of the EBA as they propose, is a statement of intention and does not impose an enforceable obligation on Australia Post. So in respect of the application made by the CEPU we say that the dispute which the Commission is called upon to resolve, is whether a permit holder who suspects a breach of clause 5 of the EBA6 is entitled to exercise a right of entry pursuant to section 285B of the Act. Our primary contention in respect of that particular application, Commissioner, is that the Commission need not decide in essence whether clause 5 of EBA6 imposes any legal obligation on Australia Post or, indeed, is merely a statement of intent and we say that based on a characterisation on a construction of section 25B of the Act which relevantly sets out, Commissioner, in 285B(1) - 285B(1) says:

PN28

This section applies if a person who holds the permit in force under this division suspects that a breach has occurred or is occurring of this Act or an award or order of the Commission or relevantly here, a certified agreement.

PN29

And we draw your attention to that provision which sets out that a person who holds a permit in force under this division suspects that a breach has occurred or is occurring. Then we go to section 285B(2):

PN30

For the purpose of investigating breach -

PN31

which is evidently a reference to that set out in 285B(1) -

PN32

the person may enter during working hours any premises-

PN33

et cetera, et cetera. So we say when one looks at those two provisions of section 285B, Commissioner, that the right of entry is merely contingent of the permit holder suspecting that a breach has occurred and in essence, we say that the statutory condition, being the subjective view of the permit holder, we submit that resolution of this issue, whether clause 5 of EBA6 imposes a legal obligation or not is not necessary.

PN34

All that is required for the exercise of a right of entry is that the permit holder suspect that a breach has occurred. Now, in respect of this application, the CEPUs application, we say, if that be the threshold or the standard in respect of the exercise of a right of entry, for the purposes of that application, Commissioner, the CEPUs application, the Commission need not resolve the issue whether clause 5 of EBA6 actually imposes an obligation, a legally enforceable obligation or not. That threshold being that a permit holder suspects a breach has occurred or not.

PN35

Now, of course we say that the permit holder has to bona fide suspect that a breach has occurred. It's not something which is simply writ at large. It has to be a bona fide belief and there's a Full Bench authority of this Commission to which I will refer to in further submissions to the Commission, which sets out that the permit holder must bona fide believe that a breach, or suspect that a breach has occurred. In any event, Commissioner, an alternative contention that we put in respect of this particular matter is that if the Commission is of a view that that first contention is not sufficiently persuasive and the Commission decides that in respect of the CEPUs application it must consider or decide whether clause 5 of EBA6 does contain or does impose an enforceable obligation, we say that it's very clear, and the weight of the evidence is to the effect that it does impose such application and we do so on a number of grounds, Commissioner.

PN36

One ground on which we rely on is set out in our first submission, and that is that the clause is materially identical to another clause which has, in another certified agreement, one in the decision of the SDA v Big W Stores decision, which I know you, Commissioner, were a member of that particular Full Bench, and that clause which we say is materially identical to this particular clause in EBA6. In that particular matter the Full Bench there concluded that the clause had the effect of imposing a legal obligation on the employer party to the certified agreement. So we rely on that particular authority in support of the proposition that clause 5 of EBA6 imposes a legal obligation on Australia Post and is not merely to be said to be an expression or statement of intention.

PN37

Now, there are other bases upon which we found the submission that clause 5 of EBA6 is indeed a legally enforceable obligation and they are materially contained, Commissioner, in the second CEPUs submission.

PN38

We submit as follows, we will be submitting as follows, Commissioner, that the wording of a particular clause, if one looks at it, for instance, even free of the decision in the SDA v Big W Stores matter, if one looks at the wording of clause 5, we see set out therein the terminology, the parties are committed to achieving and maintaining healthy and safe working conditions in all Australia Post work places, and critically, abiding by all relevant Occupational Health & Safety legislation and the Australia Post Occupational Health & Safety Agreement 1992 or any successor.

PN39

We say that this clause, in that it specifies by use of the terminology "by abiding" specifies the means by which a commitment to healthy and safe working conditions are to be achieved.

PN40

THE COMMISSIONER: There's a problem in relation to the translation of the clause in Mr Rogan's statement and the attachment. The word "all" has dropped out of the clause. The certified agreement states, as you have been reading:

PN41

and safe working conditions in all Australia Post work place by abiding by all relevant Occupational Health & Safety legislation.

PN42

The clause which is attached to Mr Rogan's statement says:

PN43

by abiding by relevant Occupational Health & Safety.

PN44

MR FAROUQUE: Commissioner, is that because there's a hole punch there or is that a copy that's before you, Commissioner?

PN45

THE COMMISSIONER: Well, it looks that way, but I can assume that the word "all" should be in there.

PN46

MR FAROUQUE: Yes, I think that that's agreed, Commissioner.

PN47

MR O'GRADY: Yes, that's common ground, Commissioner. I think it was - this is a photocopy of something that had been hole punched previously and I apologise for that, Commissioner.

PN48

THE COMMISSIONER: Thank you.

PN49

MR FAROUQUE: So, Commissioner, we say that the use of that terminology "by abiding by" specifies the means by which the healthy and safe work place is to be achieved and that events an intention that those obligations are specifying the means are ones which are binding. It's not merely an expression of intention if the clause merely reads:

PN50

The parties are committed to achieving and maintaining healthy and safe working conditions.

PN51

or words to that simple effect.

PN52

Somewhat similar, for example, to the words used in EBA5 in respect of Occupational Health & Safety, one that Australia Post say may have some force. But in the circumstances where the clause sets out the means by which that matter is to be attained, sets out that Australia Post will abide by abiding by, sets out an obligation upon Australia Post to abide by those instruments in respect of obligations imposed upon Australia Post in those instruments. So, Commissioner, we say that the mere wording of the particular clause is one which is entirely consistent with the position put forward by CEPU. That is, that these are enforceable obligations.

PN53

Now, Commissioner, if I could contrast in terms of clause 5 as it's set out in the EBA with some general aspirational commitments, in clause 2 of the EBA. Now, that clause, Commissioner, you can see is quite different. That clause is headed Shared Understandings. That clause, as I said, Commissioner, is headed Shared Understandings and it speaks of Australia Post, for example, 2.2, will be a good employer, will treat individuals in a fair manner. The agreement recognises that there are shared and reciprocal responsibilities, that's 2.3. 2.4, the agreement aims to strengthen Australia Post's position as a successful personal business in an increasingly competitive and global market environment.

PN54

Australia Post has accountability to operate the business efficiently, determine and allocate resources, implement both large and small changes in an efficient and timely manner, explore means of protecting and expanding existing business levels. Australia Post is committed under this agreement to ensuring that there is full and open communication at all levels, encouraging employee involvement in the input and effective operation of their work places, providing safe work places that are free from unlawful discrimination and harassment, supporting employee diversification and implementation of work like balance initiatives, provide opportunities for skill enhancement and job enrichment in work design and through relevant and effective training.

PN55

So we say that when one compares clause 5 which sets out with precision the fact that Australia Post is to abide by specific standards set up in legislation and also in the 1992 Occupational Health & Safety Agreement made under the relevant Commonwealth Occupational Health & Safety Act, when one compares clause 5 to these, what one would say is general aspirational understandings, there's a critical distinction, Commissioner, to be drawn between those two types of clauses. Clause 5 sets out the precision, the means by which a particular end is to be achieved. It sets it out by requiring Australia Post to abide by those particular standards.

PN56

That language, Commissioner, we say is consistent with an enforceable obligation as distinct from some aspirational understanding or commitment. Now, Commissioner, much of this case is centred upon some of the extrinsic material in respect of negotiations between the parties leading up to the making of the EBA6 and certainly the authorities are to the effect that the Commission may have regard to that extrinsic material when determining the terms of a particular clause in an agreement and I think the parties, at least in respect of that legal matter, would be in agreement.

PN57

But furthermore, Commissioner, in respect of the extrinsic material, it's instructive, we say, to have a look at the predecessor industrial instrument between the parties, which was EBA5, which, Commissioner, has helpfully contained, attached to the witness statement of - the first witness statement of Ms Sharelle Herrington which the CEPU proposes to rely upon. That statement, Commissioner, is dated 20 July 2005. Commissioner, do you have an exhibit SH2 to that statement?

PN58

THE COMMISSIONER: Yes.

PN59

MR FAROUQUE: Commissioner, that is the predecessor industrial instrument. If I could take you, Commissioner, to clause 3 of that particular statement. Clause 3 sets out some general, what we would say appear to be aspirational statements, one of which for example, Commissioner, is clause 3.1(vii) and that predecessor industrial instrument simply states that 3.1, the substance of 3.1 is set out and the concluding sentence of 3.1 says:

PN60

The ongoing process of work place change and continuos improvement to its best practice will have regard to the following principles.

PN61

A number of principles, so to speak, are set out.

PN62

Ensure that the work place is safe and further improvements are made which protect all people in our work places.

PN63

So we say that that particular clause which is the clause in this particular predecessor instrument which deals with Occupational Health & Safety is of an aspirational effect, indeed, I think some observations to that effect were made in some other proceedings before this Commission by Senior Deputy President Kaufman, but it's noteworthy, Commissioner, that that clause is very different to what followed it in EBA6. It's not some provision which speaks in EBA6, unlike EBA5. EBA5 speaks of the ongoing process of work place changing, continuous improvement to its best practice, will have regard to the following principles.

PN64

Very different, Commissioner, in its terms to what is contained in EBA6 which speaks of an obligation upon Australia Post to abide by all relevant Occupational Health & Safety legislation and the 1992 Occupational Health & Safety Agreement and the successor to that agreement. Very different, Commissioner, clause 5, very different in EBA6 to what was contained in the predecessor agreement in respect of Occupational Health & Safety and we say that's noteworthy, Commissioner, that evinces an intention when one looks at the objective material before you, and there's material before you, Commissioner, which is also people's subjective recollections of matters which were said by the parties during the course of the negotiations.

PN65

But we say that perhaps what is of particular significant effect is the fact that there's a substantial change between the terms of the clause as set out in the predecessor instrument to what is set out now and one can draw, Commissioner, the inference that that change was made with the material purpose to make it clear, Commissioner, that there is an enforceable obligation contained in EBA6, clause 5, for there to be an enforceable obligation upon Australia Post in respect of health and safety.

PN66

Now, Commissioner, I need in that regard to draw your attention to some evidence that Ms Herrington will give in that respect. Ms Herrington, in her statement dated 20 July 2005, refers to that very matter. At clause 6 of her statement she sets out that the CEPU certainly intended - I have a copy of the statement, Commissioner, if that would be of some assistance.

PN67

THE COMMISSIONER: No, no, I have them all. I'm sorry, clause 6?

PN68

MR FAROUQUE: Yes, paragraph 6 of the statement, the CEPU certainly intended and expected that clause 5 of EBA6 would create enforceable obligations on Australia Post about health and safety:

PN69

I recall that a reason why the CEPU propose a new health and safety clause for inclusion in EBA6 was because the suggestion had been made by Australia Post in proceedings before Senior Deputy President Kaufman at clause 3.1(vii) of the Australia Post Enterprise Agreement 2001 was only a statement of intent and not an enforceable obligation.

PN70

So we say, Commissioner, when one looks at the subjective purpose of the CEPU as set out in Ms Herrington's statement is entirely consistent with stepping back and looking at the two instruments, EBA5, EBA6, significant change. And why, Commissioner, would that change be met? Well, Ms Herrington has set out the CEPUs purpose in that regard, that the intention was to create an enforceable obligation on Australia Post in respect of health and safety.

PN71

So, Commissioner, we say that in respect of the CEPUs application - before I make that submission, Commissioner, I should say something also. The Commission will have before it three statements which go to the circumstances of negotiations leading up to the making of the enterprise agreement, EBA6. There is a statement of Sharelle Herrington dated 20 July 2005 which I've taken the Commission to. There is a statement filed on behalf of the respondent, Australia Post, by Mr Rogan, which goes to those particular negotiations. There's also a further statement of Ms Justine Oldmeadow filed on behalf of Australia Post which goes to some of the circumstances of those negotiations, and there's also a further statement of Ms Herrington which also goes to the circumstances of those negotiations which is substantially I suppose in reply to what is said in Ms Oldmeadow's statement.

PN72

Now, those are, Commissioner, subjective recollections of persons in respect of the negotiations and we say that Ms Herrington's evidence will be clear in respect of that particular matter, that the intention of the CEPU was declared an enforceable obligation upon Australia Post in respect of health and safety and there were some issues raised by Australia Post in respect of right of entry, particularly in respect of Ms Joan Doyle, Secretary of the PNT Victorian Branch of the CEPU, and Ms Herrington, during the course of those concerns being raised by Australia Post said that the CEPU wanted the clause in the new agreement, not because of right of entry, but because the CEPU wanted clear health and safety obligations on Australia Post and Ms Herrington said to Mr Rogan that if somebody wanted to argue that the clause could be used for right of entry, then they could argue that issue and that furthermore, the enterprise agreement was not about one person.

PN73

The enterprise agreement was that arguing in negotiation was not simply about one person being - and he gave reference to Ms Doyle. Ms Herrington says that the CEPU did not give a commitment that the clause 5 EBA6 would not give rise to a right of entry. Ms Herrington furthermore says that at the time of the negotiations she was of the view that if what is now clause 5 of EBA6, creating enforceable negotiations on Australia Post which the CEPU intended, then that would have the consequence, Commissioner, of creating a right of entry for a suspected breach. But that wasn't what the motivation of the CEPU was in seeking that particular clause. The CEPU was seeking the inclusion of that clause not to simply create a right of entry, but to create enforceable obligations on Australia Post in respect of Occupational Health & Safety.

PN74

Now, the fact that a consequence of that may be that a right of entry is founded, is simply the consequence, Commissioner, and doesn't go to the legal effect of the particular clause in terms of it creating a bargaining obligation on Australia Post in respect of health and safety. Now, Commissioner, that, I suppose, in essence, deals with what we say in respect of submissions on the question of the CEPUs application. Australia Post of course made their own application. One whereby they seek to vary the agreement to include in the agreement some further variation which is to the effect that the clause does not contain a legally binding obligation, but is merely a statement of intention.

PN75

Now, Commissioner, that provision is founded or that application is founded upon section 170MD, a section - if the Commission could just bear with me. That provision, Commissioner, or that application is directed at a variation of the agreement. It's founded on MD6(a) for the purpose of removing ambiguity or uncertainty. We say that, Commissioner, when one has regard to the material there is no ambiguity or uncertainty in the terms of this agreement. We say firstly that the agreement of the clause, clause 5, is clear in its terms.

PN76

The weight of the extrinsic material including the objective material, that contained, when one looks at the change in the provision from EBA5 to the inclusion of clause 5 in EBA6 is consistent with the fact that there is a legally enforceable obligation upon Australia Post in that particular provision, that there is no ambiguity or uncertainty, and that a threshold of ambiguity and uncertainty is not met. Hence we say there's no jurisdiction which arises in respect of any purported variation to the agreement.

