C2005/2401, Transcript of Proceedings [2005] AIRCTrans 2325 (9 November 2005)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 13298-2

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

11.08AM, THURSDAY, 27 OCTOBER 2005

Continued from 26/10/2005

PN1039

MR O'GRADY: Commissioner, thank you for the indulgence before coming on to the bench. The reason for the delay is Mr Farouque and I just wanted to discuss the request we received from the Commissioner's associate yesterday. In response to that request my client has gone through the bundle of documents that's referred to in the transcript of the certification proceedings and we think that there are potentially four documents that might be relevant to the right of entry issue, but if they're relevant, they're only relevant in a tangential way.

PN1040

THE COMMISSIONER: Is that agreed between you?

PN1041

MR O'GRADY: I think the situation is Mr Farouque doesn't concede that they're relevant. Mr Farouque's approach is, well, why don't we just hand up the whole bundle to the Commission and the Commission can have regard to it. The only difficulty I have with that, of course, Commissioner, is that at this stage I haven't considered the whole bundle because I was provided with the documents that we thought might be relevant and rather than delay things further I propose that I should simply hand up the four documents that we say might have relevance and then they can be the subject of submissions at the end of the day.

PN1042

I don't understand Mr Farouque is suggesting there are other documents there that are relevant to the request that came from the Commission and I think it is common ground, Commissioner, that there is no document in the bundle that expressly addresses the issue of the Occupational Health & Safety clause, clause 5.

PN1043

THE COMMISSIONER: Yes. Excuse me a moment. It was specifically the transcript of the proceedings before his Honour, Vice President Lawler, that I was concerned about. I mean, I do have the transcript available but I just wanted to check with the parties whether they believed there was anything in that that was relevant to the issues before me. I mean, I took the initiative as a matter of caution because obviously if there were undertakings or comments made during the certification of the 2004 agreement, pertinent to these matters, then I should be aware of them.

PN1044

MR O'GRADY: Yes, Commissioner.

PN1045

THE COMMISSIONER: But I have the transcript and I've just alerted the parties to the fact that I will be reconsidering that to see if it provides any guidance in relation to the matters which are extant to this application.

PN1046

MR O'GRADY: Yes, thank you, Commissioner. Perhaps if I and, if you so desire, Mr Farouque can address the transcript as part of our submissions at the end of the day.

PN1047

THE COMMISSIONER: Yes, that's up to you.

PN1048

MR O'GRADY: But to facilitate that, can I seek to tender the documents that we obtained from the search of the bundle so that the Commission has those on the record and, you know, whatever can be made of them, can be made of it. The first document I'd seek to hand up to the Commission is a letter from Australia Post to Mr Greg Combet, the Secretary of the ACTU, dated 20 August 2004.

EXHIBIT #G4 LETTER AUSTRALIA POST TO GREG COMBET, SECRETARY ACTU DATED 20/08/2004

PN1049

MR O'GRADY: The second document I'd seek to hand up is a letter from Mr David Baker, Group Executive Officer of Australia Post to Mr B Borg, Divisional Secretary of CEPU dated 8 September 2004.

EXHIBIT #G5 LETTER DAVID BAKER, GROUP EXECUTIVE OFFICER AUSTRALIA POST TO BRIAN BORG, DIVISIONAL SECRETARY CEPU DATED 8/10/2004

PN1050

MR O'GRADY: The next document I'd seek to hand up is a letter, once again from Mr Baker to Mr Borg and also dated 8 September 2004.

EXHIBIT #G6 SECOND LETTER DAVID BAKER TO BRIAN BORG DATED 8/10/2004

PN1051

MR O'GRADY: Finally, Commissioner, you will see that that last letter I handed up refers to guidelines in respect of union delegates and if I could seek, as a matter of completeness, to hand up those guidelines to the Commission.

EXHIBIT #G7 GUIDELINES FOR UNION DELEGATES

PN1052

MR O'GRADY: Commissioner, that's all that I wish to say about the inquiry from your associate yesterday. I don't know whether my friend has any comments that he wishes to make.

PN1053

THE COMMISSIONER: Yes, thank you. Mr Farouque?

PN1054

MR FAROUQUE: Commissioner, it appears that those are the only documents in the bundle which is handed up which dealt with the matter of right of entry. I agree that there doesn't need to be any documents which deal with any undertakings or any summary understanding, so to speak, in respect of the Occupational Health & Safety clause in that bundle of material. The bundle of material, I think - I mean, what can be said about the remaining bundle of material is that it deals with certain understandings in respect of clauses, other clauses in respect of the agreement, but that's the effect of that particular material. I don't think that's controversial from my learned friend's perspective. I think he'd indicate that if he - - -

PN1055

MR O'GRADY: I haven't read it, Commissioner.

PN1056

MR FAROUQUE: I have no objection to that whole bundle being before the Commission.

PN1057

THE COMMISSIONER: Yes.

PN1058

MR FAROUQUE: Perhaps my learned friend could consider the bundle at some point and then decide whether he objects to that course.

PN1059

THE COMMISSIONER: In final submissions I would ask that the union and Australia Post provide me with their response to the following issue. So far before the Commission we have the operations of EBA6, specifically clause 3.5 and clause 5. There is also the matter of what is commonly referred to as the protocols, or the Blair Protocol from 2001, and how they interrelate to clause 3.5 and clause 5 of the extant agreement. Following on from the submissions by the applicant this morning, there is the issue over the guidelines in relation to union delegates and I'd like your advice or your view on the extent to which the guidelines for union delegates inter-relate with clause 3.5, clause 5, section 285D and the Blair Protocols.

PN1060

What I can say is there seems to be no shortage of policies and agreements upon which you operate. It's just a matter of how they all interrelate. It's not only that, but that's one of the issues. Yes, Mr O'Grady?

PN1061

MR O'GRADY: Yes, thank you, Commissioner. Commissioner, if I could call Mr Peter Bass.

<PETER ALFRED BASS, SWORN [11.17AM]
<EXAMINATION-IN-CHIEF BY MR O'GRADY

PN1062

MR O'GRADY: Mr Bass, could you tell the Commission your full name, please?---Peter Alfred Bass.

PN1063

What is your occupation, Mr Bass?---The Facility Manager at Dandenong Letter Centre.

PN1064

In that occupation, what is your work address?---Nathan Road, Dandenong.

PN1065

For the purpose of these proceedings have you prepared a witness statement?
---Yes, I have.

PN1066

Do you have a copy of that with you?---Yes, I do.

PN1067

Is that a witness statement that runs for some 26 paragraphs?---Yes, it is.

PN1068

Are there a total of 13 exhibits thereto?---Yes.

PN1069

To the best of your knowledge is what you've said in the witness statement true and correct?---Yes.

PN1070

Are the exhibits that are appended thereto the exhibits that are referred to in the witness statement?---Yes.

PN1071

I seek to tender Mr Bass' statement, Commissioner.

EXHIBIT #G8 STATEMENT OF PETER ALFRED BASS

PN1072

MR O'GRADY: Just briefly, Mr Bass, you refer in paragraph 11 of your statement to the regime created by the Occupational Health & Safety Commonwealth Employment Act 1991. Can you express a view as to whether or not that regime, when coupled with the Occupational Health & Safety 1992 Agreement is an effective way of bringing to management's attention and resolving Occupational Health & Safety issues when and if they arise?---I believe it's an extremely effective way of dealing with the issues that exist within the facility. The HSRs that exist within the facility are well trained and more than adept in raising issues relative to the facility and dealing with those issues at the local level. If they're unable to be dealt with at the local level, they're raised up through the various structures of the Act.

**** PETER ALFRED BASS XN MR O'GRADY
PN1073

Now, if a HSR has a concern about an Occupational Health & Safety issue, what are the options open to that individual to have that issue addressed?---Raised locally within the facility management, they have the opportunity to raise at our OH&S committees that are held six weekly and - - -

PN1074

Yes. So I understand that. There are OH&S committees held six weekly. Who attends those?---Myself, a number of designated managers within the facility and the OH&S HSR representatives within the facility and/or their deputies if they're not available. So there's seven HSRs and seven deputies within the facility.

PN1075

We heard some evidence a couple of days ago that there was a very real problem in finding enough people to act out the role of HSRs. Can you comment on that evidence for me, please?---I'm certainly not aware of that. There were elections conducted, from memory, I would say about March this year. I don't think they have any issue in regards to finding people to do that role and those people have actively done that role since, and done it well.

PN1076

You were telling us that one of the options of the HSR, if they perceive there's an OH&S issue, is to raise it through the various committees. What are the other options open to a HSR?---Equally if they feel that the issue has not been addressed they can put in a PIN notice in regards to - - -

PN1077

What's a PIN notice?---It's a notification, an issue notification in regards to the incident and that raises it up to the ComCare level of investigation.

PN1078

What is the effect on your operations if a HSR issues a PIN notice, say, with respect to a certain machine or a certain procedure?---We immediately, as management, immediately have to act in regards to the incident, investigate and rectify locally where possible.

PN1079

Now, you mentioned earlier that that also has the effect of raising it to a ComCare level. What does that mean? What does raising it to a ComCare level
mean?---ComCare - if deemed, we will come out and do an official investigation in regards to the incident, even if it has been rectified in some circumstances.

PN1080

We also heard some evidence a couple of days ago that ComCare are very slow or very reluctant to come out and investigate matters. In your experience, where there has been a genuine Occupational Health & Safety issue raised how have ComCare responded?---Extremely diligently in my opinion. Certainly I haven't seen that much evidence of it at Dandenong other than in another Commission hearing matter, but certainly in my time in delivery, ComCare have been more than diligent and been there extremely quickly.

**** PETER ALFRED BASS XN MR O'GRADY
PN1081

What are the powers of the people from ComCare with respect to Occupational Health & Safety?---Look, I'm not 100 per cent sure in regards to answering that, but I know they do have relative legal powers in regards to decision.

PN1082

I have no further questions.

<CROSS-EXAMINATION BY MR FAROUQUE [11.23AM]

PN1083

MR FAROUQUE: Mr Bass, it would be fair to say that the reason Australia Post declined to grant Mr Dohrman and Mr Gorman right of entry on or about the notification of 28 February 2005, the reason that Australia Post declined to provide them right of entry was that Post considered that clause 5 of EBA6 did not impost upon Australia Post any obligation, any legally enforceable obligation, is that right?---From my interpretation, I don't believe there was a breach in regard to the specific wording, but having said that I also believed that there was a process that existed in the facility to actually investigate the incident claims that were portrayed in the letter.