PN77

Now, Commissioner, furthermore we say that the effect of the application sought by Australia Post is directly - merely, Commissioner, at varying the agreement - that the terms of the variation that are sought are considered. Varying the agreement to define the legal effect of clause 5 of EBA6, it's not directed, Commissioner, at any variation to the meaning of the clause. So we say, Commissioner, section 170MD(6) is directed at removing ambiguities or uncertainties as to meaning and should not be exercised in circumstances where the provision is exclusively directed at confining, and we say that this is what this application is directed, Commissioner, at confining or defining what the legal effect of a particular clause is.

PN78

That is not what section 170MD(6) is directed at. So we'd say, Commissioner, in those circumstances, one, the application is not one which is directed at removing ambiguity or uncertainty we say as to mean, which is why the section 170MD(6)(a) is directed at. So we say, one, no jurisdiction arises. Secondly, we put the alternative contention, that insofar as the Commission considers that there is jurisdiction that in the exercise of its discretion it should not vary the agreement where the variation sought is merely directly not at changing meaning, but legal effect.

PN79

Commissioner, that concludes my opening submissions. May I have a moment just to have a word?

PN80

THE COMMISSIONER: Yes. Yes, Mr O'Grady?

PN81

MR O'GRADY: Yes, thank you, Commissioner. Commissioner, before I start my friend mentioned a second statement of Ms Herrington. I don't know that he's actually filed that. We received a copy this morning. I don't know whether he's going to seek leave to have the Commission's leave to file that at this stage or - - -

PN82

THE COMMISSIONER: I think we'll deal with that when it's pertinent.

PN83

MR O'GRADY: Yes, as the Commission pleases. Commissioner, has the Commission received the outline of submissions filed by Australia Post dated 11 July 2005?

PN84

THE COMMISSIONER: Yes, I have.

PN85

MR O'GRADY: If I could ask the Commission to mark that.

PN86

THE COMMISSIONER: Yes.

EXHIBIT #G1 OUTLINE OF SUBMISSIONS ON BEHALF OF AUSTRALIA POST DATED 11/07/2005

PN87

MR O'GRADY: Thank you, Commissioner. Commissioner, you will see in that document we've raised a number of objections to the application as it has been presented in the initial submissions of the CEPU and one of the objections that we raise in paragraph 4, Commissioner, which we say is still a good objection, is that the CEPU is asking through its application for the Commission to determine the issue of right of entry and its application of clause 5 in the abstract and in my respectful submission that's the wrong way to go about it.

PN88

The Commission will recall, and this is detailed in Mr Bass' written statement, how these matters came before the Commission and it all started, Commissioner, back in February of this year where there was an allegation made in respect of some bar code sorter operating procedures at the DLC, the Dandenong Letter Centre, and, Commissioner, I've read the transcript, you will recall that there were a number of hearings before the Commission. There were various allegations, there were stat decs filed about what had been done and what wasn't done. There were promises to investigate those matters and what's of note, of course, Commissioner, is that there is nothing in the union's material that's been filed in this proceeding that goes to any of that.

PN89

What we will be submitting at the end of the day, Commissioner, is that the clear reason for that is that when you have regard to what Mr Bass says in his statement, the whole thing was a furphy. There was absolutely no merit to the allegations being made by the CEPU on that occasion. You might even recall at one stage, Commissioner, there were eye witnesses to inappropriate procedures, and it was said that there was an eye witness who could give evidence about those things. Now, when that was explored, it was shown to be just wrong, and the reason for raising that complaint at this juncture, Commissioner, is that in my respectful submission the scheme in part contemplated by 285G is that disputes, when and if they arise, have a right of entry, come before the Commission and are determined on their merits, and that's not what the union seeks to do in this application.

PN90

What it asks the Commission to do in this application is to determine in the abstract and without any factual context as a matter of principle that if a permit holder of the CEPU thinks there might be a breach concerning an Occupational Health & Safety issue, then they have an unqualified right of entry, subject to the amendments that we've seen now in the revised order that's been filed by my friend, and has been set out in the submissions in reply, and in my respectful submission, the Commission, to the extent that it has a discretion in dealing with these applications, shouldn't go down that path. Just as a court, when asked to make a declaration in the abstract won't do it. It says, no, we're not here to provide advice in general things. What we're here to do is we're here to determine disputes and resolve them.

PN91

Commissioner, moving on. If the Commission is against me on that and we go on to determine the application, you'll see in paragraph 13 and following of my outline, we deal with the first line that the CEPU put forward, which is, it doesn't matter whether there is an obligation created by clause 5 or not. It's enough that a permit holder thinks there might be and that's a bona fide belief. Now, Commissioner, you'll see in paragraphs 14, 15 and 16, what we've done is we've set out the authorities that say that that approach is just wrong, that what is required when considering right of entry of the purposes of investigating a suspected breach is there must be an objective purpose, or a purpose that's capable of being justified objectively to justify the right of entry and this issue is squarely before his Honour, Moore J, in the Media Entertainment and Arts Alliance v Advertising Newspaper case, and you will see there that his Honour considered what his Honour, Gray J had said in a number of decisions regarding the right of entry.

PN92

Now, in particular if I could take the Commission to the quote that appears in paragraph 15 you'll see that it's said - - -

PN93

THE COMMISSIONER: No, just a moment, Mr O'Grady.

PN94

MR O'GRADY: Sorry, Commissioner.

PN95

THE COMMISSIONER: Are we talking from the document which I've marked as exhibit G1?

PN96

MR O'GRADY: We are, Commissioner, and unless there's been some changing of the paragraph numbering. Yes. It should be headed Australia Post Outline of Submissions.

PN97

THE COMMISSIONER: Yes.

PN98

MR O'GRADY: And can I ask, Commissioner, how many paragraphs appear in the document that you've got before you?

PN99

THE COMMISSIONER: 28.

PN100

MR O'GRADY: Yes, and - I apologise, Commissioner. There may well be - the automatic paragraph numbering may have bought me unstuck. If you could turn to page 5, the numbering that appears at the foot of the pages.

PN101

THE COMMISSIONER: Yes.

PN102

MR O'GRADY: Do you see on that page that there is a paragraph 15?

PN103

THE COMMISSIONER: Yes.

PN104

MR O'GRADY: It's that paragraph that I'm taking you to. It may be that the numbering has started again elsewhere and - it has, it has started again.

PN105

THE COMMISSIONER: It has indeed.

PN106

MR O'GRADY: Yes, I'm sorry for that, it's Microsoft Word, Commissioner. But - - -

PN107

THE COMMISSIONER: I don't think that's fair.

PN108

MR O'GRADY: It is a bane, I think, Commissioner, the automatic numbering.

PN109

THE COMMISSIONER: I'll get my associate to make sure that we do actually have the correct numbers.

PN110

MR O'GRADY: Yes, thank you, Commissioner. The paragraph I was referring you to is on page 5 and it's in paragraph 15 and you'll see there that there's reference to the following:

PN111

It is necessary to consider the purpose for which the entry was sought. The power in section 286(1) -

PN112

because this was considering the previous legislation:

PN113

are purposative powers, they are to be exercised for the purpose of relevantly ensuring observance of an award. Unless the paragraph has been used for that purpose for which it is conferred, there can be no breach of section 306.

PN114

Then his Honour turns to what his Honour, Gray J said in the current case where his Honour was considering whether it was a subjective purpose or an objective purpose, and you'll see at the foot of page 5, his Honour concluded:

PN115

It seems to me to be more like the purpose required is objective. That is, a particular right of exercise, a particular right to enter, inspect or interview can be said to relate in sufficient proximity to the object of ensuring the observance of the award.

PN116

And, Commissioner, you'll see that in paragraph 16 in the emphasised passages this theme of there being an objective purpose is reinforced by the court.
Now, as I understand the submission made by Mr Farouque in reply, he says, well, that's all well and good but that's the old Act and he points correctly to the fact that there is a difference in the language between section 285B and the section that was under consideration by their Honours, of section 186 of the previous legislation. The short answer to that submission, Commissioner, is that if Mr Farouque is right about that, then his Honour, SDP Polites, in the case concerning a Mr Tracey v BHP Iron Ore is wrong because in the Tracey case, which is print number PR905041, and I'll come to these authorities in due course, Commissioner, but in the Tracey case his Honour found there could be no valid right of entry under 285B unless the company was a respondent to the relevant industrial instrument.

PN117

The fact that the permit holder might have thought they're a respondent and that therefore the award or the certified agreement was being breached wasn't enough, there had to be an actual obligation before there could be the requisite objective purpose. The more long winded answer which I'll come to in due course, Commissioner, is that when you compare the section 286 with the current section 285B, it's clear that section 285B is actually narrower than the old section 286 and that is manifest when one has regard to the explanatory memorandum. That is, it was associated with the introduction of these provisions but unless the Commission wishes, I don't intend to take up time with that at this juncture.

PN118

Commissioner, the next way in which the union puts its case, as I understand it, is well, assuming that you do actually have to have an objectively justifiable purpose, there can be such a purpose here because clause 5 does impose obligations. It's not just aspirational. It is intended to impose enforceable obligations that give rise to a right of entry if a permit holder suspects that those obligations have been breached and we deal with that in the submissions that appear on page 8 of the outline that's been filed and you will see in paragraph 10 on that page we've set out the clause and the words that we've emphasised are the parties and I'd ask the Commission to have regard to that.

PN119

This is not just an obligation on Australia Post. It cuts both ways and that is an important instrument. Then you have the language of "are committed to" achieving and maintaining healthy and safe working conditions by abiding by. Now, Mr Farouque, in his opening placed a lot of emphasis on the "by abiding by", but he said nothing about the words "the parties" or "are committed to" and it would appear that that represents an acknowledgement. Those words cut against his construction of these:

PN120

this clause was intended to impose enforceable obligations upon Australia
Post -

PN121

because one has to wonder, if there is no distinction between any of the parties to the agreement, what type of obligations are imposed upon the non Australia Post parties to the agreement.

PN122

If it is intended to simply create enforceable obligations why use the words "are committed to"? Why not simply say the parties will comply with? Or Australia Post will comply with all relevant health and safety legislation? And you will see in paragraph 11 of the outline, if one is to construe this clause strictly, the only thing that we have promised to do is commit ourselves to a certain course, namely, to achieve and maintain healthy and safe working conditions in Australia Post work place by order of a relevant Occupational Health & Safety legislation. It's that commitment that could be said to be the subject of breach if this clause was one which imposed enforceable obligations.

PN123

If the parties had intended to simply bind Australia Post to all health and safety legislation and the Australia Post Occupational Health & Safety Agreement 1992, they could have used far clearer and very different words. You will see that I expanded upon that submission in paragraphs 11 and 12 on page 8. Commissioner, you will recall that in his opening Mr Farouque asked you to contrast the terms of clause 5 with what he said were the aspirational terms of the agreement, those set out in clause 2. That's unsurprisingly, Commissioner, one can also undertake the task the other way. Compare clause 5 with what we say are the clauses that are clearly designed to impose an obligation on Australia Post to do something in a way that if the don't do it, they can be subject to sanction and you will see in paragraph 13 of the outline we've set out some of the clauses in the agreement that say very clearly what Australia Post will or will not do.

PN124

That's the language of obligation, Commissioner. A commitment in a generic sense we say doesn't connote such an obligation and you'll see in detail those matters in clause 13. Clause 6.7 provides that employees can only be recruited on a fixed term basis in certain circumstances. 6.12 uses terms like "must not". 6.18 and 6.21 and 18.5 speak in terms of what shall happen. So in my respectful submission the agreement must be viewed as a whole, but one can't draw the inference that Mr Farouque asked the Commission to draw that the parties drew a clear distinction between aspirational clauses in clause 2 and commitment clauses in clause 5.

PN125

There is, in my respectful submission, an equally if not more compelling argument that flows from a contrast with the obligatory clauses that I've detailed in clause 13. Turning to the extrinsic evidence, Commissioner, as Mr Farouque has said, both sides acknowledge that the Commission can have regard to that evidence, but I think it's also fair to say both sides acknowledge that there are limits in the way in which that evidence can be used and we've set out in paragraph 17, which is on page 10, an extract from the decision of his Honour, Moore J, in Mosharan v University of New South Wales decision and what that case makes clear in my submission, Commissioner, is that the subjective hopes of the parties, what they hope to achieve by putting the particular clause isn't something the Commission can have regard to.

PN126

So to the extent that Ms Herrington says, well, this is what the union hope to achieve or that Ms Doyle said, well, what I wanted out of this clause was to be able to have a right of entry. We say that's not something the Commission really can have regard to. What the Commission can have regard to however is what they said when the clauses were negotiated because that reflects the common assumptions or the basis upon which the words that were adopted were used. In effect it stops somebody from being bound to a clause that they were tricked into or misled into believing would have a certain obligation through the conduct of the other side and that, we say, is a proper thing that the Commission can have regard to.

PN127

Now, as Mr Farouque has said, it appears to be common ground now that the previous clause, the clause in EBA5 that's attached to Ms Herrington's statement, didn't impose enforceable obligations and, as Mr Farouque has also said, it's clear that we had fights about this in the past because Ms Doyle had come to the Commission on a number of occasions and said we can assert right of entry under the previous EBA and had been told by SDP Kaufman and others, no, you can't, because it's aspirational. So was this a live issue, if you like, Commissioner, and it's in that context that the matter comes up for negotiation in the negotiations surrounding EBA6.

PN128

Now, Mr Rogan, who was present at that negotiation and of course you will understand, Commissioner, Ms Doyle wasn't, so to the extent to which she speaks about what was going on, it's clearly not admissible on any basis, but Mr Rogan was present and he details what took place in paragraphs 13 and following of his witness statement where he says:

PN129

The parties' recent agreement on the specific OH&S clause in the meeting held 5 May Australia Post made it clear that the agreed clause was merely a statement of intent and in no way intended to be an obligation capable of enforcement.

PN130

So this isn't something that Mr Rogan is keeping to himself. It's not something that he thought would happen. It's what he told the negotiators from the CEPU was there, under Australia Post's understanding. An attendance at the meeting of Mr Borg, Ms Herrington, Mr Bretag, others and it's apparent, Commissioner, also there was a Ms Justine Oldmeadow who I will come to in a moment who was, if you like, the neutral facilitator to try and help this agreement happen. Then in paragraph 14 Mr Rogan said:

PN131

In discussions on 5 May I indicated to the union and Australia Post that this provision is merely a statement of intention.

PN132

So once again Mr Rogan is saying this to the other side. He's not keeping it up his sleeve. He's not saying, well, I'll get you to agree to it and then I'll argue it down the track. This is what he's saying to them to their face.

PN133

He says:

PN134

I also explained that Australia Post was concerned that elements of the union would attempt to use such a clause as a means of obtaining entry to Australia Post premises under the Act and in the course of the meeting I told either
Ms Herrington or Mr Bretag or both who were representing the CEPU that Australia Post did not and would not accept that the agreed clause would give rise to any right of entry.

PN135

So once again, this is what's been communicated to the union. Now, he says in paragraph 15 that:

PN136

At the time either Ms Herrington or Mr Bretag told me their claim had nothing to do with right of entry. They wanted a specific OH&S clause because of the importance of OH&S to their members. I was also told by one of them that they did not disagree with our view that the clause would not give rise to right of entry under the Act on the basis of a breach of EBA6. Were it not for these comments, I would not have agreed to clause 5 in its current form.

PN137

Now, Mr Farouque has taken you to Ms Herrington's statement. We of course have had nothing from Mr Bretag and no explanation has been provided for why Mr Bretag hasn't put in material, and Commissioner, you will obviously be conscious of the inferences that would flow from that. The other statement we have from somebody who was there at the time is the statement of Ms Oldmeadow - sorry, it's a statutory declaration and it was filed separately. It was filed in reply to the material filed by the union.

PN138

You will see that this issue is dealt with in paragraph 3 and Ms Oldmeadow says:

PN139

At one meeting which took place in Melbourne I recall the parties discussing the inclusion of the EBA clause specifically referring to OH&S and safety provisions now claimed in clause 5. During the course of that meeting I recall the parties discussing the meaning and purpose of the clause. Members from the CEPU present indicated that their interest in including such a provision was to reiterate their concern regarding OH&S only. I clearly recall that included in the provision the parties agreed that there were no intention to incorporate into the EBA obligations arising from the Occupational Health & Safety Commonwealth Employment Act 1991. Rather that the provision was to be promissory in nature reflecting a commitment between the parties only.

PN140

Now, Commissioner, we would say that that recollection from the independent person in these negotiations is consistent with what Mr Rogan is saying, was the underlying assumption behind the inclusion of clause 5, that it was not to change the status quo, that it was not to give rise to enforceable obligations that could be used as a means of right of entry, and we say that's reflected in the language I the clause where it speaks in terms of the parties being committed to a certain outcome.

PN141

Commissioner, in paragraph 20 and following I deal with the Big W Stores decision and, of course, Commissioner, you were a member of that Full Bench and are familiar with it. The initial point I would make, Commissioner, is that that was concerned with a very different part of the Act to what you're considering. You weren't considering right of entry in Big W. What you were considering was section 170LW and whether you could have - sorry, this is on page 12, Commissioner. What you were considering was whether or not you could have a dispute arising under an agreement over the clause that was there under consideration and an argument was run by those representing the company.

PN142

Well, you can't have a dispute arising under the agreement because it's only aspirational and the Full Bench rejected that. But in my submission that's a very different type of proposition to what's been put before the Commission today, which is that if a permit holder believes that there is any potential Occupational Health & Safety issue, they have a right of entry under 285B on Australia Post premises. If there is any potential breach of either the Occupational Health & Safety Commonwealth Employment Act or the 1992 agreement, then they have an automatic right of entry and can bypass their restrictions of right of entry that appear in sectio 285C with respect to meeting and contacting and speaking to members.

PN143

You will see in paragraphs 22, 23 and 24, I've set out there differences in the clauses, Commissioner, between the two provisions. They are, we would say, quite different in effect, but the primary position is that the Big W case really wasn't concerned with the issue that you're concerned with and shouldn't restrict the way in which you deal with it. On page 13, I come back to the fact that the clause refers to the parties and if it does impose an obligation on Australia Post one assumes it imposes an equal obligation upon the union parties to the agreement and what it relevantly does is that it dictates the way in which the commitment to Occupational Health & Safety will be achieved, namely through abiding by all relevant Occupational Health & Safety legislation and the 1992 agreement.

PN144

As appears in paragraph 27, which is at the foot of page 13, the Occupational Health & Safety Employment Act sets out a comprehensive regime for dealing with health and safety and provides, among other things, for health and safety representatives and health and safety committees. There are powers conferred on those representatives in those committees. The 1992 agreement similarly provides for an extensive regime of union involvement in designated work groups and the election of Occupational Health & Safety representatives and gives those representatives a particular role in dealing with Occupational Health & Safety issues when and if they arise, and in Mr Bass' statement at paragraph 10 and following, Commissioner, he details the regime and he attaches the 1992 Health & Safety Agreement.

PN145

In my submission that agreement reflects the way that the parties have agreed between themselves to deal with Occupational Health & Safety issues. There is a clear role for the union in that agreement, both as far as the structures it puts in place and the various consultative committees and ways of pursuing Occupational Health & Safety issues that it outlines and there is nothing in that agreement, Commissioner, that suggests that a union party can pursue Occupational Health & Safety issues by or through the use of the right of entry powers conferred by section 285B of the Workplace Relations Act.

PN146

The agreement is appended as PB4, Commissioner, and I think it's probably about halfway through the bundle of material that's there, and I'll obviously take the Commission to the terms of the agreement in due course, but it is a comprehensive agreement. It's got a clear structure, and indeed, if I can just take you to the one provision, deals with the role of unions in clause 3.3 and then in clause 4 there is a heading Structural Arrangements, and in 4.1 it says, -

PN147

Australia Post management and involved unions agree that the following structural arrangements involving management, employees and involved unions provide an efficient and effective basis of support for management to provide safe working conditions in Australia Post. These arrangements are to be read in conjunction with the OH&S Act and do not learn any rights or obligations under that Act.

PN148

and then those arrangements are set out.

PN149

Now, if the union wants to pursue Occupational Health & Safety issues and if clause 5 imposes obligations, we say clause 5 obliges them to pursue it through these arrangements, not, if you like, through a side wind or through the back door under 285B, because that's what they've told us they're going to do. The other application that is on foot is our application under section 170MD(6) and the primary position of Australia Post, Commissioner, is that clause 5 is clearly aspirational and should be read as such and if you agree with that you don't have to deal with the application to vary, Commissioner.

PN150

But our position is that if you don't agree with that, then it is clearly ambiguous and in those circumstances it would be appropriate to vary it so as to reflect the merits of the matter and to reflect what was said by the parties in the course of the negotiations.

PN151

THE COMMISSIONER: When you say the merits of the matter, are you referring to the incident of February 2005?

PN152

MR O'GRADY: That as an example, but more generally, Commissioner, that the - - -

PN153

THE COMMISSIONER: I beg your pardon?

PN154

MR O'GRADY: Sorry. That's a good example, but I'm speaking more generally. If you accept my primary position that we really should be talking about the incident of February 2005, a lot of these other issues all go away because there's no evidence. The union has chosen not to call any evidence about those incidents, but this is all put on the basis that you accept the union's invitation to explore these matters more generally and if you were to do that you then, in my submission, under the MD6 application, have to ask, well, how is clause 5 going to work in practice if it does impose obligations that a permit holder can have regard to in asserting a right of entry under 285B, because as you will be aware, Commissioner, Occupational Health & Safety legislation is couched in very broad language.

PN155

It is, you know, an employer shall make as safe as is practical in the work place, shall derive or have systems of work planned, instruction and training, that insofar as is practicable make the work place safe. Now, if it is open for a permit holder to say, well, look, I suspect you haven't complied with that general obligation, therefore I can come in and I can assert all of the rights under 285B to investigate the suspected breach. We would say that that's going to have a very problematic application. It would in effect give a permit holder carte blanche to review any aspect of Australia Post's operation simply by saying, well, I think there might be a safer way that this could be done and I want to investigate that. And all of the powers under 285B of interviewing people, going on to site, having access to records would be available to the permit holder in those circumstances.

PN156

So from a broad merit point of view we say it's not something the parties should be required to comply with and if you have the power under MD6 to vary it, and I want to take you very briefly to a decision of SDP Lacy's in the Esso case on that, we say you should do so. But the other aspect I'd ask the Commission to have regard to is what was said in the negotiations. Even if at the end of the day the Commissioner forms the view, look, you were a bit incautious, Australia Post. The alarm bells should have been ringing and you should never have agreed to clause 5 in its current form, we say that the course of those negotiations, Australia Post having raised this issue and the union not having said, well, we do intend to use it for right of entry, that's exactly what we're here about and we believe it's important for our membership that they can have - that permit holders have access to the premises under 285B to explore any Occupational Health & Safety issue, is a matter that under MD6 you can have regard to.

PN157

Ms Herrington doesn't say that that was said. Ms Herrington doesn't say she was up front about it and said what we want to do is open up the flood gates for Ms Doyle to come on to your premises. She says, oh, well, I fudged it a little bit. Is said, well, if somebody wants to argue it down the track, well, they can argue it and what will be will be. If we're talking about such a radical change from an aspirational clause to one that does have these consequences, the failure of the union negotiators to explain to everybody what the downside was going to be and then get their assent on that basis, we say is a matter that the Commission can have regard to.

PN158

The decision I'd ask the Commission just to have regard to, and I only refer to it because it succinctly summarises the principles. It's the decision of SDP Lacy in the Esso Australia Offshore Certified Agreement case, it's PR951846 and at paragraph 9 his Honour deals with the jurisdictional prerequisites and one of them is, of course, the Commissioner must be satisfied that the wording of the provision is susceptible to more than one meaning. But his Honour goes on to note in paragraph 9:

PN159

Although it is not enough simply to establish that there are rival constructions or disputes as to how a particular provision should be applied, the Commission will generally err on the side of finding an ambiguity or uncertainty where there are rival contentions advanced and an arguable case is made out for more than one of them.

PN160

We say that if you're against us on our primary position, that it clearly is aspirational, then that's clearly the case here.

PN161

In paragraph 10 his Honour said:

PN162

In determining whether a provision is ambiguous I assert the Commission is required to undertake an objective assessment of the words using the agreement. The Commission may have regard to this round of provisions and the interaction of provisions in determining whether ambiguity or uncertainty exists.

PN163

Then finally his Honour, at paragraph 30, having satisfied himself he had jurisdiction, went on to deal with the discretion of 170MD(6) proposes and said:

PN164

Once the Commission is satisfied that a provision in or the operation of a certified agreement is ambiguous or uncertain, it has a discretion as to how or if it should act, direct or otherwise deal with those ambiguities.

PN165

Then in 31 he says:

PN166

There are two key criteria upon which the exercise of the Commission's discretion should be premised, namely the intention of the parties with respect to the offending provisions and the merits and/or reasonableness of their competing constructions.

PN167

That's the approach that we would be urging on the Commission. Commissioner, one thing, you will recall, Commissioner, that before Mr Farouque sat down, he had a discussion with me and what he asked was whether the other union parties have been advised of the 170MD(6) application and I must say, I'd been assuming that that wasn't an issue, but if it is to be an issue we'll make inquiries and if it is to be an issue we might have to address the Commission on that in due course to the extent to which they - - -

PN168

THE COMMISSIONER: Well, you will need to address me on that because the parties don't simply comprise Australia Post and the CEPU. There are a number of others.

PN169

MR O'GRADY: Yes, and it wasn't something that had been raised previously, Commissioner, and I just want to flag it and I'll get instructions and I may have to raise it before the Commission in due course but those are the only submissions I'd seek to make by way of opening at this juncture. If the Commission pleases.

PN170

THE COMMISSIONER: Yes. There is just one further thing and that goes to the draft order which is attached to the application in AG2005/5484.

PN171

MR O'GRADY: Yes.

PN172

THE COMMISSIONER: The same error occurs as the error that has previously been identified in Mr Rogan's statement. The clause 5 of EBA6, which is in the draft order, is not the precise terms of EBA6 in the certified agreement.

PN173

MR O'GRADY: Yes, Commissioner, and I apologise for that. I suspect I was working off the same copy of the enterprise agreement that you had attached to Mr Rogan's statement and I wasn't astute enough to pick up that the "all" should be there. I think it's common ground that the "all" should be there.

PN174

THE COMMISSIONER: It is intended?

PN175

MR O'GRADY: And we are seeking to deal with that. I'm reminded, Commissioner, by that issue of the order sought, my friend did put an alternative submission that MD6 shouldn't be used in the way in which we seek to use it in this application because we're seeking to vary the legal effect of the clause as opposed to the meaning of its words. In my submission, that's really a distinction without a difference, if you like. The whole focus of the words used in certified agreements is what legal effect they have. But if it assists my friend, what we say is the ambiguity arises with respect to the words "committed to and abiding by" and we're seeking to ambiguity asserted by those words. Rather than change those words themselves within the application, we have sought to make it very clear through the clause that we've added at the foot, but of course the Commission isn't confined to the terms that we've set out in our application. It's the vice that we're seeking to identify that we'd ask the Commission to address. If the Commission pleases.

PN176

THE COMMISSIONER: Yes, thank you, Mr O'Grady. Mr Farouque?

PN177

MR FAROUQUE: Commissioner, thank you. There are, as the Commissioner is aware, two witnesses that the CEPU intends to call. One is Ms Doyle and there's a short statement from Ms Doyle upon which we propose to rely on, and also Ms Herrington, there are two statements in respect to Ms Herrington that we propose to rely on. Commissioner, I should confirm, Commissioner, or clarify with the Commission that Ms Herrington is, because of a commitment at - a CEPU commitment in respect of offices of the union, a general meeting of offices of the union, is unavailable today to attend the Commission to give evidence, but is available tomorrow and can make herself available if the Commission so considers it appropriate at 8.30 or 9 o'clock to hear that evidence in respect of this matter. So, Commissioner, we're in a position to call Ms Doyle today, but with respect to Ms Herrington she'll be available, Commissioner, tomorrow.

PN178

We've indicated that to my learned friend. I don't think that that will cause any difficulty in terms of this matter extending beyond the three sitting days which the Commission has currently allocated to it.

PN179

THE COMMISSIONER: Well, Mr Farouque, it cannot because I simply do not have any more days this year and this matter has been going on now since February, the genesis of this matter. People have been advised well in advance of the hearing dates and as a matter of common courtesy, if this was going to occur, I recognise that you've advised Australia Post, but I think that you should also have advised the Commission.

PN180

MR FAROUQUE: I do apologise for that, Commissioner.

PN181

THE COMMISSIONER: Now, I don't anticipate it's going to cause any problems, but I'm just alerting you to the fact that you have known for months and months about these dates. All right. Is it your intention then to proceed with Ms Doyle?

PN182

MR FAROUQUE: I do intend to proceed with Ms Doyle, Commissioner, and I should also indicate that in respect of the documents which we rely on for the dispute notification and the documents attached to that notification, we seek that to be marked, Commissioner. I think when we were before you at the first instance at which this matter was dealt with, the Commission indicated that the parties need not file all the material once again and a list of material that was - and the Commission indicated that it would forward to the parties a list of documents which had already been filed in the proceeding and that is a letter which has been sent to the parties dated 31 May 2005 after the matter had been before the Commission on 26 May 2005.

PN183

We note that one of the documents was the dispute notification and the attachments to it and we seek that document, Commissioner, to be marked. It merely crystallises some correspondence which went between the parties which I think some of it's also attached to Mr Bass' statement. We seek that that be marked, Commissioner.

PN184

THE COMMISSIONER: There are many documents which were provided in the proceedings before the Commission as currently constituted in March and May and then through to July. I'm just wondering how best to deal with these. There was a letter sent to you by my associate on 31 May which outlines all the documentation which was received in relation to this matter. For the purpose of these proceedings, even though the copies of the same documentation occurs elsewhere, for example, Mr Rogan's statement, Mr Bass' statement, et cetera, it might be useful to mark the summary of the documentation which is listed under seven different headings, to mark all that documentation as one exhibit.