PN1084

Yes, and certainly the consideration or the conclusion that you reached, and this is a conclusion you agree that Post generally holds is that clause 5 of EBA6 cannot found a right of entry?---I'm advised of that, yes, by my HR people. I certainly take my advice from the HR people who are far more educated and have are far more knowledgeable in those areas.

PN1085

Yes, and that was the reason why Mr Dohrman and Mr Gorman were denied entry?---Part, yes, but as again, as I said, I think there are other relevant arrangements that exist within the facility to investigate those issues at a local level.

PN1086

Now, you, at paragraph 7 of your witness statement?---Yes.

PN1087

You refer to your correspondence of 1 March 2005, do you see that?---Yes.

PN1088

In that correspondence, that's a reference to the correspondence referred to in the previous paragraph?---Yes.

PN1089

Paragraph 6?---Yes.

PN1090

I am of the opinion not only that the more appropriate avenue for address in such circumstances of a well defined and understood Occupational Health & Safety procedures developed by Australia Post and the CEPU, but more importantly that clause 5 of EBA6 is not capable of breach and consequently cannot give rise to a right of entry in such circumstances.

PN1091

Do you see that?---Yes.

**** PETER ALFRED BASS XXN MR FAROUQUE
PN1092

The substantial reason why you declined right of entry on that occasion in respect of Mr Dohrman and Mr Gorman was the conclusion that you've reached on advice, so to speak, of human resources that clause 5 simply could not give rise to a right of entry, is that right?---Certainly on both factors, yes.

PN1093

Now you refer to, in clause 11, of your statement, a number of committees and structures set up in respect of Occupational Health & Safety in the Australia Post Occupational Health & Safety Agreement 1992?---Yes.

PN1094

That's right, isn't it?---Yes.

PN1095

Those are formal structures, so to speak, are they?---Yes.

PN1096

THE COMMISSIONER: I'm sorry, which paragraph are we at?

PN1097

MR FAROUQUE: Paragraph 11.

PN1098

THE COMMISSIONER: Yes, thank you.

PN1099

MR FAROUQUE: You agree, aren't you, that they don't solely encompass the structures or systems by which Occupational Health & Safety concerns are raised with managers from Australia Post, Australia Post generally?---I'm not too sure what you're asking me there.

PN1100

Do you agree with the proposition that these structures set out in paragraph 11 do not encompass all of the means by which Occupational Health & Safety issues are raised with Australia Post and its managers?---Certainly within the environment I work in, we work within that structure. There's no doubts about that. So I'd have to say in the environment I work in, yes, the do.

PN1101

You understand, don't you, that often members will speak to officials of the union, that's officials employed by the union about Occupational Health & Safety issues, that's right, isn't it?---Well, I'd say yes, that's possibly so.

PN1102

And officials of the union may raise those matters with Australia Post directly, is that right?---I believe that may have occurred, yes.

PN1103

And that occurs, raising those matters with Australia Post, because outside the formal structures of committees and the like, is that right?---Look, I wouldn't say it was on a regular basis. I mean, I think people - - -

**** PETER ALFRED BASS XXN MR FAROUQUE
PN1104

I'm not asking whether it's on a regular basis?---People within that facility understand the process and most of the employees would go through the HSRs or the relevant process.

PN1105

Yes. I'm not asking you whether it's a regular process or the like.

PN1106

THE COMMISSIONER: You did refer to regular.

PN1107

MR FAROUQUE: Well, I'll put the question again then, Commissioner.

PN1108

You understand, don't you, and this is something that you may well have experienced directly, that officials of the union will speak to you or managers of Australia Post directly about issues which they say are Occupational Health & Safety issues which they want to raise with you directly as a manager, that's right, isn't it?

PN1109

MR O'GRADY: Well, Commissioner, if I can simply object on the basis that conversations that other managers may or may not have had with the union, in my submission, this witness isn't in a position to give evidence about. I have no objection to if the question is what his experience has been, but to the extent to which he's talking about what other people may have or what may have happened, is clearly hearsay, and it's of very little weight in any event, in my respectful submission.

PN1110

THE COMMISSIONER: Well, perhaps if what Mr Bass has directly experienced or of his knowledge of other people.

PN1111

MR O'GRADY: Yes.

PN1112

THE COMMISSIONER: He is in a senior position and would be more than likely be privy to any information where other senior managers in the facility have been contacted.

PN1113

MR O'GRADY: Yes. If the question is put in terms of focus on his direct knowledge of things, or specific examples, I have no objection, Commissioner.

PN1114

MR FAROUQUE: Mr Bass, you're aware that officials of the union have raised with you directly or, indeed, with other Australia Post managers issues about Occupational Health & Safety?---Yes, there are occasions where they do.

**** PETER ALFRED BASS XXN MR FAROUQUE
PN1115

And raising those matters with you and other managers in respect of Occupational Health & Safety sometimes occurs outside the formal committee structures so to speak, the formal structures set out in the 1992 Australia Post Occupational Health & Safety Agreement?---I would say probably no from the technical viewpoint in that generally the issues are raised in regards to the HSR having an involvement in the investigation so the process has actually started. When the process tends to fall down, the organisers or officials of the union will get involved in regards to their non satisfaction as to how it's proceeding. So within the process, the process has actually been actioned and commenced. Then you would possibly have a discussion in regards to - - -

PN1116

Now, you refer in your statement to discussions which occurred in respect of clause 5 during the negotiation of EBA6, you refer to that in clause 8 of your statement, do you have that?---In clause 8?

PN1117

Yes?---Yes.

PN1118

You didn't participate directly in those negotiations, did you?---Not - I did actually participate in the EBA6 negotiations, but not where they were specifically discussing this issue.

PN1119

So what you say there is not based on any direct knowledge, so to speak, of any discussions which occurred during those negotiations?---No.

PN1120

In relation to the matters which were the subject of the notification of 20 February, the attempted right of entry by Mr Dohrman and Gorman?---Yes.

PN1121

You understand that the union put forward an account of those particular events in relation to those matters which had sought entry?---Yes.

PN1122

Australia Post had a different view about those events, that's right, isn't it?---Yes.

PN1123

You accept that there was a difference between the union and Australia Post about what had occurred in relation to those particular incidents, that's right, isn't
it?---We certainly investigated the issues as they were put forward. There were some differing in regards to how they were portrayed, yes.

PN1124

You accept, don't you, that the union has a legitimate interest in dealing with Occupational Health & Safety issues?---Yes.

**** PETER ALFRED BASS XXN MR FAROUQUE
PN1125

And you accept that in dealing with those, with Occupational Health & Safety issues, the union has a legitimate interest in investigating matters where it considers that Occupational Health & Safety standards have not been met?---Yes.

PN1126

That includes, it may be you agree to be appropriate to allowing officials to inspect particular sites or machinery which concern whether Occupational Health & Safety standards have been met?---I think we've got the relevant process in place in the facility in regards to HSRs.

PN1127

So you say it's not appropriate to have union officers inspect machinery of equipment which are relevant to an Occupational Health & Safety standard, is that what you're saying?---I certainly haven't had the incident where it's been a requirement, that's for sure.

PN1128

I'm not asking you whether it's a requirement or not?---I guess my overriding answer is that I probably would take advice from HR in regards to an incident where it was deemed necessary.

PN1129

Do you accept that it's appropriate to allow officers of the union to investigate Occupational Health & Safety breaches by speaking to employees at the work place?

PN1130

MR O'GRADY: Commissioner, before that question is answered, could I ask how it's relevant in that this individual, as Mr Farouque has obtained in cross-examination wasn't involved in the negotiation of this particular clause. He is a manager with Australia Post, but his view can't, in any way, in my submission, bind Australia Post and I just don't see what this man's views about that issue - where they're going to take the Commission in the context of the issues that are raised in this case, and I say that not knowing what his answer is going to be. It just goes to the relevance of this line of questioning, Commissioner.

PN1131

THE COMMISSIONER: I just don't agree with you, Mr O'Grady. I mean, Mr Bass is the Manager of one of Australia Post's largest facilities.

PN1132

MR O'GRADY: Yes.

PN1133

THE COMMISSIONER: And he was involved in the proceedings over specific incidents earlier in this year. I don't think that your objection can be sustained.

**** PETER ALFRED BASS XXN MR FAROUQUE
PN1134

MR O'GRADY: As the Commission pleases.

PN1135

MR FAROUQUE: I want to ask you, Mr Bass, and I ask you, do you agree that it's appropriate that in investigating a suspected breach of Occupational Health & Safety standards union officers be allowed to interview employees of Australia Post at the work place in relation to those matters?---My answer would be no. I think that that's a relevant process that exists.

PN1136

I have no further questions of the witness, Commissioner.

PN1137

THE COMMISSIONER: Mr Bass, I have got a couple of questions for you. In paragraph 5 of your statement you go to four incidents?---Yes.

PN1138

To regarding the bar code sorters and the other two concerning ULDs. The last two in particular have been emphasised more in these proceedings than the earlier two?---Yes.

PN1139

But just let me ask you this about the bar code sorters. If you take 5.1 where there was one employee only working on bar code sorter number 10, can you briefly explain to me what happened in that situation?---Commissioner, from my investigations it was portrayed to me that the - - -

PN1140

I'm sorry, who raised the problem?---I think it was a HSR or one of the senior shop stewards, from memory, just from the documentation.

PN1141

Yes?---What occurs is on return of shifts, when the teams actually have their breaks and they're sent off back into the functional area, we staff our bar code sorters with three staff on each machine. As staff make their way, some staff take different periods of time to actually to get to the machine and this is events, I believe, where one person was at the machine, commenced the machine in regards to the feeding of letters into the machine. The machine was clear at the time. They fed the letters into the machine. The machine starts sorting out a rate. The other two people were across there within two minutes or three minutes of the operation commencing. Now, the other two people on the machine, on a bar code sorter, one person feeds the machine, the other two walk the tracks taking letters off the machine. And that issue occurs at periods of time within the facility.

PN1142

Is there any way that that can be stopped or is it necessary to stop it? Is it the fact that it is the punctuality of two people not getting to the machine quickly enough?---Yes. Look, in this case I believe it was. There are also incidences where the shift will be - the shift or the team are actually going to their lunch and for various reasons we have two or three minutes of mail to still run through the machine to make our service standards for the night. It isn't uncommon for the machines still to be staffed by one or two people as the rest of the team go for their lunch, in regards to taking mail off the apparatus. We have had local discussions within the facility and there is an agreement within the facility that that can occur.

**** PETER ALFRED BASS XXN MR FAROUQUE
PN1143

Is there a - I presume there is - but can you confirm that there is a SOP, Safe Operating Procedure, in relation to the operation of the bar code sorter?
---Yes, there is.