PN185

MR FAROUQUE: Yes.

PN186

THE COMMISSIONER: Then how we can proceed with dealing with any of it I think should follow. For example, Mr Farouque, if you wanted to refer to the letter from Mr Bass to ..... dated 15/12/04, that would be under 1.2, and similarly bring the permit which would be - we could number those. Does that sound manageable, Mr O'Grady?

PN187

MR O'GRADY: Yes, it does, Commissioner.

PN188

THE COMMISSIONER: Yes, thank you. I'll mark the earlier documentation which was received in these proceedings as exhibit F3 and that will be in accordance with the statement which was prepared by the Commission on 31 May.

EXHIBIT #F3 EARLIER DOCUMENTATION PREPARED BY COMMISSION ON 31/05/2005

PN189

THE COMMISSIONER: Yes, Mr Farouque?

PN190

MR FAROUQUE: Thank you, Commissioner. The CEPU call Ms Doyle.

PN191

THE COMMISSIONER: It might also be useful whilst Ms Doyle is coming to give evidence, if I mark the proposed order.

PN192

MR FAROUQUE: Commissioner, the proposed order in its amended form is contained in the second submission filed by the CEPU.

PN193

THE COMMISSIONER: Yes, I beg your pardon.

PN194

MR FAROUQUE: It's not actually a separate - - -

PN195

THE COMMISSIONER: It's not necessary.

PN196

MR FAROUQUE: Yes.

<JOAN DOYLE, AFFIRMED [11.43AM]
<EXAMINATION-IN-CHIEF BY MR FAROUQUE

PN197

MR FAROUQUE: Ms Doyle, can you state your full name for the Commission?---Joan Doyle.

PN198

Your occupation?---Union Secretary, Branch Secretary.

PN199

Your address?---(Address supplied.)

PN200

Ms Doyle, have you made a statement in this matter?---I have.

PN201

Can I hand you a copy of this document, Ms Doyle. Ms Doyle, I've handed you a document there. Is that the statement that you made in this matter?---Yes.

PN202

Are the contents of that statement true and correct?---Yes.

PN203

Are the exhibits attached to that statement, JD1, JD2 and JD3?---Yes.

PN204

Are the contents of the statement true and correct?---Yes.

PN205

I tender that statement with the exhibits thereto, Commissioner.

PN206

THE COMMISSIONER: Does the statement have four paragraphs?

PN207

MR FAROUQUE: Yes, it does, Commissioner.

EXHIBIT #F4 STATEMENT OF JOAN DOYLE

PN208

MR FAROUQUE: I have no further questions of the witness, thank you, Commissioner.

<CROSS-EXAMINATION BY MR O'GRADY [11.46AM]

PN209

MR O'GRADY: Ms Doyle, are you familiar with the terms of the outlines that have been filed by the CEPU in these proceedings?---In general.

PN210

Can I take you to paragraph 13 and I'll just read you a part of it, I just want to see what you say in this case. Paragraph 13 of the submissions in reply, which is exhibit F2, says:

**** JOAN DOYLE XXN MR O'GRADY
PN211

Clause 3.1(iv) of EBA5 and read in context is evidently of an aspirational nature.

PN212

Now, I think the numbering might be wrong there. It should be Roman (vii), but you're familiar with clause 3.1(vii) of the previous EBA, EBA5?---That's right. We felt it didn't provide adequate protection.

PN213

So do you agree with that, that it's evidently of an aspirational nature?---We don't agree. We believe that what's in the EBA should be honoured but given that that was raised as an issue before EBA6 was negotiated, we endeavoured to get clearer words.

PN214

It's the case, isn't it, Ms Doyle, that with respect to clause 3.1(vii) of EBA5 you had asserted a right of entry in respect of that clause, hadn't you, on behalf of the union?---Not myself personally.

PN215

But you were aware of other members within your branch who were certified?
---That's right, yes.

PN216

And you'd come to the Commission in respect of disputes over that assertion of a right of entry?---Yes. We appeared before Senior Deputy President Kaufman. It was conciliation only.

PN217

I understand, and in the context of those disputes, Australia Post maintained that clause 3.1(vii) was only aspirational, it didn't give rise to a right of entry because it didn't impose an obligation?---That's right, and we found that was quite contradictory when they wished to raise other clauses in the EBA that talked about, you know, their business requirements in similar terms which they maintained weren't aspirational.

PN218

Is it fair to say that you were aware prior to the negotiation of EBA6 that Australia Post took the view that the Occupational Health & Safety clause did not give rise to a right of entry?---I would say that that was an argument being run by a very small part of Australia Post. Perhaps I would characterise it as an administration that perhaps didn't comply with the Australia Post's intention to provide safe and healthy work places and I would see it was driven by certain administration's facility.

PN219

It's the case, isn't it, that that was the position that Australia Post took in all proceedings concerning right of entry over clause 3.1(vii) in this Commission?
---As I say before, it was a very initial conciliation. There were some technical problems with the notification. I remember SDP - - -

**** JOAN DOYLE XXN MR O'GRADY
PN220

Sorry, Ms Doyle, but I suppose my question I think is a relatively simple one. It's the case, isn't it, that in all proceedings concerning a dispute over right of entry under clause 3.1(vii) Australia Post took the position that that clause did not give rise to a right of entry in the Commission?---That was one line of argument that was never tested.

PN221

I understand. Now, you refer in exhibit 1 - do you have your statement before you, Ms Doyle?---Yes.

PN222

You set out at JD1 a letter that you received from Mr Bass, that's the case, isn't it?---Right.

PN223

Yes, and that concerned the operation of a bar code sorter?---Yes.

PN224

And the transportation of ULDs within the centre?---That's right.

PN225

Can you just explain to me what a ULD is?---It's a Unit Loading Device which is a metal cage where the mail is placed in there so that it can be easily shifted.

PN226

As a result of that there was an attempt by Mr Gorman and Mr Dohrman to assert a right of entry under section 25B?---Yes. This was a repeated and serious breach of two issues that the shop stewards and health and safety representatives had been trying to solve and particularly the second breach of a ride-on fork lift in a place where pedestrians were, it wasn't so much that that had been happening very regularly, but it was more that there was a cover up involved in it so that it hadn't been investigated by a HSR. A HSR hadn't been allowed near it and basically it was we needed to do an investigation of what was a serious health and safety issue.

PN227

What provision did you understand had been breached of Occupational Health & Safety legislation?---Well, my understanding is that our EBA5, Australia Post have guaranteed to abide by all OH&S legislation which includes regulations and there are national codes of practice that cover both of those to health and safety problems.

PN228

Just so I understand it. You understood that the breach that was suspected by Mr Gorman and Mr Dohrman was a breach of a code of practice which was referred to in a code of practice, is that right?---Well, I wasn't prejudging anything. Basically it was a suspected breach and we sent people who were well qualified to go and investigate. Ms Dohrman is well qualified and Mr Gorman is the resident organiser for Dandenong Letter Centre.

**** JOAN DOYLE XXN MR O'GRADY
PN229

So when you mentioned a code of practice a moment ago, why did you make reference to a code of practice? When I asked you what provision of Occupational Health & Safety legislation had been breached, you told me about a code of practice, why did you mention that?---Because the EBA says they'll comply with all legislation which includes the regulations and the codes. Similarly it says they will comply with the OH&S agreement which also confers some rights upon us to be involved in solving problems to do with OH&S. So all of those matters came into play.

PN230

I see. Was there any particular code of practice that you understood had been breached in respect of either the ULDs or the bar code sorter?---Well, we hadn't investigated that far but certainly the manual handling one and the occupational overuse one was involved in the bar code sorter. There are quite specific regulations to do with fork lifts of which I'm not across, because I don't work in the transport area per se and which Mr Dohrman is an expert so given that it wasn't my notification, I was relying upon their expertise to, you know, if they suspect a breach, basically they are the people who put in the notification and understand what the requirements are, the legislation and the OH&S agreements there for everyone to read.

PN231

So to your knowledge did they identify any particular code of practice which they suspected as having been breached?---Well, certainly in the bar code sorter, yes.

PN232

So what code of practice did they identify as having been breached? As a precursor to coming in on to or asserting a right of entry?---The - it's apparent. With the manual handling codes and the occupational overuse codes there were several issues involved there with the bar code sorter. Similarly with - - -

PN233

Sorry, Ms Doyle, I don't mean to cut you off. But I'm concerned that you, I suppose, answer the question I've asked you. Prior to asserting a right of entry, which codes of practice did Mr Gorman and Mr Dohrman identify as having been breached in respect of the bar code sorter?---Well, given this event happened, I believe, in February this year, I remember talking to Mr Dohrman about the bar code sorter and having only one or two people running it when in actual fact there's an agreement and the safe operating procedures say that there has to be at least three and, in fact, on certain machines, four that he felt there were breaches. The - - -

PN234

Sorry, Ms Doyle, did he identify?---He did, but I've got - I couldn't quote you which ones now. I have no idea now.

**** JOAN DOYLE XXN MR O'GRADY
PN235

That's fine, Ms Doyle, and I suppose if you don't know, I'd be assisted if you just simply say you don't know. If you don't know which ones he identified, then - - -?
---But we had a discussion about it being a breach of the legislation and regulations. Similarly, if I could answer the question, on the ride-on fork lift, it's quite clear that pedestrians and fork lifts don't mix and that that's part of the regulatory framework about fork lifts.

PN236

Ms Doyle, once again, once again, I'm asking you about specific codes - - - ?
---Okay.

PN237

Or pieces of legislation and if you don't know - - - ?---Okay. OH&S Act requires that when - that if the HSRs wish to investigate an accident or incident particularly of a serious nature that they have a right to do that. Now, in this case they were specifically excluded from doing that and Greg Wong was brought into it. The P400 was written out without a HSR being involved and having talked to the senior shop steward, having tried to get the truth of the matter of what happened, it was decided that there was a suspected breach, that there were grounds for investigation and the organisers attempted to do what our members pay us to do, and that is to look after their health and safety.

PN238

Ms Doyle, once again, what I'm concerned to understand is which piece of legislation do you say was suspected as having been breached?---Well, I suggest that you ask Mr Dohrman that because he was well aware of which breach. He explained it to me in general terms. I no longer remember which clauses, et cetera, but I'm sure that people - you know, we can go to the regulations if you'd like.

PN239

It is the case, isn't it, that Mr Dohrman's understanding of which legislation he thought was breached is going to be better than your understanding?---That's right. That's why we employ him because he's a consulting engineer, he's an agronomist and he's worked in the health and safety field for 30 years.

PN240

Do you have any explanation as to why in a proceeding which is all about Mr Dohrman not being granted a right of entry to investigate a breach of this nature, no witness statement has been filed on his behalf?---Because the matter is simply a legal one about when there's a suspected breach, do we have the right to enter and the union maintains that we do and we maintain that the protocol backs that up and the history of the union's relationships with management, until fairly recently, have been that we have worked cooperatively in trying to ensure the health and safety of people who work for Australia Post and that's simply what we're trying to do.

**** JOAN DOYLE XXN MR O'GRADY
PN241

So does it flow from that, Ms Dole, that the union made a tactical decision that it wasn't to have this issue determined in the abstract, not by reference to the people who were on the ground who knew exactly what had happened, Mr Gorman and Mr Dohrman?---Excuse me, did you say a practical or a tactical?

PN242

A tactical?---Can you repeat the question?

PN243

Well, I've asked you why Mr Dohrman hasn't come along here to give evidence. He's the one who knows about it. You're, with respect, guessing to understand about what code might have been breached or not, that's right, isn't it? And I don't mean that in a pejorative way, you're not - - - ?---I don't have the material before me and - - -

PN244

You're speculating?---I think - I'm not speculating at all. I'm just not able to specifically refer you to a specific reference.

PN245

But the person who could - - - ?---We - obviously we could run cases that went for 10 days or longer but it was a very simple point. The other point I'd like to make is that breaches of OH&S regulations go on quite frequently at Dandenong Letter Centre. There have been technicians who have nearly had their heads trapped in machines, there's been doors that crash down on people with narrow misses, the fork lifts, you know, but we do not attempt right of entry except if the system fails. So what we're saying is that here the system had failed, we wanted to investigate the suspected breach and this case here is about asserting our lawful right to enter to do that and the way we run a case is really, I rely upon our legal advice as to how to do it and we'll try to do it as cheaply and simply as we can.

PN246

So does it boil down to the proposition, Ms Doyle, that you got advice that it wasn't necessary to call Mr Gorman or Mr Dohrman, because it was a legal point?---That's right.

PN247

I understand. Now, you made reference to this incident. Have you had a chance to look at what Mr Bass says about this incident in his witness statement?---I read it some time ago and I read it at the time, obviously so - - -

PN248

Do you have a copy of his statement before you?---Yes. Could you refer me to - - -

PN249

Yes, of course. If you start with paragraph 12?---Could you - a witness statement?

**** JOAN DOYLE XXN MR O'GRADY
PN250

Of Peter Alfred Bass?---And over - - -

PN251

To be fair, so that you have it in full context, just after paragraph 4?---It's about bar code sorters?

PN252

Perhaps if you go back to paragraph 4, Ms Doyle, sorry. You wouldn't disagree with anything that appears in paragraph 4, I wouldn't have thought?---No. I assume that that's correct.

PN253

And assuming that what appears at paragraph 5 correctly sets out the correspondence from Mr Gorman and Mr Dohrman and the Commission's got access to the letter in due course, you wouldn't disagree with anything in paragraph 5?---No. Now, there was a correction to the matter of the ULDs. What had happened, because it was basically a cover up, because no HSR had been allowed to investigate it, there were rumours running around DLC about what had happened and originally we had talked to someone who wasn't an eye witness and it actually took us some time to track down the eye witness at which we correctly stated what had happened and we believe that our version of it is far more full and accurate than what was put on the P400, the official record of the incident.

PN254

I understand, but putting that to one side, do you disagree with anything in paragraph 5?---Well, I think that's the date of when the ULDs fell off the fork lift which is quite a serious incident.

PN255

Just dealing with what you raised a moment ago, do you accept that it's not uncommon for there to be rumours floating around letter centres, or Australia Post facilities?---That's why we endeavour to investigate things because the truth's not - you know, evidence straight up. You know, we've had reports of four stacked ULDs blowing over in the wind which would be impossible and, you know, when you're told things like that by management, you see the need to go and investigate further, but - - -

PN256

Do you say that if you're right about what clause 5 of EBA6 means, that as part of that investigation, a permit holder would come on to Australia Post premises to investigate the rumour to see whether there as a breach?---No. It's not a rumour. We wouldn't have the resources to investigate every rumour. We'd be down there 24 hours a day, six days a week and what - - -

**** JOAN DOYLE XXN MR O'GRADY
PN257

Do you accept that the only limit, Ms Doyle, upon you taking the approach, if you're right about what clause 5 of EBA6 is, the only limit upon - you take the approach of asserting a right of entry to investigate each and every rumour that comes up would be the lack of resources of your union?---No. We would take a common sense view of the matter and basically there are some systems in place, but it's quite evident that they've failed and when there's a failure of those, a breach - - -

PN258

No, Ms Doyle, I think you've answered, so that you say you take a common sense approach. Do you agree with me that if you're right about what clause 5 of EBA6 means there is no limit within the clause itself that would prevent you or your union from asserting a right of entry in respect of a rumour?---No, there's legislation - - -

PN259

MR FAROUQUE: Commissioner, I object to the question because the question is really directed at the witness' view about the legal construction of the clause and in my submission that evidence to that effect from this particular witness can't necessarily assist this Commission in respect of the matters at issue between the parties.

PN260

THE COMMISSIONER: Well, Ms Doyle is an expert witness to the extent that she has been involved in the underpinning dispute which has led to these matters, and integrally involved, and I want to hear her view in relation to whether there is any limit on the union asserting a right of access under clause 5. But I think perhaps you are labouring the point, Mr O'Grady, but I still do want to hear an answer to that question.

PN261

MR O'GRADY: Ms Doyle, perhaps if I can repeat the question. Do you agree with me that if the union's construction of clause 5 of EBA6 is accepted, there is no limit within the words of the clause itself that would prevent the union from asserting a right of entry to investigate a rumour in the sense that you've described already?---The limit is within the legislation, it's quite difficult to breach OH&S legislation and regulation in that it has words in it where the employer has to reasonably comply or, you know, it's sort of boundaries around it, and with these particular incidents, they had been repeated serious and therefore we believed it fell within the clause 5.

**** JOAN DOYLE XXN MR O'GRADY
PN262

I understand. Do you agree with me that in the OH&S legislation, and I'm referring you to the Occupational Health & Safety Commonwealth Employment Act, that there are quite detailed provisions governing the investigation of potential breaches of occupational health and safety issues, and if you're not familiar with the legislation, then indicate that?---Well, I am. It's not my specialty, obviously, and that's why we employ a specialist industrial officer, but I am aware of the roles of the Health & Safety Rep with the role of the OH&S Committee, but we would maintain that the role of the union is also there and that Australia Post's OH&S agreement binds them to a cooperative approach which they were refusing to honour.

PN263

My question, Ms Doyle, was do you agree with me that in the Occupational Health & Safety legislation there is quite a detailed description of right of entry and investigation of occupational health and safety issues?---It's not the only right of entry provision. We're relying on the Act, the Workplace Relations Act.

PN264

I have appreciated that aspect of the case, Ms Doyle. I suppose, all I'm asking, and if you don't know the answer, but do you accept that there is a detailed regime set out in the Occupational Health & Safety Commonwealth Employment Act?
---There is, but it's very slow.

PN265

Dealing with these issues?---It's very slow, it's very cumbersome and it does not protect the membership from what was going on at the Dandenong Letter Centre and there's other redress available.

PN266

So is it fair to say you agree with the proposition that there is a detailed regime for dealing with investigating Occupational Health & Safety issues, but you think it's got limitations because it's slow and cumbersome, among other things?---Yes, and it wasn't being honoured either.

PN267

To the extent to which it's not being honoured, there are mechanisms of dealing with that, aren't there, set out within the Act itself?---And again they are very slow and cumbersome.

**** JOAN DOYLE XXN MR O'GRADY
PN268

So once again do you agree with me that there are mechanisms for dealing with problems of that nature, but they're slow and cumbersome, that's your evidence?
---They are and membership tend to want to take quick and effective action such as strike action and we've seen that at Dandenong Letter Centre where we - you know, people feel their safety is threatened, that they tend to wild cat about it and given that the HSRs and the shop stewards were attempting to get management to follow due process and haven't been unable to do that to, you know, and there were, for want of a better word, cover-up happening, that we felt that we needed to use other avenues to lawfully attempt to solve people's health and safety concerns.

PN269

Is it fair to say, Ms Doyle, that the recourse that was had by Mr Gorman and Mr Dohrman to 285B was designed to bypass or circumvent the procedures for dealing with a failure to comply with the Act, the Occupational Health & Safety Act, that the union took the view was too slow and cumbersome?---They're complementary.

PN270

But you've accepted that you could have, it would have been an option, wouldn't it, for the union to have said, look, you are not complying with the Occupational Health & Safety Employment Act; we're going to address that through the mechanism set out within that Act?---Perhaps I could give you an example - - -

PN271

Well, would you accept the proposition or not, Ms Doyle, that that was an option that was open to the union?

PN272

MR FAROUQUE: Commissioner, the witness should be allowed to answer the question. Ms Doyle was commencing to answer the question and she was cut off. She should be given the liberty to answer the question.

**** JOAN DOYLE XXN MR O'GRADY
PN273

THE WITNESS: Can I - this is just an example. We have OH&S training for our representatives. Now, Australia Post Victorian Administration prevented that training from happening for up to 11 months. Now, the Act provides that they must be trained within 12 months. So when it became apparent that they couldn't get their training within 12 months, we contacted Comcare with a breach and basically eventually at the death knock, the Victorian Administration managed to have OH&S safety training. There have been other incidences like that where we cannot afford, we cannot put members' safety at risk by, you know, following those procedures that are very long and cumbersome when there is another avenue of redress that's quite lawful and has been, particularly crafted put into the EBA with the membership's desire to have it there and it's been signed off on.

PN274

MR O'GRADY: So in answer to my question, yes, that recourse was had at 285B because we didn't want to have to deal with the limitations of the procedures set out in the Occupational Health & Safety Act?---There was another alternative.

PN275

The reason why you took that other alternative is you felt it was a better way of dealing with the problem than going through the mechanisms set out in the Occupational Health & Safety Act?---Well, I'd say that we did both. Obviously the HSRs were trying to raise the incident from day 1. The union was trying to raise the incident from day 1 and initially there was just a cover up.

PN276

With respect to the example you gave us, Ms Doyle, there had been an issue over election and selection of HSRs, hadn't there?---Yes. We had tried to have eight - well, we tried to get more health and safety reps at Dandenong Letter Centre. As the Commission knows, it's a huge workplace that works around the clock, and there had only been four HSRs and this is another example where we had attempted to resolve this issue over a 12 month period which you'd think it was a very simple issue, but that Australia Post management had been resisting common sense solution, and again we were about to list that through the OH&S avenue, but they complied at the last minute, on the court's door.

PN277

Now, in addition to the regime set out in the Act, there's also an extensive regime set out in 1992 agreement, isn't there?---That's right.

PN278

And you're familiar with the terms of that agreement?---I am.

PN279

Do you have a copy of Mr Bass' statement?---Yes.

PN280

If you could turn to exhibit 4?---Yes.

**** JOAN DOYLE XXN MR O'GRADY
PN281

Now, this is an agreement struck between Australia Post on the one hand and the unions who undertake work in Australia Post on the other hand, is that the case?
---That's right.

PN282

And this is the agreement that's referred to in clause 5 of EBA6?---Yes.

PN283

And in clause 1.3, it says that the agreement is to be read in conjunction with the OH&S Commonwealth Employment Act which provides the statutory framework for its implementation?---Yes.

PN284

And the codes of practice, Australian terms and regulations of Occupational Health & Safety in the work place. There's no reference, I put it to you, in clause 1.3, or indeed, anywhere within this agreement to the powers or rights of entry that are found within the Workplace Relations Act, do you accept that?---I'm drawing your attention to 3.3(ii) and while there's no right of entry because until recently it's never been necessary, right of entry has always been granted, I think that 3.3(ii) does say - provide assistance to develop appropriate solutions to these - - -

PN285

I'm sorry, Ms Doyle, I must be misreading. 3.32, did you say?---3.3 and then Roman (ii).

PN286

Roman (ii), sorry, yes?---So you can't provide assistance unless you've looked at the problem, investigated the problem, and been able to develop solutions.

PN287

I understand that. Did you understand my question, which is there's no reference in 1.3 or elsewhere within the agreement to the rights of entry under the Workplace Relations Act?---Well, I think the whole agreement implies a cooperative working relationship and unless you're able to view the scene, as it were, or the equipment, your advice would be useless.

PN288

I see. So is your answer to my question, you're right, there is no reference to the right of entry under the Workplace Relations Act?---I think it's under this OH&S agreement. I think it's implied.

PN289

I understand. And then the agreement - - - ?---- - - And - sorry.

PN290

In clause 3.3 deals with the roles of the unions, doesn't it?---Yes.

**** JOAN DOYLE XXN MR O'GRADY
PN291

And it sets out the way in which unions agree to cooperate with Australia Post to achieve the aims of the Australia Post Occupational Health & Safety policy and this agreement and to comply with the Act?---It does, but for example, even if you take the first one, participating in OH&S committees at all levels. Now, we have nominated membership to the OH&S committees and Mr Draper has refused our participation whereas previously meeting dates would be changed so that the organisers could attend those committee meetings.

PN292

I understand?---So all along the line Australia Post are refusing to comply with their obligations under health and safety.

PN293

Is it your evidence that Mr Draper's re-arrangement of these meetings or failure to hold these meetings, whatever might be the case, was a breach of this agreement?
---Yes.

PN294

And is it your evidence that that is a breach that could be - that if your construction of clause 5 of EBA6 is accepted, that is a breach that could be investigated pursuant to sectio 285B?---Well, it wouldn't need an investigation because of self-evidence, but - - -

PN295

All right. Putting to one side that, I'm not so sure of that evidence, Ms Doyle, but re-arranging a meeting may or may not be a breach, but is it your evidence that - - - ?---Well, it's just they are refusing to allow us to attend the committee meetings, so that's easy to prove.

PN296

I see, so it's your evidence that that's a breach of the EB?---It is and we're following a common sense approach by notifying it nationally, escalating it, you know, going through the whole system.

PN297

But you could, if you're right, and it is a breach of the EB, you could use the rights of entry under 285B to investigate?---Well, I think - I can't see how you could do a right of entry on such a breach and I would suggest to you that we're applying a common sense approach where people's lives and their health are seriously at risk. It's our obligation as a union to protect our members' safety and that's why they employ us and that's what - that's what the Act provides, when there's breaches of agreements, awards and advice agreements, we have the right to inspect, to visit and inspect.

**** JOAN DOYLE XXN MR O'GRADY
PN298

And Ms Doyle, what I'm putting to you is if you're right about that, then it would have been open for you or another permit holder within your organisation to assert a right of entry under 285B and for example demand a document from Mr Draper, I want to have a look at your calendar to see why you've cancelled this meeting. That would be open to you if your right and clause 3.3(i) is enforceable by virtue of clause 5 of EBA6 and is capable of being breached?---But why would we need to do that when we've got a letter back saying we're not going to have you at the meetings?

PN299

I see. Do you accept that if you're right about the status of the 1992 agreement, it would be open for you to be in breach of proceedings under section 178 of the Workplace Relations Act in respect of it?---Well, I'd have to seek legal advice on that.

PN300

No, I understand that, Ms Doyle, all right. Do you accept that whether it has been complied with or not, clause 3.3 of the 1992 agreement sets out a clear role for the unions in respect of pursuing the objective of Occupational Health & Safety?---It's there. We have other rights also.

PN301

And do you accept that clause 4 of the 1992 agreement puts in place the structural arrangements between Australia Post and the unions through which Occupational Health & Safety will be pursued?---It does, but again there are other rights under the OH&S Act and under our EBA.

PN302

Well, just let's deal with that, Ms Doyle. This agreement is to be read in conjunction with the OH&S Act, isn't it?---Yes.

PN303

That's what clause 1.3 says, that's right, isn't it?---Yes.

PN304

And this agreement sets out the procedures to be used in implementing the OH&S Act, that's what clause 1.1 says?---Yes.

PN305

And I put it to you that there is no suggestion in this agreement that the union is to have recourse to any other rights in respect of Occupational Health & Safety issues?---That's not true.

**** JOAN DOYLE XXN MR O'GRADY
PN306

Can you take me to any part of the agreement where it suggests that the union is to - and we'll confine it to the Workplace Relations Act - is to have recourse to its powers or rights under the Workplace Relations Act in pursuing Occupational Health & Safety issues?---I'd say that that's self evident in that other unions pursue health and safety matters with their members and I would say that this clause in the EBA was specifically designed to enable us to protect our members' health and safety.

PN307

What the clause in the EBA says - - - ?---Under the Workplace Relations Act. I'm sure the Workplace Relations Act is concerned about health and safety of workers. I'm sure the government cares about health and safety of workers.

PN308

Ms Doyle, what I put to you is that if you're right about clause 5 of EBA6, what it says is that the union will abide by the procedures set out in this agreement, that's what it says, isn't it?---Well, this agreement, if you read the whole agreement, the whole tenure of the agreement - - -

PN309

That was last night's exercise, Ms Doyle, I can promise you that much?---That we're to work in a cooperative manner to ensure people's health and safety and that's what the union is endeavouring to do. We spend a considerable amount of time and money and all our delegates spend time and money because health and safety is union business and when we don't get cooperation from management we have to access all the rights that we do to make sure people aren't seriously injured and, you know, or killed at work and there have been a number of occasions when that's been the case, and when I find all the shop stewards and health and safety reps coming to me saying that yes, again, these things are happening constantly, do something, I have to enforce our rights under what industrial instruments we do have.

PN310

Yes. Ms Doyle, the structures that the agreement puts in place, staff recruiting in work groups, do you accept that, that's 4.2?---Yes.

PN311

And there's a mechanism for resolving disputes over this matter of work groups, isn't there?---There is.

PN312

And if either party to this agreement is unhappy about that issue, it can refer to matters in the Commission for the Commission to resolve, can't it?---Yes.

PN313

Also part of the structure set up by this agreement are health and safety representatives?---That's right.

**** JOAN DOYLE XXN MR O'GRADY
PN314

And there are quite extensive provisions detailing the role and the training and the status of health and safety representatives?---Right.

PN315

Do you agree with that?---Mm.

PN316

And then another part of the structure, this is referred to in clause 4.4, is the creation of occupational health and safety committees?---Yes. I'm actually a member of the State OH&S Committee. It meets every three months and the last meeting was 20 minutes. I've asked for information at that meeting. The first time it didn't even get in the minutes. The second time when I managed to correct the minutes it wasn't provided. The third time - so, yes, and they are there, but obviously that's not going to protect someone's life or limb at DLC when there is serious business going on.

PN317

I put it to you, a regime of enforcement set out in the Occupational Health & Safety Commonwealth Employment Act, with designated inspectors?---Yes. There is and Comcare do come on occasions and they take a very long time, but there are also other instruments, namely our EBA which allows the union right of entry to investigate and establish if there has been a breach.

PN318

Would you accept that if clause 5 of EBA6 has the effect that you're asserting, it would be a significant change in the position with respect to right of entry at Australia Post?---No, I wouldn't because we've had the Blair Protocol for a number of years. I forget if it was 2000 or 2001 and it has been very clearly established procedure that has gone on up until today. I believe one of my organisers, Mr Dohrman, actually went down to the GPO box room to have a look at whether an injured work could meet the inherent requirements of the job or whether he'd been put into danger by working there. Gail Chulsnecki, who acts as our Compensation and Health & Safety person on a number of occasions, in fact, Sipi Maraka, who is our retail organiser, have, you know, gone to investigate various health and safety issues in work places.