PN1144

And is that requirement that there are three employees?---Yes.

PN1145

But what you're saying is that it can be varied by local arrangement?---There's certain incidences and the incidents that occur don't occur frequently. There are obvious incidences where the machine will be run by one or two people for specific periods of time, and I'm talking, one, two, three minutes, as the machine closes down and/or they're taking the mail off the actual stacker. So the machine isn't running effectively as what it would normally be at 30,000 articles an hour, et cetera. Ultimately we've got people just taking mail off the stackers, putting them in trays, so the trays can be sent off for the final clearances.

PN1146

So at the incident in 5.1, that was a couple of minutes?---Yes.

PN1147

And the bar code sorter was not going?---No.

PN1148

In operation?---As I understand the person was actually stacking mail on the feeder at the time and the feeder wasn't even in operation.

PN1149

Can I just go back to the question that Mr Farouque asked you on whether the union has a legitimate right to raise Occupational Health & Safety issues. Now, I know you've addressed this question in part by the fullness of your statement at paragraph 11 and you've said, look, that's not everything that happens in terms of the operation of the agreement which has been reached to give effect to the requirements of the Occupational Health & Safety Commonwealth Employment Act. You quite clearly say it s a summary. Can you just clarify for me, when is it legitimate, and you have said it is, for the union to raise Occupational Health & Safety issues, when does that occur? You have in place these arrangements with your HSRs and with your joint committees and the way in which that elevates through to a state committee, a national committee. Can you just perhaps even give me an example when you would see it would be appropriate for a union official to raise an issue?---Commissioner, in my time and experience within Operations I actually struggle to remember too many occasions where a union official has raised incidences of what they considered was OH&S safety. Generally what will happen is the incident will occur. It's investigated through the correct forms, be it the HSR raised to the relevant levels if necessary and including PIN notice and ComCare. Generally the issue is raised to me more about the individual involved in the incident and there will be more about aspects of the individual and unfairness to the individual rather than the actual incident itself, or I guess the danger existing within the incident itself. It's always been about the individual when I get to deal with them.

**** PETER ALFRED BASS XXN MR FAROUQUE
PN1150

Yes, thank you. That certainly accords with the history of cases which have been before me in relation to Occupational Health & Safety issues, that they really have come forward on applications from the union because the union has regarded what has occurred to the individual as unfair. Thank you, that clarifies that. If I could just ask you for a couple of examples. Where there was an issue, for example, over someone breaching a safe operating procedure, there's so many cases you've all got running before me at the moment I'm hard pressed to remember, just pull something out of the air that isn't the subject of proceedings before me, so we'll have to do it in the abstract. If someone seriously breached a safe operating procedure?---Yes.

PN1151

Now, I know that's theoretical, how would that progress?---Generally, once the incident is raised, and generally it's raised either to management or the HSR on the floor.

PN1152

By - - -?---By an individual.

PN1153

An individual employee who observes something?---Yes, who observes the incident. Sometimes it's the HSR, sometimes it's the manager, the area manager and/or an employee on the floor can raise it to either parties. Where they've breached the safe operating procedure, the person will actually be suspended from the duties within that area. That doesn't mean that they're suspended fro the work floor. They'll be put in other areas, but they'll certainly be suspended in regards to the carrying out of that duty. What occurs then is that there is P400, which is just a form, our investigative form, filled out in regards to the incident and there's an immediate investigation of the incident by both management and including the HSR. That investigation will be carried out with some actions and recommendations of the investigation. If necessary it's raised up to ComCare as in notifying - or a notifiable incident and ComCare will also investigate if deemed necessary. Now, if the HSRs felt that the investigations and actions and recommendations weren't sufficient, they can then raise a PIN notice on the actual incident and the facility to ComCare and obviously a consequent investigation will occur then. As a follow on to that, every six weeks we have an OH&S committee meeting that exists in the facility. Every incident that occurs in the facility is reviewed at that meeting just to see whether the actions were sufficient, recommendations were sufficient and whether the investigation was sufficient.

PN1154

And in that context it's important then that the training is provided by, I think you say an external provider to all HSRs?---Yes.

**** PETER ALFRED BASS XXN MR FAROUQUE
PN1155

In a timely fashion?---Yes.

PN1156

So every incident which occurs is reviewed by the - what's the actual name of the committee?---The OH&S - - -

PN1157

So it's the facility - - -?---Yes, it's the DLC OH&S and E Committee.

PN1158

That's right. We've got environment in there somewhere, haven't we? What is it?---OH&S and E.

PN1159

OH&S and E?---Yes.

PN1160

If the incident is not resolved through the OH&S and E Committee there's dissatisfaction and I don't suppose it would be that unusual that management would view something one way and the HS&R would review it another, if there's still problems at the committee level, it then, I understand, is elevated through to the state committee?---That's correct, yes.

PN1161

How often does the state committee meet?---I think equally - I think it's two monthly or three monthly. I'm not 100 per cent sure.

PN1162

Is there capacity for them to meet on an as needs basis if there is a serious
issue?---Yes, yes.

PN1163

In your view, based on your understanding of the operations at DLC, then, other than with the union representing one of its members in relation to disciplinary action which may have occurred as a result of a breach of safe operating procedures, do you believe that there is a right that arises out of any of the agreements for the union to be involved in investigation OH&S
breaches?---Commissioner, I don't want to - - -

PN1164

I'm sorry, that's a difficult question?---Yes. From a personal viewpoint I believe that they already are involved because they're HSRs involved in the investigation of the incident and I think the system and the process allows for that to occur and certainly it's done diligently and done well by the HSRs at DLC. If the question is specifically addressed in regards to an outside official coming in and investigating it, I don't think so, no. I think the process is more than robust as it is.

PN1165

I see, and yes, you're absolutely correct, I was not referring to the HSRs. I was referring to the organisers or to the senior officials. On your DLC OH&S and E Committee, it is management and HSRs who are specific to DLC?---Yes.

**** PETER ALFRED BASS XXN MR FAROUQUE
PN1166

There are no outside people?---No.

PN1167

At the state committee there are representatives from the union?---Yes.

PN1168

And from Australia Post?---And Australia Post.

PN1169

And they would be union officials and senior Post and senior CEPU
people?---Yes.

PN1170

There was one other issue that came up in relation to your statement and attached to your statement, in fact, twice, I don't know whether that's because you consider it to be really important, but you've attached at PB8 in the first instance and PB12 in the second, the agreed protocols for the conduct of work place visits involving CEPU, PNT Victorian Branch officials attending Australia Post work place facilities?---Yes.

PN1171

Are these the protocols which are in place at DLC for the visit of union officials?
---Yes, that's what they operate on.

PN1172

So if we just briefly looked at the very first one, the manager or person in charge, and that would be you, will be notified at least 24 hours in advance of a visit?
---Yes.

PN1173

I see, and a suspected breach has to be detailed to you?---Yes.

PN1174

Or a particular issue associated with the certified agreement?---Yes.

PN1175

So it then goes on:

PN1176

The official shall advise the person charge the nature of the suspected award breach.

PN1177

Now, the union is arguing that clause 5 of EBA6 provides then at clause 5 to enter DLC to look at a suspected award breach and here we can go to the incidents of 27 or 28 February this year involving Mr Gorman and Mr Dohrman. Can you just explain to me again please the view that you took in relation to that? I don't require you to go to the detail of everything. The reason I'm asking you the question is to understand how you cobble together the protocols and how they operate, the 2001 agreement on OH&S and all these things, the guidelines for union officials, how all these things operate together?---Yes. I guess my first consideration, Commissioner, was whether a breach had actually occurred, a breach of the award had occurred. Based on my knowledge of what the Blair Protocols and, I guess, the process we've developed and how they've existed since, it's my opinion that primarily they weren't generated or introduced relative to OH&S issues, they were operational, and clear breaches of the awards in regards to the pay et cetera, et cetera, and as an operational person certainly my time in delivery and then in DLC, generally when we talk about a breach of award we talk about more generic issues such as those. So my first consideration was, had we reached the award, and then I took it on advice from HR in regards to what relevant breach that would have occurred, and as they were citing at that time, EBA6, paragraph 5.1, whether in fact that was an actual breach and I guess I took it on advice from HR in relation to that.

**** PETER ALFRED BASS XXN MR FAROUQUE
PN1178

So in relation to the protocols for work place visits, your understanding is that they have generally operated to do with wages and working conditions and not Occupational Health & Safety issues?---Yes. Yes, look, I've certainly had - this is the first incidence where I've ever had it raised in regards to that, most definitely.

PN1179

Do you take the view that because of the Occupational Health & Safety Act Commonwealth Employment and your agreement relating to all Occupational Health & Safety issues that wages and conditions are all dealt with through Blair Protocol, the EBA6 and some of the other agreements, the RRR Agreement, for example?---Yes.

PN1180

And that Occupational Health & Safety, because of their importance, have their own operating procedures?---Well, I think, obviously OH&S exists within EBA6, but I think - I guess it never ever generated before, the issue had never ever come to the forefront before because there is a robust process that everybody operated within with regards to how OH&S issues are investigated, dealt with, et cetera, and that process had always, I think, been accepted by all parties in regards to utilising it and it has been an accepted and well worked process. I mean, it has worked extremely well in the facilities in my opinion.

PN1181

Yes, and finally, and it harks back to my question about what happens when there's not agreement on a particular issue, if the HSRs said that in relation to an investigation to a ULD tipping over - no, we've got one of those - in relation to someone driving a fork lift dangerously?---Yes.

PN1182

And there was an investigation that occurred, but the HSR did not believe that the investigation was properly carried out, perhaps the relevant people, perhaps there were four people who saw exactly what happened and only two were asked their opinion, what would happen then?---Commissioner, in the normal course of action, and it certainly has occurred, I've seen it occur, the normal course of action would be that with the HSL was unhappy with the investigation and the outcome, a PIN notice would be raised forcing us to give an immediate response to the PIN notice and also notify ComCare. ComCare would be, I would almost guarantee that ComCare would be at our facility within 24 hours investigating. Certainly an incident in regards to a fork lift. There would be no doubts about that. In addition to that there's also the opportunity for the HSR to raise it through the relative levels of the State CEPU, who I've got no doubts would raise it with my boss et cetera in the State levels of Australia Post.

**** PETER ALFRED BASS XXN MR FAROUQUE
PN1183

But then my understanding is that once there were problems of that nature, prior to there being a State OH&S and E meeting, that you would be contacted as the manager of the facility by a union official?---Yes. Look, and I actually can't remember that occurring. I mean, generally ComCare would be the next player in the investigation and the HSR would deal with ComCare and obviously our State body deals with ComCare in regards to the seriousness of the incident and the report that flows out of that. I'm not too sure what goes on at the CEPU level in relation to it, but I've got no doubts that they'd take a keen interest as to what was going on, but certainly there is the structure there, because it's dealt with extremely seriously.

PN1184

Thank you, Mr Bass. Your evidence has been useful, but have I raised some other issues you now want to pursue?

PN1185

MR O'GRADY: Sorry, Commissioner, just in relation to some of the earlier issues you raised, could I have leave to ask just a couple of questions?

PN1186

THE COMMISSIONER: Have you re-examined Mr Bass yet?

PN1187

MR O'GRADY: I have, Commissioner, and these are matters that flowed from your questioning, not anything that - - -

PN1188

THE COMMISSIONER: Well, I'll provide the same opportunity to Mr Farouque, yes.

PN1189

MR O'GRADY: Of course.

PN1190

MR FAROUQUE: Yes, thank you, Commissioner.

<RE-EXAMINATION BY MR O'GRADY [12.01PM]

PN1191

MR O'GRADY: Mr Bass, you, in answer to a question by the Commissioner, indicated that there were various agreements with respect to the use of the bar code sorter at the facility. Who had been a party to those agreements?
---Management and the HSRs within the facility.

PN1192

Anyone else?---Not that I'm aware of.

PN1193

Also with respect to the bar code sorter, you indicated that with respect to the incident described in paragraph 5(i) of your statement that that concerned an individual who got to the machine first and the machine actually wasn't running, it certainly wasn't going full bore at the time?---Yes.

**** PETER ALFRED BASS RXN MR O'GRADY
PN1194

You indicated that there had been other incidents regarding only one or two people operating a bar code sorter. Were those in similar circumstances or in different circumstances?---There are always isolated - well, there are isolated incidences where you can have a person taking mail off a stacker of a bar code sorter for a minute longer than what the other two or three people who have operated the machine. Technically they're still operating a machine, if you take it in that context. The fact is, the machine isn't operating. They're actually clearing down the machine.

PN1195

From what you've observed of those incidents, did they pose an Occupational Health & Safety risk to the individuals concerned?---No, not at all.

PN1196

Thank you, Commissioner.

PN1197

THE COMMISSIONER: Yes, thank you. Is there anything, Mr Farouque?

PN1198

MR FAROUQUE: No, thank you, Commissioner.

<THE WITNESS WITHDREW [12.02PM]

PN1199

MR O'GRADY: Commissioner, those are the only witnesses we seek to call.

PN1200

THE COMMISSIONER: I'm loathe to ask such a leading question as what would you like to do now because I might not like the answer. You are aware I have a 1 o'clock matter. I'm loathe to stop someone who is in full flight, but it might be useful to go into conference to see how you want to deal with the issue of your final submissions.

OFF THE RECORD

PN1201

THE COMMISSIONER: These proceedings are adjourned until 1.30.

<LUNCHEON ADJOURNMENT [12.05PM]
<RESUMED [1.49PM]

PN1202

THE COMMISSIONER: You're lost in the wilds of the public transport system, Mr O'Grady. It provided me with an opportunity to catch up with some work, but I'm sorry to keep you.

PN1203

MR O'GRADY: I also apologise to the Commission.

PN1204

THE COMMISSIONER: Mr Farouque?

PN1205

MR FAROUQUE: Commissioner, you'll have of course the written submissions filed on behalf of the CEPU in this proceeding. They are the two sets of submissions. First of all, Commissioner, we rely on those submissions obviously. We wish to emphasise further matters in respect of those submissions and first of all I'd address the Commission on the question of whether the clause 5 of EBA6 is binding or not. Now, at first instance, Commissioner, I wish to take you to the decision of the Full Bench which has been referred to in the submissions, the SDA v Big W Discount Department Stores decision, and I can hand up a copy of that decision to the Commission.

PN1206

Commissioner, in respect of that decision I know the Commission as presently constituted will be well familiar with the decision having been a member of that Full Bench, but in that decision, Commissioner, a clause of materially similar terms as the one before the Commission today was the subject of consideration by that particular Full Bench. Now, at paragraph 13 of the decision, the submissions of the parties were there recounted and at paragraph 13 the contention submitted by the union party in that particular case was summarised as follows, and that relevantly I'll read from the third sentence of paragraph 13:

PN1207

It -

PN1208

being the union appellant

PN1209

contend that at clause 2.6A involved the commitment to achieve and maintain healthy and safe working conditions in all Big W work places and specify the means by which this ought to occur by abiding by all relevant Occupational Health & Safety legislation.

PN1210

That was the contention put forward on behalf of the union appellant in that particular case.

PN1211

Now, at paragraph 14 of the decision the submissions of the respondent were there summarised and I'll read from the third full sentence of that paragraph:

PN1212

It's submitted that sub clause 2.6A simply provided for a commitment of the parties to abide by all relevant ...(reads)... components of the enterprise agreement, pre-existing obligations imposed by other statutory means.

PN1213

So there in essence are summarised there the submissions of the respondent in that particular proceeding which were remarkably similar, I suppose, to the submissions put forward by Australia Post in this particular case in the sense that it's contended that the clause is not one of enforceable effect and is simply, in essence, a commitment by the parties creating no obligation.

PN1214

Now, Commissioner, there was consideration by the Full Bench in respect of those respective arguments put by the parties in that particular matter in the decision of the Commission in respect of that contention is contained at paragraph 28 and paragraph 29 of the decision, and that reads as follows:

PN1215

Clause 2.6 is headed Occupational Health & Safety. The appellant contended that clause 2.6 impose an obligation ...(reads)... the intentions of the parties and imposed no obligations. It made similar submissions about clause 2.6B.

PN1216

Then here, relevantly, at the conclusion of the Full Bench, adopting in very clear terms the reasoning of the union appellant in that particular matter:

PN1217

In our view clause 2.6A has the effect for which the appellant contends.

PN1218

Now, Commissioner, we rely on that decision, a decision of a Full Bench, and a clause the relevant parts of which are materially identical to that which is before the Commission today. We submit that that decision is authority for the proposition that a clause worded in these terms is of binding effect. Now, Commissioner, one needs only to refer to the terms of the clause and the reference to the terminology in clause 5 of EBA6 to find sustenance in the proposition that we put forward to the Commission.

PN1219

Relevantly it states, and if I could take the Commission to paragraph 9 of the second set of CEPU submissions, the clause, particularly the words:

PN1220

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

PN1221

There's critical emphasis, Commissioner, which we rely on to the terms "by abiding by", consistent with the reasoning adopted in the Big W Full Bench decision. The phrase specifies the means by which the commitment to achieve healthy and safe working conditions are to be achieved. That is, compliance with the relevant Occupational Health & Safety legislation, and the Australia Post Occupational Health & Safety Agreement 1992.

PN1222

The submission of the union is that by its terms the clause very clearly evinces an intention to impose binding obligations on Australia Post. So we rely, Commissioner, substantially on the wording of the clause and on the previous decision of the Full Bench in the Big W decision on a clause which we submit is materially identical. Now, Commissioner, if I could take the tribunal to paragraph 11 at page 8 of the written submissions of Australia Post.

PN1223

THE COMMISSIONER: That's G1, is it?

PN1224

MR FAROUQUE: Yes.

PN1225

THE COMMISSIONER: Yes, thank you.

PN1226

MR FAROUQUE: Commissioner, there a submission is made by Australia Post in respect of the clause. It's submitted there that the clause speaks of:

PN1227

A commitment to the achievement of maintenance of healthy and safe working conditions in all Australia Post work ...(reads)... the party to maintain this commitment during the currency of EBA6. It is not promissory in nature.

PN1228

Now, critically the submission there then goes on as follows:

PN1229

If the clause is intended to impose an obligation which, if not complied with, would amount to a breach of the ...(reads)... Post Occupational Health & Safety Agreement 1992 or any successor to that agreement.

PN1230

So in essence I suppose what is contained in that passage, particularly the parts commencing with the words "if the clause was intended", are recognition at the very least that the words:

PN1231

The parties will abide by all relevant Occupational Health & Safety legislation and the Australia Post Occupational Health & Safety Agreement or any successor is -

PN1232

that terminology, if taken alone, is indicative of an intention to create some binding legal obligations upon Australia Post.

PN1233

So the distinction that that submissions makes by Australia Post is the fact of the initial statement of the initial part of the clause, being:

PN1234

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

PN1235

Now, Commissioner, we simply say in respect of that third "upon" that the clause sets out the means by which that commitment is to be met and by setting out the means by which the commitment is to be meant, consistent with the decision of the Full Bench in the Big W decision, that it is imposing very clearly in our submission an obligation to achieve a binding obligation, to observe those particular instruments and Acts.

PN1236

So in my submission, Commissioner, the fact that there may be the preparatory words:

PN1237

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

PN1238

Is not in fact suggestive that clauses are merely a statement of intention, because it sets out, it sets out what the parties consider the obligation to be. That is, abiding by all relevant Occupational Health & Safety legislation and the Australia Post Occupational Health & Safety Agreement 1992.

PN1239

The clause in that sense, Commissioner, is entirely consistent with what the consideration by the Full Bench in the Big W decision where, in respect of 2.6A of the clause which was considered in that decision, it was materially in my submission identical and certainly we would submit that the clause evinces on its terms, on its face, an intention or a binding obligation upon Australia Post to abide by legislation, relevant Occupational Health & Safety legislation and abide by the 1992 OH&S Agreement.

PN1240

Now, Commissioner, we have also the matter of the predecessor clause in 3.1 of EBA5, a clause which is contained in the Shared Understandings clause of that particular instrument. Now, it was of course submitted by Australia Post in the proceedings before SDP Kaufman that that clause was not one which contained any binding obligation on Australia Post. We have the evidence of Ms Herrington in her witness statement setting out her awareness of that particular argument made by Post on that particular occasion, and the fact that in essence a beefed up clause, so to speak, in respect of Occupational Health & Safety evidently to overcome that particular deficiency is proposed by the union.

PN1241

Now, that clause, we say that where we have a situation where you had a clause in that particular context as part of a shared understanding in 3.1 and then in EBA6 you have at clause 5 a stand alone discrete clause with different terminology, different terminology, Commissioner. Not the same type of terminology that one sees in 3.1 of EBA5, very different terminology, setting out what is required in terms of abiding by Occupational Health & Safety legislation and the 1992 Occupational Health & Safety Agreement, one can infer that form that objective fact, when one compares those two instruments, that the clause is intended to remedy an evident defect in what was before or what was perceived to be a deficiency in what was before.