**** JOAN DOYLE XXN MR O'GRADY
PN319

I might have misunderstood you, Ms Doyle, but I thought you agreed with me that - well, the outline filed by the union in this proceeding says that the preceding clause, the preceding clause to clause 5 is simply aspirational, evidently aspirational and I thought you agreed with me?---No, I didn't agree. I was saying that Australia Post - that was one line of argument that they said in conciliation in front of Senior Deputy President Kaufman. It was never tested. There were a whole lot of other lines of argument that were run at the same time including whether you could put section 285B and C on the same bit of paper. I mean, I didn't agree with that.

PN320

I'm sorry, Ms Doyle. You agree that that's in the union's outline. That's the current position of the union, through your representatives, is that the previous EBA provision had no finding of cause and effect, it was only aspirational?
---What we were saying is that we wanted to get a water tight clause in EBA6 and with that in mind I consulted our lawyers. The Campaign Committee of the National Union went into the clause. When Australia Post altered it slightly I went back to the lawyers and said does this still mean what I mean it to mean, and they said yes, it did, and that's why it's there.

PN321

So is it the case then that you always saw the wording of clause 5 of EBA6 as giving you a right of entry under 285?---Where Australia Post weren't abiding by legislation of the OH&S Act or our OH&S agreement, yes, we would have a means of being able to visit and investigate to establish the facts of the matter with a view of doing something about it. What's the good of having something you can't enforce?

PN322

I see. Well, that had been the effect put to you, according to the union's outline, of clause 3.1(vii)?---Sorry, I didn't understand that.

PN323

Well, according to the union's outline, you couldn't enforce 3.1(vii) of EBA5?
---That was never tested. WE came before SDP Kaufman in July from memory. The EBA, the deal was done in August, even though it wasn't signed, you know, in the Commission until November, but basically we discontinued it because with EBA5 it had very poor enforcement so we were going to have to get over a hurdle of jurisdiction, et cetera, et cetera, and given that we - you know, the clause had been agreed, it was a good clause, we didn't need to pursue. Why waste your money pursuing this other thing which we'd asked the Commission to help us with conciliation. You know, we didn't need to.

**** JOAN DOYLE XXN MR O'GRADY
PN324

Did you ask Ms Herrington to make it very clear to Australia Post that if they agreed to a clause along the lines of clause 5 of EBA6 that the union's position was that you would have a right of entry in respect of any suspected breach of that clause?---Why would I do that?

PN325

I'm just asking you whether you did or not. Well, to make sure that Australia Post knew what they were getting themselves in to?---Well, the negotiating business went on, as it does. It went from February till August with many, many meetings. Australia Post had the full complement of lawyers, a cast of thousand. The clauses were all debated, they were all out there in the open for people to see, and I would honestly have hoped that Australia Post thought it was a good clause and that they do have a responsibility to abide by legislation and this agreement. I can't understand why Australia Post is here today - - -

PN326

Ms Doyle, let's be frank. You knew that Australia Post had resisted a right of entry under the preceding clause, didn't you?---I knew that one small part of Australia Post, which is DLC, which traditionally I suppose were a bit critical of the management, but I would hope that the general administration of Australia Post would see that there were advantages in honouring the OH&S Act and our agreement and working cooperatively on health and safety problems for the benefit of our members and their staff.

PN327

So the answer to my question is yes, you did know that Australia Post had resisted right of entry under the preceding clause?---I'm saying that DLC had questioned it but that it had never been tested out because it was conciliation and I had felt also that there was some personal antagonism between Mr Draper and our organiser at the time who's since deceased, who's Randolph Diaz, because Randolph had been a mail officer, had got his training at Australia Post's expense and Mr Draper was personally offended that he'd crossed to the union's side to make sure his fellow mail officers were being looked after.

**** JOAN DOYLE XXN MR O'GRADY
PN328

What I'm putting to you, Ms Doyle, is that being aware of that position by - even if we just say a part of Australia Post, one thing you could have done to ensure that there were no misunderstanding or disputes of the nature we have in here today, down the track, is say to Ms Herrington, look, I want this, I think it's good for the union, I think it's good for Australia Post, but I want them to understand what they're agreeing to?---Well, I would say they are masters at sophistry clauses. They have lawyers that look at every clause. They craft every, you know, EBA. There were so many meetings and I would say it was self evident. The clause was there. I hoped they were committed to it because it leads to better health and safety.

PN329

If it was self evident, why didn't you insist that the clause make express reference to right of entry under 285B?---Because this had been going on under the Blair Protocol. This had been normal union practice that people - and they still
do - - -

PN330

Well, that was wrong. You've already told us that when you tried to assert a right of entry under 3.1(vii) you were told no, and in that proceeding you dragged out the Blair Protocol and you were told it's got no application?---We weren't told it had no application. It was never tested and in fact it was conciliation and in fact we thought that we had - we were going quite well, but because then when it went to arbitration EBA5 was virtually unenforceable and the jurisdiction's questions would cost me so much money to settle when I had a better clause already in the EBA agreed to and I might add, all the shop stewards were very happy when it was there. We put it out in our leaflets that we've got this nice clause, EBA5, so that, you know, if there were any rogue managers out there not doing the right thing, that then that would be there for people to be able to enforce members' health and safety and it was common knowledge that this was an improvement.

PN331

Is it correct to say that you do not indicate to Ms Herrington that, to tell Australia Post, or ask Ms Herrington to tell Australia Post, that this clause, if agreed to, would expand the right of entry?---Ms Herrington would have been - would have had the same aspirations as myself about that clause.

PN332

I see, all right?---In fact the whole campaign committee had discussed the clause and felt that it was a very good clause.

PN333

And they felt that it was a clause that would give an unequivocal right of entry?
---No. The right of entry is limited by the OH&S Act which is no easy - it's no easy - - -

**** JOAN DOYLE XXN MR O'GRADY
PN334

Well, that's not your evidence.

PN335

THE COMMISSIONER: Can you just let Ms Doyle answer the question, please.

PN336

MR O'GRADY: I apologise?---It's no - you know, walk in the park. Similarly the OH&S agreement is no walk in the park, as I've discussed with you when it takes you 12 months to negotiate designated work groups and it takes you 12 months to get HSR training. You know, nothing's a walk in the park.

PN337

I misunderstood you, Ms Doyle. I thought you indicated earlier that a breach of either the regulations or the code of practice would also give rise to a right of entry?---Yes, provided they are legislated within Victoria, provided they are specific enough to be able to, you know, claim a breach. It's no easy knock on the door and they're in.

PN338

I see. All right. Now, could I ask you turn back to Mr Bass' statement. I have taken you to paragraph 10 and we touched on the matters in paragraph 11. I haven't gone through all of the matters in paragraph 11. I've got up to Occupational Health & Safety Committee, which is subparagraph (c). Could you have a look at what's in paragraph 11 and just confirm for the Commission that you accept that those structures are created by the 1992 agreement?

PN339

THE COMMISSIONER: Well, it might be useful if Ms Doyle has an opportunity to look over paragraph 11, it's substantial, over lunch.

PN340

MR O'GRADY: As the Commission pleases.

PN341

THE COMMISSIONER: Yes. How much longer do you think you'll be, Mr O'Grady?

PN342

MR O'GRADY: I would have thought another hour or thereabouts, Commissioner.

PN343

THE COMMISSIONER: I see. You can step down, Ms Doyle, and don't discuss your evidence at lunch time, but you will need to go over that point 11 of Mr Bass' statement.

PN344

MR O'GRADY: Commissioner, if I could ask, I do intend to take Ms Doyle to the other parts of Mr Bass' statement, if she can comment on as a matter of fairness and perhaps if Ms Doyle could also have a look at the - refresh her memory about those other parts over lunch, it might make things quicker after lunch.

**** JOAN DOYLE XXN MR O'GRADY
PN345

THE COMMISSIONER: That's a bit cheeky, Mr O'Grady, setting Ms Doyle homework over lunch time.

PN346

MR O'GRADY: I didn't intend to be cheeky.

PN347

THE COMMISSIONER: I'm sure Ms Doyle will take your hint in relation to that and I take it that you have a full copy of Mr Bass' statement and the attachments? Good. We'll rise and adjourn until 2.15.

<LUNCHEON ADJOURNMENT [12.46PM]
<RESUMED [2.18PM]

PN348

THE COMMISSIONER: Ms Doyle, did you do your homework?---I did.

PN349

MR O'GRADY: Hopefully things will be quicker, Ms Doyle. Can I ask you to go to paragraph 11 of Mr Bass' statement?---Yes.

PN350

And I think I've taken you to the matters identified in paragraphs 11(a) to (c). Do you agree with what Mr Bass says in those paragraphs?---That that's what the OH&S agreement provides for, yes.

PN351

And do you agree with what he says in the remaining sub-paragraphs of paragraph 11 through (c) all the way through to (g), that's what the 1992 agreement provides?---Yes, yes.

PN352

Yes, thank you. Now, with respect to paragraph 12 of Mr Bass' statement do you accept that what he says about the development of the safe operating procedures for the bar code orders?---I think he's misconstrued the problem there. We did have a problem. There are two types of bar code sorters. One of them, the F99 - sorry, the 599s and the country ones, and then there's another one which is smaller, and basically the union's claim has been, on the smaller ones, that they should have four operators when they are in full flight. It's always been agreed with management that the other ones have four operators when they are in flight, full flight. So what Mr Bass has harked back to is the dispute about he smaller ones and what that involved was, first of all, the union had a petition from everyone who worked at Australia Post saying that they thought they were under-staffed, it was a health and safety issue. Comcare were brought in by a PIN from a HSR and Comcare did a study and said yes, Australia Post had understated the risk and that there needed to be - given the climbing injury rate - there needed to be an investigation and what happened was Australia Post got Carmel Bartolish out who did a study, a new safe operating procedures and everything, but that's a whole different issue from this issue that we were presenting with this in that what had happened were, on the larger machines, the agreed staffing rate wasn't being met and in fact there were incidences going back to December which are in Mr Bass' paperwork where the senior shop steward had repeatedly pointed out specific breaches and yet here again there were a couple of more breaches.

**** JOAN DOYLE XXN MR O'GRADY
PN353

Can I just examine some of the things that you've just told us about. As I understand your evidence you say there was an issue with respect to the staffing on the bar code sorters?---Yes. There's two issues, two different bar code sorters, two different issues.

PN354

In respect of which bar code sorter were Comcare involved?---The smaller one.

PN355

And there was an issue there and in order to address that issue, under the provisions of the Occ Health & Safety Commonwealth Employment Act and one assumes under the 1992 Agreement, a HSR got involved in an issue of the PIN?
---That's right.

PN356

And a PIN is a Provisional Improvement Notice?---That's right. Because it was about safe operating procedures, it was in question. It wasn't a simple breach where there'd been an agreement. All the provisions were agreed upon but management were allowing repeated breaches.

PN357

You see, I put it to you that you can only issue a Provisional Improvement Notice as a HSR if you are of the view that the Act is being breached, that the employer is not discharging their obligation to have a work place that is as safe as is practicable?---Yes.

PN358

Yes, and the effect of a Provisional Improvement Notice is that unless it is appealed, the employer must comply with that notice or get somebody out from Comcare to look at the notice and then decide either to make a proper improvement notice or to discharge that notice?---Yes.

PN359

And what happened in this case is the Inspector, the Comcare Inspector, under the Occupational Health & Safety Commonwealth Employment Act came out and had a look at the issue, didn't they?---Yes.

PN360

And they told Australia Post, as I understand it from your evidence, that you need to do some work on this issue?---Yes.

PN361

And as a result Australia Post did some work on this issue and a review was undertaken of the staffing level on the smaller machine?---Right.

PN362

Is that what you say?---Yes.

**** JOAN DOYLE XXN MR O'GRADY
PN363

Now, do you accept that in those circumstances it would be inappropriate to assert a right of entry under 285B of the Workplace Relations Act?---It would depend on the circumstances.

PN364

Do you accept that there is nothing in clause 5 of EBA6 that differentiates between those circumstances, ie the background to Comcare coming out regarding the smaller machines and the issue that you'd say arose in February of 2005 with respect to the staffing levels on the larger machine?---Again - - -

PN365

There's nothing in clause 5?---Sorry, I got lost in the middle of the sentence.

PN366

I apologise, it was a long sentence and I'll try and break it up. Coming back to what clause 5 of EBA6 provides, do you accept that it doesn't distinguish between a scenario like the one that arose with respect to the smaller machine where a PIN has been issued and HSR comes out - sorry, a PIN has been issued and a Comcare Inspector comes out and things are progressed through those mechanisms, and the sort of scenario you've explained to us occurred in respect of the larger machine?
---I think there's a difference in that even with this letter Mr Bass is misconstruing what is happening to cover up what is happening as a regular policy where management are breaching agreements, the manual handling codes of practice, et cetera, and then trying to say either it hasn't happened or you can't prove it or we'll fix it, but never ever fixing it and then it's a bit like a wages inspection. Unless we've got proof that people are underpaid, you can't prove what's happening and that's why you have a right of entry, you know, right to visit and inspect.

PN367

You see, I put it to you, Ms Doyle, that if your description of what occurred in February 2005 was accurate, namely that there was a consistent pattern of under-staffing of the larger bar code sorter, then it would have been open for a HSR to issue a PIN in respect of that activity?---Yes, and the HSRs asked us for support. The HSR who had issued the first PIN over the smaller bar code sorter was threatened with, because his compensation case had finished up, that he was now non work related, that he would no longer be given work in the taxing room and eventually he was packaged out of Australia Post. I believe the Commission is familiar with a HSR who raised the issue with the manual sorting rate being too high, that he was then told he couldn't do inspections unless he found an A6 to authorise him to do inspections. The thing is that with these instances, except for one, if I could refer you to the original dispute notice put in by the shop steward - - -

**** JOAN DOYLE XXN MR O'GRADY
PN368

What I would prefer you to do, Ms Doyle, is I suppose come back to my question, which is, it would have been open - - - ?---If the HSR had have been there on the spot, but often in a work place of this size, that's bigger than the MCG at which there are so few HSRs and the HSRs are usually at work at their own job, that quite often they can't prove what has happened and that they are relying on the unions' organisers to assist them in their position, to support them and to assist.

PN369

But a HSR doesn't have to be present when a particular incident occurs to issue a PIN, do they?---Well, I'm sorry. HSRs should have been present. The accident with the fork lift, what is the procedure in that case is that the accident is supposed to be cordoned off until there can be an official investigation done with the HSR and Comcare are supposed to be notified and that didn't happen.