PN1242

That is, and we've heard the evidence of Ms Herrington, part of which was materially given in cross-examination about the fact that Australia Post had raised this issue in respect of clause 3.1(vii) of EBA5, that the clause was sought to remedy that particular deficiency, that they wouldn't be faced with those types of objections when it came to proceedings before this Commission or the like, in respect of the binding obligation on Australia Post about health and safety. So we say one can infer from that objective fact, Commissioner, we have one type of clause, Australia Post arguing a certain deficiency in respect of that clause in EBA5 and then in EBA6, a very different clause, a very different clause in its terms, there is an evident intention, one can infer from that objective fact to remedy a deficiency, to deal with an apparent deficiency or perceived deficiency by imposing, creating, binding obligations in respect of health and safety.

PN1243

So, Commissioner, we place significant store on those particular circumstances, Commissioner, because ultimately they are of assistance to the Commission in its consideration or contemplation of the issue, because, Commissioner, there are of course differing accounts about what was said during the course of negotiations, what the parties' respective aspirations were in the course of negotiations. There's different evidence on that account, and in that regard, Commissioner, may I take you to a decision of the Federal Court which is referred to in both submissions of Australia Post and of the CEPU, if I could hand up that decision of Mosharan v University of New South Wales 2002. It's a decision of Moore J, unreported, a decision 179, dated 1 March 2002, and if I could take the Commission to paragraph 27 of the decision, it's at page 12 of the copy that I've handed up to you, Commissioner.

PN1244

At paragraph 27 his Honour, Moore J, sets out some observations in respect of evidence as to antecedent negotiations:

PN1245

Evidence of antecedent negotiations including drafts and correspondence exchanged between the negotiating parties may establish background and facts which are known to both parties, and to that extent such materials are relevant. ...(reads)... (See the decision of AMWU v Qantas Airways Limited).

PN1246

So antecedent negotiations are indeed evidence which indeed courts rely upon for the purposes of, as part of extrinsic material to construe the terms of an agreement, but what the court here is observing and the Commission may find some - Commissioner, they may find some useful passage in terms of assessing the evidence here as to the negotiations, in essence, parties may pursue the matter with differing intentions, differing emphasis, hoping to achieve differing objectives, but in the end whatever differing intentions, objectives they had, the consensus, the final consensus is recorded in the actual terms of the agreement reached and so significant emphasis in my submission need be given to the terms of the actual clause, to the meaning of those terms, Commissioner, and consistent with the Big W decision we say they are events and intention that the clause be of binding effect.

PN1247

Now, when the Commission considers the totality of the evidence given in respect of the negotiations we have materially the evidence of Ms Herrington. She gave her account of what was said and what her intention was in respect of the negotiations in regard to clause 5 of EBA6. She gave evidence of what was said during the course of negotiations in clause 5 of EBA6 materially. She says that she conveyed that the CEPU saw clause 5 as creating obligations on Australia Post in respect of health and safety. She sets that out at paragraph of her witness statement. She says in reply:

PN1248

I told Mr Rogan that the CEPU wanted the clause, including the new agreement, not because of right of entry, but because the CEPU wanted to create health and safety obligations on Australia Post.

PN1249

THE COMMISSIONER: Sorry, what paragraph was that?

PN1250

MR FAROUQUE: Paragraph 7.

PN1251

THE COMMISSIONER: Thank you.

PN1252

MR FAROUQUE: It's F5.

PN1253

THE COMMISSIONER: Yes, thank you.

PN1254

MR FAROUQUE: So her evidence was that this matter was conveyed. In a further witness statement she set out the fact that she conveyed to Mr Rogan:

PN1255

I recall saying that by including the clause proposed by the CEPU and EBS that this was a way of making sure that Australia Post met their obligations and their Occupational Health & Safety Act 1991 and the Australia Post Occupational Health & Safety Agreement 1992.

PN1256

So clearly that is the evidence of Ms Herrington. In my submission
Ms Herrington was a witness of truth and she gave evidence in a frank and forthright manner and her evidence in that regard in relation to what she said to Mr Rogan, what she said should be accepted by the Commission as to what was said and, indeed, there's also evidence set out in paragraph 6 of her statement what the intention of the CEPU was in respect of clause 5, that it would query enforceable obligations on Australia Post about health and safety.

PN1257

Now, Commissioner, we say that Ms Herrington's evidence is evidence - she was frank and forthright to the Commission and her evidence in that regard should be accepted by the Commission as what was said and done at that particular - in respect of negotiations in that particular clause. Now, of course there are other accounts. We have first of all the account of Ms Oldmeadow. Justine Oldmeadow was present as a facilitator for Australia Post during the course of the EA6 negotiations. She says she was at - not at all meetings, but she was at a meeting where this matter was discussed. At clause EBA6 she admitted, and we rely on this, that she doesn't recall everything that was said at that particular meeting, and so we rely on that, Commissioner, on that admission.

PN1258

We note that insofar as she says that it was agreed in her statutory declaration, she said that it was agreed - the parties agreed that clause 5 of EBA6 did not create - I'll read it directly, she said:

PN1259

I clearly recall that including the provision -

PN1260

this is at paragraph of her statutory declaration:

PN1261

the parties agree that there was no intention to cooperate into the EBA obligations arising from the Occupational Health & Safety Commonwealth Employment Act 1991.

PN1262

Then she went on in her evidence-in-chief to say that that included the 1992 Occupational Health & Safety Agreement, and added that on to that phrase in her statement.

PN1263

She admitted that she inferred that from her recollection of what she says she recalls Mr Rogan saying that Australia Post considered clause 5 to be a statement of intention. So she doesn't clearly recall some express agreement by her own account between the parties that clause 5 of EBA6 was merely a statement of intention. She admitted that she inferred that from what she recalls Mr Rogan saying. So we rely upon that, Commissioner, in respect of the evidence of Ms Oldmeadow.

PN1264

Now, Mr Rogan's evidence, Commissioner, you will recall, Commissioner, Mr Rogan couldn't even bring himself to adopt the words in the clause itself. He was asked repeated questions and he had great difficulty in adopting the words of the clause when they were put to him and when he was asked as to what his understanding of those clauses - of that particular passage was in clause 5 of EBA6 that the union relies on. Now, there were repeated questions from the Commission directing Mr Rogan to respond to the question, but he was, in my submission, seeking to avoid that and it was only latterly in his evidence that he, I think very reluctantly agreed that he understood and the transcript will bear this out and as I recall it, he said something to the effect that the clause, he understood that the clause required Australia Post to comply by the Commonwealth Occupational Health & Safety Act 1991 and the 1992 Agreement, or words to that effect, Commissioner. The transcript will bear it out. But he finally adopted that that's what he understood the clause required.

PN1265

Now, what to make of the substance of what he put forward as to his account of the negotiation? In my submission the tenure of his evidence was really confined to the fact of an issue which is in a sense separate from - well, the concern which he is exercising in my submission, the totality of the evidence would suggest this, the concern which is exercising his mind was whether Ms Doyle would use clause 5 of EBA6. He refers to Ms Doyle I think in terms of some elements of the CEPU to exercise right of entry.

PN1266

Now, that was really the substance of, in my submission, what his concern is and perhaps one can consider, Commissioner, that indeed, the concern that he expressed, and the Commission might accept this, it concerned that he express it in the course of the negotiations, was about right of entry. Not about whether the clause is of binding effect such as to farm some collateral understanding that the clause wasn't of binding effect, some collateral understanding between the negotiators of the union and the Australia Post, but the concern he expresses, in my submission, the Commission could find, was whether Ms Doyle would use the clause for the purposes of right of entry, and Ms Herrington's response is consistent with one which is used consistently during the course of the negotiations as she said, when practically every clause was put through the Doyle filter, or the Doyle concern test, so to speak, that this agreement is not about one person. This agreement is an agreement between the CEPU and Australia Post.

PN1267

That was the effect of what Ms Herrington said and in my submission that is in a sense consistent with the substance of what is set out indeed, in Mr Rogan's file note that he admitted - he doesn't say that he made it contemporaneously, but he said he made it some time in February or March, that the concern that he is really expressing is a concern in that particular file note about entry. Not about in what it conveys to the union in that third dot point. It's about entry, not about whether the clauses have binding effect or not. So in my submission that's the substance of the concern expressed by Mr Rogan and that, of course, Commissioner, and in my submission that concern cannot be transposed into some subsequent determination or decision that the clause just simply - because our concern is expressed, that issue is raised, that that can be transposed in to some global finding of the clauses of no legal binding obligation.

PN1268

It just simply does not have that effect, Commissioner. So we say that when one looks at the totality of the evidence in respect of the negotiations about the EBA, about clause 5 of EBA6, one can take fully from Ms Herrington's evidence which, as I submit, emerges substantially undamaged during the course of cross-examination that it was conveyed by her at that particular meeting, that the CEPU wanted to create binding obligations on Australia Post in respect of health and safety.

PN1269

THE COMMISSIONER: What do you mean by binding? Morally binding, legally binding?

PN1270

MR FAROUQUE: Well, legally binding, Commissioner. That is what we say and we rely upon. If it has simply been some general moral injunction, Commissioner, one can just simply go back to the fact that there wouldn't have been an expression of the means by which that matter is to be achieved, which here it very clearly does set out and means, by which Australia Post is to abide by the Occupational Health & Safety Act, all the relevant Occupational Health & Safety legislation and the 1992 agreement. Clearly it's the intention on the part of the union that it be an enforceable obligation because (1) you have what Ms Herrington said about proceedings before this Commission.

PN1271

We also had the evidence of Ms Herrington at paragraph 6 of the witness statement where she's conscious - at paragraph 6 she says, arising from proceedings before Senior Deputy President Kaufman, she's conscious of the suggestion by Australia Post that at 3.1(vii) was only a statement of intention and not an enforceable obligation. So very clearly, Commissioner, we say that insofar as the union's intention, it's apparent that a clear consciousness and desire to achieve a binding obligation upon Australia Post in respect of health and safety and that binding obligation is one which is intended to be legally enforceable.

PN1272

THE COMMISSIONER: Mr Farouque, do you say that the Occupational Health & Safety Commonwealth Employment Act 1991 is an Act which has binding obligations on the parties that it covers?

PN1273

MR FAROUQUE: Well, yes, Commissioner. It does have obligations in respect of parties. Well, it does have obligations, Commissioner. I don't have the Act right in front of me. I will probably identify it when I've had a moment, but there are obligations on employers for instance to maintain a standard for a healthy and safe work place, but there are those obligations, Commissioner. I think it might be section 16 or thereabouts, Commissioner. Yes, Commissioner, section 16, for instance, speaks of an employer taking all reasonable and practical steps to protect the health and safety of work of the employers and employees without limiting the generality of subsection 1 and applied breaches. In that subsection they're called reasonably practical steps to provide and maintain a safe working environment, including plant and systems of work, that is safety of employers, employees and about risks to their health, et cetera, et cetera. They are very strongly set out.

PN1274

THE COMMISSIONER: If I look at that section 16(2)(d), it places an obligation on the parties and it specifically mentions the employer in consultation with any involved unions regarding the employees of the employer to develop an appropriate policy relating to Occupational Health & Safety, should I take that the 1991 agreement is the document which arose from that requirement?

PN1275

MR FAROUQUE: Commissioner, I'll probably need to consider that matter further before I respond to that.

PN1276

THE COMMISSIONER: Yes, because it is for me a very important issue because I'm assuming that it is.

PN1277

MR FAROUQUE: Yes.

PN1278

THE COMMISSIONER: I'm assuming that the - have I stated it correctly, as the 1991 Agreement?

PN1279

MR FAROUQUE: You said it was the 1991, I think you meant 1992, yes.

PN1280

THE COMMISSIONER: I beg your pardon, yes, the 1992 agreement, yes, because I'm assuming that after the promulgation of the Commonwealth Act that the parties had no choice because they were covered by "other than to reach an agreement". Can you assist me there, Mr O'Grady?

PN1281

MR O'GRADY: Yes, Commissioner. My instructions are that you are right, that the 1992 agreement is designed to address that part of the Act and I think that appears in the forward to the 1992 agreement. If you look at the forward to the 1992 Agreement it makes reference to the Act and says, that's what it's designed to do. If the Commission pleases.

PN1282

THE COMMISSIONER: Yes, good, thank you. Yes, sorry, Mr Farouque, I didn't mean you to lose your train of thought.

PN1283

MR FAROUQUE: Yes, not at all, Commissioner. So we submit, Commissioner, that - just bear with me for a moment, Commissioner. We submit, Commissioner, that having regard to the matters that we've set out and the clause is really one which is, when one looks at the totality of it, and one looks at the clear wording of the particular clause, that it was their intention that there be binding obligations placed upon Australia Post in respect of its obligations regarding Occupational Health & Safety as they arise under the relevant legislation in the 1992 Agreement.

PN1284

So, Commissioner, that then goes or flows to two matters. One, we say that there is no ambiguity in respect of that clause 5 and we say that as a consequence no variation in the terms proposed by Australia Post need be made. Secondly, we say the clause is of a nature and of a type that can give rise to a right of entry pursuant to section 285B of the Act. Now, Commissioner, we say that in essence the substantial reason why Australia Post declines, and it's a position which it holds generally evidently in respect of any purported attempt to enter relying on clause 5 of EBA6, Australia Post contend, and substantially the reason why they declined Mr Dohrman and Mr Gorman the right of entry in late February 2005 was because of that particular view of that clause, and that emerged, particularly in response to a question of the Commission to Mr Bass, that that was the substance of the reason why they declined Mr Dohrman and Mr Gorman a right of entry.

PN1285

It's a position which they generally hold, Commissioner. Now, in that sense, Commissioner, much was made of the fact that there's this elaborate system of achieving Occupational Health & Safety objectives under the 1992 Agreement and there are various levels of committees at the work place level, state level, national level. We had also, Commissioner, materials of those considerations and consideration in respect of that matter. What we say are two material things. One, the union as an organisation and its officials, I think, unambiguously have legitimate interest in Occupational Health & Safety issues relating to their members and you heard Ms Doyle's evidence in that regard.

PN1286

She, in my submission, indicated the importance of that matter to herself as an official and evidently to the organisation. We heard the evidence of Ms Herrington in relation to that matter and clearly the union has a legitimate interest, as an organisation and its officials, a legitimate interest, being an industrial organisation, in addressing Occupational Health & Safety issues on behalf of their particular members. Now, Mr Bass recognised that, albeit he said that it shouldn't give rise to a power to - I think as I recall his evidence he said the union officials can investigate but in a sense that (1) in respect of inspecting machinery, I think he'd have to take instruction from Human Resources, and then in respect of interviewing members he seemed to change his position a little bit and said no, that they shouldn't have a right to enter the premises and interview employees at the work place, or words to that effect.

PN1287

But we have against that, Commissioner, a very clear terms of the Blair Protocol. The Blair Protocol, which Mr Rogan, as you will recall, says that Australia Post continues to affirm which Ms Doyle indicated that she continues to rely upon and evidently a matter which, during the course of these proceedings, is one that she has referred to numerous times, indeed, referred to in her evidence. The Blair Protocol in its terms, Commissioner, and as you've identified in a number of different parts of Mr Bass' statement, if I could ask the Commissioner to turn to - it's at 81, Commissioner.

PN1288

We have the Blair Protocol, Commissioner, which both parties affirm. I don't think there's any issue about that. It sets out a process regarding suspected award breaches, one of which, the first provision:

PN1289

Manager in charge to be notified at least 24 hours in advance by a CEPU official in regard to a suspected breach of an award or order of the Commission or a certified agreement. The CEPU official shall advise the manager or person in charge of the nature of the suspected award breach.

PN1290

Evidently Ms Doyle said that the union continues to rely on and comply with the Blair Protocol.

PN1291

It then goes on to say:

PN1292

If the suspected breach relates to an individual's impairment, a manager or person in charge will provide to the CEPU official information, attendance books, rosters necessary for the official to conduct his or her investigation.

PN1293

So we have one provision of the Blair Protocol which deals with issues in respect of pay. Then we have at 1.3 which goes on to say:

PN1294

The manager or person in charge will provide a suitable discrete area to enable the CEPU official to interview any individuals regarding a suspected award, agreement, act breach.

PN1295

Then critically, Commissioner, we have a provision in the Blair Protocol which expressly contemplates, and I, once again, Commissioner, rely on the evidence given by Mr Rogan that Australia Post continues to affirm the Blair Protocol:

PN1296

If the suspected award or agreement breach relates to an alleged inappropriate unsafe work practice, the CEPU official will be required to access to the work area concerned, the official may question individuals as to establish the facts regarding alleged breaches.

PN1297

So clearly this particular clause deals with breaches relating to Occupational Health & Safety standards in an award or agreement. It then says employees will be made available individually to discuss alleged breach with the CEPU official, discussions with the manager, person in charge will take place following the investigation of the matter in line with the agreed settlement of disputes procedures. So clearly we have a situation where the Blair Protocol is really setting up a mechanism, one of which - it clearly contemplates a mechanism in respect of Occupational Health & Safety and the document speaks for itself, Commissioner, the document speaks for itself, about how matters pertaining to or relating to breach of award or agreement, one of which is expressly contemplated to be a breach in respect of health and safety can be dealt with.

PN1298

This is a document, Commissioner, that Australia Post continues to affirm. It hasn't come to the Commission saying we depart from the Blair Protocol. Mr Rogan affirmed that document in his evidence and, Commissioner, the document - and Ms Doyle continued to adopt the document and we have then, in clause 3, protocols in discussions of award EBA breaches, it speaks - and this is in material here:

PN1299

Discussions between union officials and management shall be discussed in a non-volatile nature, without raised voices, threats or abusive language. It is understood that the purpose of the discussions is to clarify whether there has been an award, EBA breach and to resolve, explain or investigate the alleged breach.

PN1300

We have here, Commissioner, both sides, one would say, in probably one of the few matters of general consensus, say, yes, the Blair Protocol, and the Blair Protocol sets out an agreed process by which award breach matters are to be dealt with by which agreement breach matters are to be dealt with, specifically contemplates how entry issues in respect of matters relating to inappropriate, unsafe work practice, evidently referring to breaches of agreement dealing with Occupational Health & Safety. How those matters are to be dealt with, and, Commissioner, both signs affirmed it.

PN1301

We rely on the fact that it really does set out a standard as to how the matter is to be dealt with. Discussions will take place following the investigation of a matter in line with the agreed settlement of disputes procedure. Furthermore we have protocols for discussions. It's to be dealt with in a non volatile nature without raised voices, threats or abusive language and the purpose is to try to clarify whether there has been an award breach, to resolve, explain, investigate the alleged breach.

PN1302

So really, Commissioner, you have this quite elaborate system set up and, really, what is being said here, Commissioner, what is being given up by the union here is that there is not - and it is recognised in respect of this right of entry provisions, that there is no obligation. If you were to strip away - take away the Blair Protocol, take that all away, you're just relying on your statutory rights, there is no obligation upon an officer of the union to tell the employer what the suspected breach is.

PN1303

They can merely notify that they suspect a breach and they obtain right of entry, but the Blair Protocol sets up that the officers of the union will do that. They tell them what the breach is. Now, Commissioner, so there's a, in a sense, system here, which in some sense is very much to the detriment of the exercise of entry powers, in the sense that the union has been asked to tell the employer the nature of the suspected breach, where it would otherwise not be required to do so. So we say the Blair Protocol is something which the union has entered in to, it's affirmed by both parties and in a sense is a matter which should be given considerable weight, Commissioner, in the exercise of your discretion as to whether in the order in the terms sought should be made or not.

PN1304

We say it's almost conclusive, Commissioner, that if you consider that the award is of binding effect, if you consider that the agreement to the particular clause 5 of EBA6 is of binding effect, the Blair Protocol, the Australia Post affirm it, Australia Post affirm it, Commissioner, that the Blair Protocol should, in whether the Commissioner exercises its discretion or not, should play a significant part. It's an industrial arrangement, agreement entered in to under the auspices of this tribunal facilitated by the Commission and discussions between the union and one that the parties continue to affirm. It should be given significant weight, Commissioner, in its discretion as to whether an order in the terms sought should be issued or not.

PN1305

Commissioner, one can see that there's really a sense that this is a cooperative approach in terms of resolving issues. There'll be discussions in 1.6 of the Blair Protocol to take place from the investigation of the manner in line with the agreed settlement of disputes procedure. If we can all just contemplate that, Commissioner, and in the circumstance that both parties do affirm that document, Commissioner, we submit that it's terms are really overwhelmingly in favour of the union in respect of the order sought.