PN370

I'm asking you about the bar code sorter, Ms Doyle, and I understood you to be suggesting that the HSR couldn't issue a Provisional Improvement Notice because they may not have been present and I'm putting to you that that's nonsense?
---They can but they need proof that it's happened and - - -

PN371

Well, they issue the Provisional - - - ?---This is exactly why Commissioner Blair's Protocol was developed because what was happening is that when management were trying to breach health and safety requirements, the staff would be arcing up, as you would, naturally, and this protocol developed so that the union could come in and establish what had happened and discuss it with management and do something about resolving the problem.

PN372

Did you turn your mind, Ms Doyle, to having, when you were looking at this issue of the provision that's concerning health and safety to seeking to insert the Blair Protocol into EBA6?---No, because I recently had my permit revoked because I hadn't followed the Blair Protocol, so I assumed that Australia Post were committed to the Blair Protocol and it had full force.

PN373

So you did turn your mind to it but decided not to pursue it because of your experience with your permit, or you didn't turn your mind to it?---No. I think basically it's there. It's been a given in our industry for some years, so why would - I never thought of putting it in the EBA. Are you suggesting that that might be good for EBA7?

**** JOAN DOYLE XXN MR O'GRADY
PN374

What I'm putting to you, Ms Doyle, is that that would clearly and unequivocally state that in respect of health and safety issues, there was a right of entry associated?---It wasn't necessary because both parties agreed to the Blair Protocol. I haven't revoked it repudiated it and you obviously - you're - well, once it was pointed out to me, I have complied with it and, you know, Australia Post obviously gave it full force in that instance.

PN375

Other than the issue you've raised about the confusion in paragraph 12, you accept that what Mr Bass described in paragraph 12 as accurate?---Yes. I suppose I'd like to highlight that these change of safe operating procedures were only given to us once we sought right of entry and hadn't been provided as they should have been as a matter of course.

PN376

In respect of paragraph 13, do you dispute the fact that Mr Bass undertook an investigation into the issues that Mr Gorman and Mr Dohrman had raised?---No. But again I'd point out that this didn't happen on 16 February or when the incidents happened. They only - the investigation only happened after we tried to effect the right of entry.

PN377

In respect of paragraph 14, do you dispute that, as part of that investigation, Mr Bass spoke to Mr Wong about the insert?---Yes, but I would point out that Mr Wong is not an elected HSR.

PN378

I understand, all right. Do you accept that Mr Doyle also spoke to those working in the relevant area and reported back?---I've been told that, yes.

PN379

You will see in paragraph 15, Mr Bass says he informed you of the outcome of the investigation, you accept that he did that through the letter dated 2 March?
---Yes.

PN380

And he then got a response from you which is set out or described in paragraph 16 of Mr Bass' statement, is that the case?---Yes.

PN381

In that response you assert, as you've asserted here, that the Blair Protocol somehow provides a right of access?---Yes.

PN382

Is that your understanding?---Yes, and has always in the past.

PN383

And do you say that that's a right of access that exists independently of anything that's in the EBA?---I think it's been there in the past. Obviously the EBA supports it, enforces it.

**** JOAN DOYLE XXN MR O'GRADY
PN384

I see. You see, I put it to you that the Blair Protocol is quite an ancient document, do you accept that?---I think it's 2001.

PN385

The current EBA wasn't in force - I think it's 2000, actually - but the current EBA wasn't in force at that time that the Blair Protocol was developed, was it?---No. EBA5 was.

PN386

And do you maintain that the Blair Protocol provided a right of access under EBA5?---Yes, we do.

PN387

Now, in paragraph 18 Mr Bass makes the point that the '95 agreement that was referred to in your correspondence was never promulgated by Australia Post and does not apply. Do you accept that?---I do. The Commission has come across this point before. I'm sure, Commissioner Foggo appreciates that we were relying on 1995 because that was the agreement we had from the National office, but then when we all went back and found out that it had never been signed off and we'd thought it had because all the OH&S committees had environments in their name which was the only substantive difference between the two agreements, but I've provided the Commission previously with the '92 agreement and shown that the words and the intents regarding the paragraphs I've relied upon are exactly the same. So it's just - you know, that's unfortunate that it's not material.

PN388

I don't seek to make a big thing of it, Ms Doyle. I just needed to understand whether you accepted it, or don't accept it?---Yes, okay then. 1992 is the official version.

PN389

I understand, and that's the agreement that I took you to this morning?---Yes.

PN390

Then in paragraph 19 you refer to - or Mr Bass refers to correspondence from you and that you claim that the union had a witness to the double stacking incident?
---Yes.

PN391

Now, was that Mr Murphy?---Yes.

PN392

And he's the individual who subsequently wrote a stat dec?---That's right.

PN393

Or made a statutory declaration in respect of that?---Yes.

PN394

And what he witnessed is set out in that statutory declaration?---Yes.

**** JOAN DOYLE XXN MR O'GRADY
PN395

In that statutory declaration Mr Murphy does not say that he saw two ULDs stacked at the one time, does he?---No. He said he saw it falling from a height. He's told me personally that he's sure it was two ULDs but because he hasn't got a witness, that he thought it was better to word his statement as he did.

PN396

I see. Well, this is the statement that - a statutory declaration that he generated at your request, is that the case?---We put out words to the shop stewards to say we were looking for witnesses to the event and Mr Murphy was the only person brave enough to come forward.

PN397

He's the only person who came forward, isn't he?---Well, no, he's not the only person who came forward but he's the only person who would go public.

PN398

I see. His version is set out, exhibit PB13, to Mr Bass' statement, that's his stat dec?---Yes.

PN399

At no stage in that statutory declaration does he speak of a double stacking of a ULD, does he?---He says "caused by a ULD falling from a height, from a device." Now, I would like to say that a ULD, which is a metal cage containing 300 kilograms of mail falling off a fork lift in the middle of a pedestrian area is a serious incident.

PN400

I'm not saying it's not a serious incident, Ms Doyle. What I'm asking you is whether he at any stage in his stat dec talks about double stacking of ULDs and I put to you he doesn't, does he?---No.

PN401

Yet he is the witness that you referred to in your correspondence to Mr Bass dated 9 March?---That's right, and that's what he told me.

PN402

Yes?---He told me he recalled it being back parked, one ULD let off, and therefore there were two ULDs on the fork lift.

PN403

Now, Mr Bass then spoke to Mr Murphy, didn't he, you're aware of that?---Yes. Well, yes.

PN404

And - - - ?---I wasn't present. I would have been with the Blair Protocol in force.

PN405

He spoke to Mr Murphy and Mr Murphy told him that he did not have a direct line of sight to the incident at any stage. Do you accept that?---I don't know about at any stage.

**** JOAN DOYLE XXN MR O'GRADY
PN406

Well, that's what Mr Bass says in paragraph 25 of his statement?---Right.

PN407

Upon you and Mr Murphy - Mr Murphy advised that he did not have any direct line of sight of the incident at any stage and could not state with any certainty the number of ULDs that were involved in the incident?---I suggest that would be a paraphrasing.

PN408

Whether it be a paraphrasing or not, the effect of it is that Mr Murphy didn't have a direct line of sight to the incident, isn't it?---Well, I think if we had have been allowed to investigate the incident we may be more clear on it, but what we are clear on is that here you've got a manager, quite a senior person in the facility driving a front loaded fork lift in a pedestrian area against what people had been told about proper procedure and that furthermore when there was an accident, instead of proper procedure being followed which is, it's cordoned off, there's an investigation involving a HSR, that what had happened is Greg Wong, who is an employee of Australia Post, had been brought out to fill in the P400, quite abnormally, and then when people had been trying to get the issue addressed, that it had been covered up and told it hadn't happened.

PN409

But Ms Doyle, my question comes back to Mr Murphy not having a direct line of sight of the incident at any stage. Now, do you dispute that that's what Mr Murphy told Mr Bass?---He did tell me - I don't know what he told Mr Bass, but he told me that he's quite clear - - -

PN410

Well, my question went to whether you disputed what he told Mr Bass and you've told me you don't know?---Well, yes, I've got of way of knowing.

PN411

You have had Mr Bass' statement since July of this year?---We get told all sorts of things about - by management at DLC. I referred you to the four stacked ULD blowing over in the wind. We get told all sorts of things. I don't necessarily believe what I'm told by a shop steward, a member, a manager. I endeavour to test it out by getting two or three versions of the story or trying to find some evidence of what's happening and that that's why when we suspect a serious breach like this, and the Blair Protocol says that we've got a right to talk to people who are involved and investigate, that's why we want to maintain this right.

**** JOAN DOYLE XXN MR O'GRADY
PN412

Yes. Ms Doyle, do you accept what I put to you, that you've had Mr Bass' statement since 12 July?---Mr Bass would send me a lot of letters and I don't necessarily respond to them all because I don't have enough fingers on my hands and I don't have a staff that Mr Bass has.

PN413

I didn't ask you about that, Ms Doyle?---Well - - -

PN414

I'll try for the third time?---All right.

PN415

Do you accept that you've had Mr Bass' statement since 12 July?---Yes.

PN416

And so it's fair to say that from 12 July or thereabouts you've known that he maintains that he's spoken to Mr Murphy and Mr Murphy says that he did not have any direct line of sight of the incident and couldn't state with any certainty the number of ULDs involved?---Well, I prefer to believe Mr Murphy who told me he's quite sure that the incident happened, but because he doesn't have a witness, he'd prefer to phrase it this way and because it still outlines what's incontrovertible that a ULD fell down from a height and there were, you know, up to, you know, 280 kilos of mail falling, including the ULD, you know, that can damage people.

PN417

You could have, if you had have desired, asked Mr Murphy to come along and give evidence in respect of - - - ?---We cold and I could have Mr Gorman, Mr Dohrman, I could have Norm Alchin, I could have a cast of thousands, but I don't think the relevant points are the minutiae of this particular breach. It is a repeated and serious breach - - -

PN418

What breach? The double stacking of ULDs? That's the breach that you're talking about, Ms Doyle?---We're talking about fork lifts in pedestrian areas. We're talking about the way the investigation was done. We're talking about a manager not complying with policy.

PN419

The allegation here, as you've agreed with me, as set out in paragraph 5 of Mr Bass' statement was there was a double stacked ULD?---And I still firmly believe there was a double stacked ULD and I firmly believe Mr Murphy believes there was a double stacked ULD.

PN420

Mr Murphy told Mr Bass he couldn't see whether it was double stacked or not?
---Well, why would he do a stat dec?

**** JOAN DOYLE XXN MR O'GRADY
PN421

Why didn't he say it in the stat dec, Ms Doyle?---Because he couldn't find another witness to put up his hands and he wanted to be able to be 100 per cent that what he said would be believed.

PN422

Now, it's the case, isn't it, that Mr Bass wrote to you about the results of his investigation as described in paragraph 21 of your statement?---Yes, he did write.

PN423

And it's the case, isn't it, that - and he invited you to provide any further information, including any eye witness statements, that could then be investigated so that action could be ascertained, actions where required, I think is - - - ?---Yes, we provided that stat dec. We provided names and furthermore, if you go back to our shop stewards' dispute notice back in December, we've provided names, times, what happened, et cetera, and they all get brushed under the carpet.

PN424

Did you respond to Mr Bass' invitation that's referred to in paragraph 21 - - -

PN425

THE COMMISSIONER: What date is the letter?

PN426

MR O'GRADY: Sorry, 10 March. It's at the bottom of paragraph 21, Commissioner. 10 March, PB11?---I think the day before I notified to the Commission about this issue. So we had obviously - this had been the first time Mr Bass was interested in talking about bar code sorters, safe operating procedures, ride on forks for a very long time. So we obviously did talk about them with him, but by this stage I'd already notified this dispute.

PN427

But you don't seek, Ms Doyle, to ventilate the issue of double stacking of ULDs in this proceeding, Ms Doyle?---How many times can you do it? Look, how many times can you - you need a system so that we can protect the safety at work of our members and what we're saying is that over a long period of time that the HSRs and the shop stewards had attempted to enforce what the proper thing was and then they came to seek the assistance of the union office and we sought, believing in our rights under the EBA and the Blair Protocol, to go and investigate this serious and sustained breach so that we actually had some proof to be able to bring management to the table to work out some solutions to these problems.

PN428

And I put it to you that it would have been open to the HSRs to issue a PIN in respect of any suspected breach, involve Comcare, and Comcare would have come out and investigated it?---Well, I'm sorry, Mr O'Grady. The HSRs tried. It was covered up.

**** JOAN DOYLE XXN MR O'GRADY
PN429

Sorry, let's just be specific?---Okay.

PN430

Are you saying, is your evidence on oath, that in respect of the incident that's referred to by Mr Gorman and Mr Dohrman, the HSRs tried to issue a Provisional Improvement Notice?---No, I haven't said that at all. They were trying to prove - - -

PN431

Well, that's the proposition I'm putting to you?---They were trying to prove from February - to establish whether the incident that word had got around something had happened - they were trying to prove what exactly had happened and the P400 had been filled out without their involvement. The proper procedure of cordoning off the incident with the ride on fork hadn't happened, and so they were trying to establish what had happened and before you can do that, you know, you haven't got to first base, and it's similar with the bar code sorter. People will report it and the managers will say, that person likes to run it by themselves. Now, a person can't run a whole bar code sorter without running around it in contravention of safe operating procedures, or they'll say it's never happened, or it was only while they were getting other people and all of that's not true. So they rely upon us to be able to find out, to investigate it properly and we have to remember that people who work for Australia Post do not have the time to go round doing this and they rely - they pay the union to go and do visits and inspections and find proof and enforce their rights.

PN432

You see, I'm a bit confused, Ms Doyle, because as I understood your evidence this morning, you seem to be saying that it wasn't the function of clause 5 of EBA6 as you understood it, to investigate rumours. It was only to be used by the union in cases of clear breach. Yet now you seem to be saying that where there's a rumour, to get the HSR to first base, which was your language a moment ago, the union would be using clause 5 of EBA6. Which is it ?---I think you're putting words in to my mouth.

**** JOAN DOYLE XXN MR O'GRADY
PN433

Well, the transcript will show what you said, Ms Doyle, but which is it?---What I was saying is that where there is a suspect breach, they are the words of, you know, the Workplace Relations Act, the Blair Protocol, that we have a right to investigate and find out what did happen. Now, it was more than a rumour. It was the senior shop steward had talked to people, had found out that something had happened, that a P400, which I've - to this day I've yet to get a copy of that P400, and ditto with the HSR, that there was definitely something was going on but because it was a manager who's - a favoured manager, there was a cover up. That's what the shop steward told me. He said that there was no HSR present and that he wanted me to do something about it.

PN434

You see, I put it to you, Ms Doyle, that a failure to follow protocols like the P400 is the sort of thing that a HSR could issue a Provisional Improvement Notice in respect of?---But initially when it first happened, it was written up as a gate fell off the ULD. Now, you know, it's the same as people saying to you we haven't underpaid that person. You need some proof to be able to go and get people's entitlements.

PN435

You set out in your statement the correspondence you had with Mr Bass and you also set out a letter responding, of yours of 9 March and I think we've covered the details of that, and the last letter you attach is a letter from Ms Herrington?
---Right.

PN436

Do you see that?---Yes.

PN437

And that was in response to a letter you'd sent to her, wasn't it?---Yes.