PN1306

Commissioner, as we've submitted, the fact that there are other systems to deal with Occupational Health & Safety issues, other structures under the 1992 agreement, is clearly not a factor which, when one puts - consistent with the Blair Protocol, and puts alongside the Blair Protocol, where the Blair Protocol specifically contemplates Occupational Health & Safety issues being dealt with by way of right of entry where there is a suspected breach relating to a suspected breach of the award or agreement, there's no reason why - the fact that there may be other mechanisms by which health and safety representatives may advance Occupational Health & Safety issues, there's no reason, Commissioner, why the fact that those mechanisms occur and exist that somehow then the Blair Protocol and what it contemplates, being an industrial agreement negotiated in this tribunal, should somehow just be given no effect whatsoever.

PN1307

Because that would be the substance of what would occur in respect of Occupational Health & Safety issues if Australia Post were allowed to hold to its general position that the union should somehow deal with Occupational Health & Safety issues through its alternative mechanisms via alternative mechanisms such as that set out in the 1992 Occupational Health & Safety Agreement. One would, in that situation, if the Commission went past the stage, as we urge it to, of deciding that clause 5 of EBA6 is binding, if the Commission reaches that stage and then, in assessing its discretion as to whether it makes the order sought or not, it decides not to, if the Commission was disposed not to because of the fact that there were these alternative mechanisms set out - or other mechanisms set out in the 1992 agreement as Mr Bass recounted in his statement, that would in effect be giving no effect to clause 1.4 of the Blair Protocol.

PN1308

That would be just rendered, in my submission, one which would in practical sense have no practical force or be given any practical effect. So, Commissioner, the case in respect of whether in the Commission's discretion it should make the order sought is in a sense overwhelming. Now, Commissioner, in relation to the matter of the Commission's discretion, I've gone on, Commissioner, to the argument that I've outlined in my opening submission about the fact that the Commission need not ultimately, in making a determination, in respect of the union's application, that clause 5 be of binding effect, and I only really want to refer the Commission to the submissions that we have made in part of this submission on that matter.

PN1309

We have submitted - does the Commission have that document?

PN1310

THE COMMISSIONER: Yes.

PN1311

MR FAROUQUE: At paragraph 2 of the document we say that the right of entry is dependent on the permit holder suspected that a breach of the certified agreement has occurred or is occurring, the right of entry is not dependent on the fact that a breach had in fact occurred or a breach occurred. All of those requirements are if the permit holder suspects that a breach has occurred or is occurring.

PN1312

Now, Commissioner, in support of that particular proposition we rely on a decision of the Full Bench of this Commission. Can I hand up a copy of that decision to the Commission? Now, Commissioner, that is a decision of the Full Bench of this Commission, Vice President Lawler, Senior Deputy President Lacy and Commissioner Richards, PR939097. Commissioner, that matter concerned an appeal by the Victorian Association of Forest Industries against the decision of Commission Blair in relation to an application brought by the employer association pursuant to section 25G of the Workplace Relations Act. What had occurred by way of background in that particular matter, as I understand it, Commissioner, is that the union had served on a series of employers a notice of intention to exercise its right of entry powers pursuant to the section 25B of the provision of breach.

PN1313

I think it had occurred in the context of some ancillary or industry dispute, enterprise negotiations, and there was a suggestion made in that case, Commissioner, and I think the Commission found some prima facie evidence in support of that matter, that the notification is really in respect to some type of collateral - the purported exercise of entry was in support of some collateral purpose. That is, in the context of industrial dispute as distinct from being a genuinely held suspicion on the part of the persons notifying of an award breach.

PN1314

But, Commissioner, if I could just take the Commission to clause 12 of the decision of a Full Bench in that particular matter. In clause 11, in the first instance, there was reliance by the employer association on the decision of Senior Deputy President O'Callaghan where in that particular case his Honour had said that he considered that it would be logical and fair for the employer to be made aware of the nature of the suspected breach, and then it was observed by the Full Bench that that statement was made without reference to authority and without any analysis of the relevant provisions. But maybe that in many cases, that it would be logical and fair for the employer to be made aware of the suspected breach.

PN1315

That is not a question. The question is whether on the proper construction of Division 11A of Part 9 of the Act there is an obligation on the permit holder to do this. Then at paragraph 12:

PN1316

It is a prerequisite to the exercise of a right of entry conferred on permit holders by section 25B that the ...(reads)... which the suspicion is held as a prerequisite to an exercise of the power conferred by section 285B.

PN1317

So clearly, Commissioner, we say that the bench there has recognised that the prerequisite for the exercise of the right of entry power conferred on a permit holder, is that the permit holder must in fact have a suspicion and that really is the critical matter. If the permit holder has that suspicion, that a breach has occurred or is occurring, then a right of entry arises, and in our submission, when one considers the terms of the Act, of the Workplace Relations Act and the provisions as they currently are, and I referred the Commission to those provisions in my opening, that it's very much contingent upon the suspicion of a suspected breach by the permit holder.

PN1318

Now, that is very different, Commissioner - and perhaps I'll let my learned friend address that and I might deal with the matter in reply - to the provisions which arose under the previous regime of right of entry which was directed at for the purpose of ensuring observance of an award or order of the Commission. That provision, Commissioner, was of a general effect. Here we have a narrower provision in the sense that it is really directed at breach of the Act or enterprise agreement or award or order. So that is the critical matter. It is directed at breach.

PN1319

So in a sense the provision is narrower because it's directed at breach as distinct from promotion of observance, for the purpose of promotion of observance of an award or order of the Commission. It's directed at a narrower matter, Commissioner, and it is contingent as is clear from subsection (1) of 285B of the suspicion to the permit holder. So the statutory scheme is mixed at the touchstone of the right of entry, suspicion of the permit holder. And in our submission when one follows through the effect of that, that if the permit holder holds that particular suspicion then a right of entry arises, and if one looks at the statutory provisions in those terms, Commissioner, there's no requirement in dealing with the union's application to ultimately decide whether clause 5 of EBA6 is a binding obligation or not.

PN1320

But I apprehend that, in a sense, if the Commission doesn't accept that proposition and goes on to consider whether clause 5 of EBA6 is binding for the reasons that are set out, in my submission, and we submit, in an overwhelming sense when one looks at the clause itself and the material and it is binding effect and in that sense it will find right of entry.

PN1321

Now, Commissioner, in relation to that contention I've put about whether there is an obligation to decide whether clause 5 of EBA6 is binding, and I also refer the Commission to paragraphs 4 and 7 of the second CEPU submission, I won't put it to the Commission, I've been through them in my opening and they're fair and right and they speak for themselves in that respect, Commissioner. Now, Commissioner, I want to say something in respect of the application made to vary the agreement by Australia Post.

PN1322

You've already heard what I've said on the clause and the fact that it is the intention to be a binding effect. Commissioner, I want to rely on a decision of Senior Deputy President Marsh. Commissioner, it's a decision of Senior Deputy President Marsh, PR932468, it's quite a neat little PR number there, Commissioner, 2468, but if I could take the Commission to paragraph 23 of that decision. That sets out some of the considerations which in summary form that guide the Commission in determining applications to vary agreements. It sets out the fact that the Commission must first identify the ambiguity or uncertainty. At fourth dot point down:

PN1323

Relevantly, the correct approach for identifying an ambiguity or uncertainty requires the making of an objective judgment as to whether, on the proper construction of the relevant provisions of the agreement, the wording of the provision is susceptible to more than one meaning.

PN1324

Then further down on about the fifth dot point of page 11 of that decision:

PN1325

The Commission's task is to make an objective judgment as to whether the wording of the provision is susceptible to more than one meaning. It must award contentions that are self serving.

PN1326

The second step is the process of the exercise of discretion:

PN1327

Whether or not an agreement should be varied to remove the ambiguity or uncertainty. The Commission may not appropriately use its power to rewrite the agreement or install something that was not inherent to the agreement when it was made.

PN1328

Then:

PN1329

The Commission is to have regard to the mutual intention of the parties at the time the agreement was made and the subsequent conduct of the parties. The Commission is empowered to remove an ambiguity and certainly by varying an agreement to remove it in a manner ...(reads)... the Commission is entitled to consider -

PN1330

and it sets out other circumstances there.

PN1331

Now, Commissioner, that particular matter, the relevant agreement was one which was between APESMA v Beltana High Wall, a Division 2 agreement. It was an agreement which bound APESMA and the company. Now, relevantly there, Commissioner, and I take the Commission to paragraph 110 to 112 of the decision which is headed Conclusion, it's on the last page, Commissioner.

PN1332

THE COMMISSIONER: I'm sorry, which decision are we looking at?

PN1333

MR FAROUQUE: We're looking at the Beltana decision.

PN1334

THE COMMISSIONER: Yes, a hundred and?

PN1335

MR FAROUQUE: Paragraphs 110 to 112.

PN1336

THE COMMISSIONER: Yes.

PN1337

MR FAROUQUE: Now, of course, Commissioner, if the Commission concludes that the clause contains a binding enforceable obligation upon Australia Post, then the Commission need not go to this material, but if the Commission does consider that there is some ambiguity and comes to assessing whether, in its discretion, the provision should be varied:

PN1338

I have given careful consideration to all material in this matter and examined in the decision the issues which ...(reads)... when the hearsay evidence given by the CFMEU before me is contradicted by the evidence of Beltana.

PN1339

Now, I refer to this material, Commissioner, for this purpose, that there are in a sense a number of other parties to this agreement other than the two parties where at the bar table and I did raise with my learned friend, and this was a matter which was dealt with before the Commission as to the fact that there were two other union parties to this agreement and neither of whom are at the bar table during the course of this particular proceeding, and I know my learned friend is going to clarify whether they have been served with the application. I think his instructions were that there had, but he was going to clarify that particular matter and confirm that situation, but there has been an absence of evidence from - because the provision as to any variation of the agreement must reflect the mutual intention of the parties.

PN1340

Now the mutual intention of the parties is not merely the CEPU and Australia Post. It must reflect the mutual intention of all parties to the agreement, Commissioner, and that would include the other union parties to the agreement, and I note that at least in Mr Rogan's statement he says that a representative of the CPSU was present certainly at the meeting at which clause 5 of EBA6 was discussed. So, Commissioner, we would say that if it comes to that point when the Commission considers the matter there is no - on the state of the evidence one cannot ascertain the mutual intention of all of the parties to the agreement, there being no evidence from - or indeed, any submission from any of those other two union parties to the agreement.

PN1341

So, Commissioner, we would say that really there be no basis upon which the Commission could be satisfied as to what the mutual intention of all of the parties to the agreement was, as evidenced in Australia Post in respect of the evidence of the CEPU in respect of that matter, and we would submit that it simply would be insufficient for the Commission to vary an agreement on the strength of the evidence in respect of that matter. If the Commission pleases, that concludes my submissions.