PN438

And I put it to you that the letter you sent to her didn't ask her in a neutral way what had happened, but rather asked her in a leading way to provide a certain type of response. Do you accept that as a proposition?---I don't accept it was leading. It was patently untrue what was said about EBA6 and given that Sharelle was in charge of the union as the Acting Divisional Secretary I was asking her to confirm my understanding of what had happened, which she did.

PN439

So you told her in effect, this is my understanding, can you confirm that I'm right?---Yes.

**** JOAN DOYLE XXN MR O'GRADY
PN440

As opposed to asking her, well, can you tell us what happened because I don't know whether what Mr Bass is telling me is right or wrong?---I was part of the negotiating team. I went to every official meeting of the EBA negotiations. There were a couple of smaller meetings which weren't authorised to deal, but were on about fleshing up - out, you know, certain particular aspects of, you know, franchising or very - you know, minute sort of phrasing or whatever, but which came back to the negotiating meetings. So I was quite sure that this interpretation of clause 5 was not correct and therefore I needed her from - you know, I needed anyone from that negotiating team to confirm my understanding. It's like having a witness.

PN441

Could you turn to exhibit PR5, Mr Rogan's statement. That's the last of the exhibits, do you have that?---No, this is Sharelle Herrington's letter.

PN442

I'm sorry, it's the second last of the exhibits, I apologise?---Yes.

PN443

That's your letter to Ms Herrington?---That's right.

PN444

And in the middle paragraph you ask her to confirm in writing that this statement is not correct?---Yes, and are you suggesting that's wrongly phrased?

PN445

No, I just want to make - and is it fair to say that in reading Ms Herrington's letter of 10 March, she should have regard to what she was asked to do from your letter of 9 March?---Well, I'm sure that Ms Herrington would tell, you know, just support me for the sake of it. In fact, we're probably factional enemies, so, you know.

PN446

Indeed, do you accept, Ms Doyle, without getting into the politics of it, that even though you've asked her to confirm in writing that the statement in the letter that you attached is not correct. She doesn't do that?---I think she backs up what I'm saying, is that the union didn't make any commitment about the use of that clause. Well - - -

PN447

Well, that's not what she says?---Well - - -

PN448

That's not what she says here?---She says, "I do not recall the union making any" - - -

**** JOAN DOYLE XXN MR O'GRADY
PN449

Yes. She says, "I don't recall." She says, "I don't know. I can't recall the union making any commitment"?---Well, I certainly spoke to her on the phone and she said that it was a nonsense and I understand we're calling Ms Herrington as a witness.

PN450

I see, yes, yes. But do you accept that in response to you're saying, look, please confirm that what's being said in this letter from Mr Bass is wrong, Ms Herrington says, look, I can't recall the union making a commitment along those lines?---I don't think that weakens it at all. What she's saying is that she can't recall any commitment being made and I'm sure, if there was a commitment, she'd be able to remember it because it was a clause that was thought to be a very good clause by all the State Secretaries, by the Federal Divisional Office of the union and we were very pleased that it had got in there and we understood that the wording of it would apply.

PN451

Now, with respect to exhibit PR2 of Mr Rogan's statement, do you accept that that's the log of claims in respect of EBA6?---No, I do not accept that that's the log of claims. This was an initial letter. The EBA had expired, I think it was February 20, and we were endeavouring to get Australia Post to talk to us. Usually they are supposed to talk to us three months before the agreement expires, but they waited till after it expired to talk to us. Our official bargaining notice included absolutely everything in it and that went in at a very early date because we were needing to protect some sick leave arrangements that were in place. So the log of claims was in the bargaining notice and it was a very long and involved one. This was something that had come out of a conference that had taken place several months before.

PN452

Well, I'd like to come to the MJ notice in a second, Ms Doyle. I'm not trying to play silly games.

PN453

THE COMMISSIONER: I beg your pardon, I didn't hear what you said?

PN454

MR O'GRADY: Sorry. I'll come to the MJ notice, which I think Ms Doyle is referring to now, in a second. But I just want to deal with this document while we're here. Do you accept that this document was sent by the CEPU to Australia Post?---Yes.

**** JOAN DOYLE XXN MR O'GRADY
PN455

And do you accept that the letter that accompanies it, namely the letter of 11 December 2003 describes it as the details of the union claim for "the CEPU securing our future, the campaign for Australia Post EBA seeks"- - - ?---Yes, but it doesn't include a whole range of things that were in our log of claims on which were part of the negotiations.

PN456

Do you accept, Ms Doyle, that it describes the enclosed claim as having been formulated by the CEPU after consultation with all branches and members working in Australia Post?---Yes, but it wasn't definitive and it wasn't final.

PN457

And do you accept that it had been endorsed by the CEPU Divisional Conference?---Yes, which had taken place several months prior.

PN458

In respect of that claim, do you agree that there is no mention whatsoever to Occupational Health & Safety?---That's right, but there's no mention of tea breaks, there's no mention of a whole range of things that were subsequently in the EBA.

PN459

And do you accept also that there is no mention of right of entry?---No.

PN460

You don't accept that, or you agree with that as a proposition?---Well, it's not in there and I don't see why it would be in there.

PN461

As you've suggested, there was subsequently an initiation of bargaining period, that's right?---Yes.

PN462

And that gave rise to the issuing of a section 170MI notice?---Yes.

PN463

And this is attached as SH1 to Ms Herrington's statement?---I don't believe I've got that.

PN464

I will see if I can provide it to you, Ms Doyle. That's the statement that we've been told has been prepared by Ms Herrington. Are you aware of that?---Not specifically, no.

PN465

Could I ask you to turn to exhibit SH1, that's the notice of initiation of bargaining period in respect of EBA6?---Yes.

PN466

And the particulars of the matters claimed are set out in attachment A, do you see that?---Yes.

**** JOAN DOYLE XXN MR O'GRADY
PN467

And is that what you would describe as the log of claims?---Yes.

PN468

And you say that that replaced or somehow superseded the log of claims that I took you to a moment ago?---Well, that was the formal bargaining notice.

PN469

So do you say that that somehow replaced or superseded the log of claims I took you to a moment ago?---Well, I think added to them.

PN470

Added to them, I see?---Yes.

PN471

All right, and that deals with Occupational Health & Safety in clause (vii)?---Yes.

PN472

There is no reference in that clause to right of entry, is there?---I don't think it would necessarily arise. People were clear on the Blair Protocol being in place. People are clear that the Workplace Relations Act gives you the right when there are suspected breaches. You know, it's - Australia Post has allowed the union, you know, to - it just makes common sense that if you want the union's cooperation and support in trying to have a healthy and safe workplace, then we need to be able to see and investigate and make suggestions. You know, this shouldn't be controversial.

PN473

Do you accept, Ms Doyle, that there is nothing in this attachment which puts Australia Post on notice that the CEPU wants to change the way in which right of entry in respect of Occupational Health & Safety issues has been dealt with?
---We're not changing the way right of entry has been dealt with. Australia Post, and I would hope again that it's only part of Australia Post, has and obviously when you're talking about safe and healthy work places, systems of work which are safe and without risk to health, injury management programs, if people can't go in and investigate and inspect, how can we be involved?

PN474

So is the answer to my question yes, Ms Doyle, that there is nothing in here that indicates that the CEPU wants to change the way in which right of entry in respect of OH&S has been dealt with?---I think what's in here assumes that we will maintain our right of entry because otherwise it would be meaningless, the union involvement.

PN475

The right of entry such as it was that you had at the time that this attachment was formulated, is that contained in clause 3.1(vii) of EBA5?---I believe it was and in prior agreements and the problem with EBA5 was the whole lot of it was fairly unenforceable and that - but it's quite clear that the Blair Protocol has been operational since 2001.

**** JOAN DOYLE XXN MR O'GRADY
PN476

I have no further questions, Commissioner.

PN477

THE COMMISSIONER: Yes, thank you. Mr Farouque?

PN478

MR FAROUQUE: Yes, thank you, Commissioner, just a short question

<RE-EXAMINATION BY MR FAROUQUE [3.08PM]

PN479

MR FAROUQUE: Ms Doyle, you were asked some questions about the Blair Protocol and the Blair Protocol is conveniently attached to the
statement - - -?---I've got it.

PN480

You've got the Blair Protocol there in front of you? Yes, it's attached to - - - ?
---PB12.

PN481

It's also part of PB1, and PB12.

PN482

THE COMMISSIONER: Are you going to share your secret with me?

PN483

MR FAROUQUE: Yes. PB12, Commissioner. Do you have that in front of you, Commissioner?

PN484

THE COMMISSIONER: Yes, thank you.

PN485

MR FAROUQUE: You were asked some questions about the Blair Protocol. You are the Branch Secretary of the PNT Branch, yes?---That's correct.

PN486

Is it your evidence that officials of the PNT Branch, in exercising right of entry, continue to abide by the Blair Protocol?---Yes.

PN487

And in future in respect of the exercise of - - -

PN488

MR O'GRADY: I do object on the basis of relevance, Commissioner. It's a leading question.

PN489

MR FAROUQUE: Can you say what the position of the branch in respect of future exercise of right of entry is in respect to the Blair Protocol?---Well, I've been told very firmly by the Registrar that I'm to comply with the protocols under the Blair Protocol. It imposes more than what the Workplace Relations Act requires of the union in, for example, that if we notify for a breach, we actually have to specify the particulars of that breach which we do. We do that all the time and I'm very careful that myself and the other officials do abide by this protocol. Obviously it was open to us, being a new administration in the union, to repudiate it. We haven't, and therefore we - yes, we're honouring it.

**** JOAN DOYLE RXN MR FAROUQUE
PN490

Yes, and what about in the future?---We intend complying with it.

PN491

Yes. No further questions, Commissioner.

PN492

THE COMMISSIONER: Ms Doyle, could I just ask you a couple of questions in relation to the protocols which were developed and agreed in 2001. If there was a dispute about any matter between Australia Post and the union, is it your understanding that these protocols would be put in place and be - the manner in which the steps that they outline would be the manner in which you would deal with Australia Post?---That's right, Commissioner. For example, if we believe there wasn't a fair share of overtime or whatever, we would write to the particular work place saying we're notifying to do a time and wages inspection under this clause and this is what we're concerned about, this is what we're looking at.

PN493

In those cases where there was a disagreement between Post and the union, then the dispute resolution procedures of EBA6 would come into place and the dispute would follow a set path culminating in coming to the Commission?---That's right and that's why we were so concerned that there was just a blanket refusal of entry without them coming back and saying, well, we don't think you're notified correctly or you've got the wrong clause or, I don't know what else they could say, you know. We're not - we're in dispute over whether you've got a right to enter and then it would escalate if necessary.

PN494

Just remind me again, when this matter came before me earlier in the year, it was specifically over what had happened with the ULDs and Mr Murphy was in the Commission on at least one occasion. The arbitration of that particular dispute regarding the ULDs has faded substantially into the background and this has taken on a much - - - ?---A dual - - -

PN495

A much larger picture - or, I beg your pardon, did you say a dual - this is an arbitration on dual matters? Firstly, the specific incident concerning the ULDs and the - - - ?---The ULDs and the bar code sorter and then there is the right of entry and our right to visit and inspect.

PN496

Pursuant to clause 5?---Yes.

PN497

Not pursuant to the Blair Protocol?---Well, the Blair Protocol is part of it too because it sort of backs it up, if you know what I mean. We've got the right to go under the breach of the EBA clause and because it relates to a health and safety issue, then it says that we can talk to the individuals, we can question the individuals and we're allowed to have access to the work area concerned.

**** JOAN DOYLE RXN MR FAROUQUE
PN498

Whereabouts is that?---That's 1.4 and 1.5 and it says that the employees directly involved can talk privately to us because without, you know, being dramatic, people, whether founded or not, fear that they may be disadvantages in their employment if they, you now, go against management and, you know, like, there's brave people and there's scaredy-cats and, you know, you should be able - both should be able to be safe and speak freely and then we, of course, would discuss the issue with the manager and the person in charge following our investigation. You know, I find it strange that there's this big hoo-ha, because what are we going to do? We establish that something's gone wrong and then all we would do is seek to solve the problem and not - you know, I mean, this is our way of averting what used to happen before Commissioner Blair instituted this protocol and that was that people would go and sit in the canteen or walk off the floor or do something else equally illegal.

PN499

In your view, and again it can only be your view, and I suppose it does ask you to form an opinion, if the Blair Protocols had been followed, for example, just using over the incident involving the ULD and the Blair Protocols had been followed and adhered to, would that have solved that problem?---I believe so. When management know there's no checks and balances that, you know, something can go wrong and, you know, management aren't an amorphous group, the more senior management aren't there at night time and they don't even know what goes on, but, you know, if we're able to establish that some breach of procedures had happened and that set up ways of preventing them from happening again, then, of course, you know, the problem goes away, but if people are allowed to do whatever they like and no one can bring them to task, the behaviour keeps happening.

PN500

All right, thank you. You can step down?---Thank you very much.

<THE WITNESS WITHDREW [3.18PM]

PN501

MR FAROUQUE: Now, Commissioner, I think we have got through a bit more than I had expected, and lest it be seen that I have wasted the Commission's time by not having Ms Herrington available. So Ms Herrington will be available tomorrow morning, as I've indicated. She's available to attend early, if that is convenient to the Commission and to my learned friend.

PN502

MR O'GRADY: Sorry, Commissioner, from our part I would have thought that remaining witnesses will be briefer than Ms Doyle and I would have thought we would finish the evidence tomorrow, subject of course to cross-examination of - - -

PN503

THE COMMISSIONER: Well, I sincerely hope so.

PN504

MR O'GRADY: Yes.

PN505

THE COMMISSIONER: You're talking about all the witnesses tomorrow?

PN506

MR O'GRADY: Yes, but I'm in the Commission's hands.

PN507

THE COMMISSIONER: Yes. No, I have other commitments that I can't - we'll commence at 10 o'clock tomorrow.

PN508

MR FAROUQUE: If the Commission pleases.

PN509

THE COMMISSIONER: Are there any other matters then before we adjourn?

PN510

MR O'GRADY: Not from my part, Commissioner.

PN511

THE COMMISSIONER: Mr Farouque?

PN512

MR FAROUQUE: No, Commissioner.

PN513

THE COMMISSIONER: All right. These proceedings are now adjourned.

<ADJOURNED UNTIL WEDNESDAY 26 OCTOBER 2005 [3.20PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #G1 OUTLINE OF SUBMISSIONS ON BEHALF OF AUSTRALIA POST DATED 11/07/2005 PN86
EXHIBIT #F3 EARLIER DOCUMENTATION PREPARED BY COMMISSION ON 31/05/2005 PN188
JOAN DOYLE, AFFIRMED PN196
EXAMINATION-IN-CHIEF BY MR FAROUQUE PN196
EXHIBIT #F4 STATEMENT OF JOAN DOYLE PN207
CROSS-EXAMINATION BY MR O'GRADY PN208
RE-EXAMINATION BY MR FAROUQUE PN478
THE WITNESS WITHDREW PN500