PN1342

THE COMMISSIONER: Yes, thank you. Mr O'Grady, I'm going to have to spend several minutes rearranging a commitment I had. Obviously these matters are going to take longer. I'm going to adjourn these proceedings until 3.30 and then we'll continue through to finalise the matter with your submissions and anything in reply from Mr Farouque.

PN1343

MR O'GRADY: I'm indebted to the Commission.

PN1344

THE COMMISSIONER: Yes.

<SHORT ADJOURNMENT [3.10PM]
<RESUMED [3.31PM]

PN1345

THE COMMISSIONER: Yes, Mr O'Grady?

PN1346

MR O'GRADY: Yes, thank you, Commissioner. Commissioner, can I first deal with this issue about the other parties to the agreement. It would appear that we haven't or didn't appropriately serve the other union parties when the application was made. The Commission might recall that the issue of our application under section 170MD(6) was raised first with the Commission on 22 August at a hearing in respect of the union's application of the 285G and as I understand it, I wasn't there on that day, but as I understand it, the Commission indicated that it would require any application to be filed in the Registry and wouldn't accept, if you like, the application in the directions hearing. That was apparently done on that day.

PN1347

Then the parties, well, my client apparently proceeded on the basis that there was nothing further it had to do with respect to the service of the other parties.

PN1348

THE COMMISSIONER: I'm sorry, what date was it raised?

PN1349

MR O'GRADY: 22 August, and can I say, Commissioner, that the first we've heard about any complaint about that from the CEPU was the first day of this day's hearing. What we did upon that issue being raised was immediately write to the other union parties, and that was done, as I understand it, yesterday, enclosing a copy of our application informing them that this matter was currently listed before the Commission and was being heard by the Commission and asking them to advise us as a matter of urgency whether they had anything they wanted to say in respect to that.

PN1350

A check was made during the adjournment, Commissioner, and we have heard nothing from any of them as far as we can ascertain. Now, Commissioner, I should say of course that whilst my friend put the submission very much on the basis that this was going to - sorry. My friend put this submission very much on the basis of, this isn't a matter of the technical compliance with the rules. It goes to whether or not the Commission has before it sufficient evidence to ascertain the common intention of the parties and clearly, if it was just a matter of complying with the rules, the Commission - and the relevant rule is Rule 54 sub-rule 3 of the Commission Rules - then the Commission could provide relief from that rule pursuant to Rule 6 and of course have recourse to the general power in section 110(2).

PN1351

But as I understand it, my friend says, well, the problem, the vice isn't the rules, but it's, you don't have the material available to ascertain the common intention of the parties. Now, in my submission, Commissioner, that's a submission without substance because from 22 August the CEPU has been on notice that this application is on foot and it has, since July, had the material from Mr Rogan as to what we say was said in these negotiations and subsequently of course received the statutory declaration of Ms Oldmeadow.

PN1352

The Commission will recall you gave both sides an opportunity to put in further material if they wanted to in respect of the section 170MD application. Now, I'm afraid I don't have them to hand, but I recall receiving directions from the Commission where that was to take place, and the CEPU chose to put nothing further in addition to that, other than perhaps arguably that the statement we received on the first day of hearing, exhibit F6, I think it is, Ms Herrington's second statement.

PN1353

Now, the union's material going to - I thought it was F6. F5 was the first statement and the second statement is F6, and neither in her first statement or in her second statement does Ms Herrington suggest that any of the other union parties could provide any meaningful insight into these negotiations. She doesn't say, for example, well, Fred from the CPSU was there and he will say that what my version is right, for example. So in those circumstances, Commissioner, we say that the evidentiary basis - and I want to of course come to this in due course - is well made out because you have the evidence of Mr Rogan, you have the evidence of Ms Herrington, and you've got the evidence of the conciliator who is there to make the agreement happen, Ms Oldmeadow.

PN1354

The defect is a technical one. It's one that was raised at the first day of hearing by the union and it's one that could have easily been remedied if any issue had been raised prior to that and the union have had an opportunity, if they had have seen fit to contact the other organisations and get them to put in some material either in support of their position or otherwise, and it is a case, Commissioner, where when it was brought to our attention we acted promptly. We invited a comment from them as to whether the wanted to participate and, as I say, Commissioner, we haven't heard anything. So in those circumstances, Commissioner, we would be asking the Commission to exercise its discretion under rule 6 to provide relief from the requirement in Rule 54 sub-rule (3).

PN1355

Commissioner, can I turn now to the substantive submissions and in an effort to spare your writing hand, Commissioner, I've attempted to summarise what I intend to say in a typewritten form. If I could hand up a copy of that and I have a copy for my learned friend.

PN1356

THE COMMISSIONER: Yes, thank you.

PN1357

MR O'GRADY: If that could be marked.

PN1358

THE COMMISSIONER: Yes, I am going to mark them. They'll be exhibit G9.

EXHIBIT #G9 WRITTEN SUBMISSIONS FOR RESPONDENT

PN1359

MR O'GRADY: Thank you, Commissioner. Commissioner, as is apparent from paragraph 1 this is not intended to be a substitution for the outline that we filed earlier, which is exhibit G1, but rather to supplement them and to that end I haven't repeated what appears in exhibit G1. You'll see in paragraph 2, Commissioner, that as we understand the case that's being presented against us, the following points appear to be made. Firstly it is said that a finding at clause 5 of EBA6 imposing a binding obligation is not a precondition to the assertion of a right of entry pursuant to 285B. You were addressed on that earlier this afternoon.

PN1360

Secondly, that clause 5 of EBA6 imposes an enforceable obligation upon Australia Post, the breach of which is capable of supporting a right of entry by virtue of an application of the decision in Big W and then, as a matter of construction, in particular, the comparison of the wording used in clause 5 of that employed in clause 2 of EBA6, and then secondly, the comparison of the wording used in clause 5 employed in clause 3.1(vii) of EBA5. Then in respect of the 170MD application it is said that the Commission lacks jurisdiction to determine the application as there is no ambiguity in clause 5 of EBA6 for an application directed to determining whether or not a certified agreement imposes a binding application is not an application of the type complicated by section 170MD(6).

PN1361

Commissioner, before turning to those submissions I do reiterate the point I made in opening, and I don't want to take up time, but the application made by the union in this case is seeking the Commission to determine as a general proposition that there is an invariable right of entry with respect to a suspected breach of clause 5 of EBA6 and in my respectful submission it is inappropriate for the Commission to make such a determination. The appropriate course, in my submission, is for issues with respect to right of entry under 285B when they arise to be heard and determined by the Commission on a case by case basis and to the extent that it might be said against us, well, regarding the service issue and our MD(6) application, that the other unions haven't h ad an opportunity to be heard, the nature of the application being brought by the union is so general that as a matter of procedural fairness they also would be entitled to be heard about it.

PN1362

It highlights, in my submission, the vice of the approach of the CEPU in this case. It's not an attempt to deal with the incident that occurred in February of 2005. Rather, it's asking for, in effect, a declaration of right as to what section 285B means and what clause 5 of EBA6 means, and there are mechanisms in the Act for obtaining those things and the Commission will recall that in our original outline, G1, we referred to the capacity of a union to get an interpretation of an agreement, if that's what it wants to do. Now, it hasn't chosen to do that. We would say, if one were to come in through the back door and obtain such an interpretation through this mechanism, and in my respectful submission, the Commission should reject that. You will see that in paragraph 3, Commissioner, I note that it would appear that on the evidence there is no basis for the asserted right of entry by Mr Dohrman and Mr Gorman on the relevant day.

PN1363

THE COMMISSIONER: Paragraph 4, do you say?

PN1364

MR O'GRADY: Paragraph 4, yes, Commissioner.

PN1365

THE COMMISSIONER: Yes.

PN1366

MR O'GRADY: Yes, and we do ask the Commission to have regard to the fact that what started off with Ms Doyle making some extremely serious allegations to the Commission when this matter was first commenced, has had to morph in to this general application because it would appear that the particular allegations made by Ms Doyle were just unsustainable. How else, in my submission, do we explain the fact that there's been no evidence about it, and the Commission has the evidence, of course, of Mr Bass and in my submission that evidence should be accepted.

PN1367

Can I turn, Commissioner, to the technical argument being run by my learned friend that, well, it doesn't matter whether clause 5 of EBA6 imposes a binding obligation. It's still open for a permit holder to assert a right of entry in respect of it. My initial submission, Commissioner, is that when you say it, quite a startling proposition that in the circumstance where there is no obligation as a matter of fact imposed upon an employer, a permit holder who suspects that there might be such an obligation and who suspects that it might have been breached, is entitled to assert a right of entry and assert all of the powers that section 285B confers. It's not just a matter of course of coming on to the premises, Commissioner.

PN1368

A permit holder is entitled to demand wages, books and interview people and so on and so forth. In my submission it would be quite a remarkable piece of legislation for Parliament to have conferred that right upon a permit holder against somebody who is not bound by a relevant award or certified agreement. The strength of that submission is reinforced, Commissioner, when one has regards to the history of section 285B and, as my friend has said in his submissions, there is a difference between the way in which the Act is currently formulated and the way in which it was formulated when the decisions of Advertising Newspapers and Curran's case which are referred to in paragraph 14 and following of our first submission, exhibit G1, was decided.

PN1369

Before going to the legislation can I just ask the Commission to have regard to what appears at paragraph 14 and following where I set out quite extensively what his Honour, Moore J, said in The Advertiser Newspaper case, and acknowledging that that was under the previous Act, his Honour says, and this is in paragraph 15 on page 5 of the submission:

PN1370

It is necessary to consider the purpose for which entry was sought. The power section 286(1) confers are ...(reads)... Unless the power is used for the purpose for which it is conferred, there can be no breach of section 306.

PN1371

Now, section 285B in my submission is also a purposive power because section 285B(2) is in terms of:

PN1372

For the purpose of investigating the suspected breach.

PN1373

So once again one has to have regard to the purpose. Now, the question that was being considered in The Advertiser Newspaper case is, is a subjective purpose good enough, is it good enough that you, the permit holder, or the person asserting the right of entry think there might be a breach, or do you have to have an objective and justifiable purpose, and what was decided in The Advertiser Newspaper case, picking up what his Honour, Gray J said in the Curran v Thomas Borthwicks and Sons case, is that the purpose required must be objective and this appears at the foot of paragraph 15 and on to the top of page 6.

PN1374

That is:

PN1375

A particular exercise of a right to enter, inspect or interview can be said to be related with sufficient proximity to the object of ensuring observance of an award.

PN1376

So it wasn't good enough that the individual concerned might have wanted to go in there and have a look. There had to be this objective purpose and his Honour notes that at the foot of the quote that's indented there, Commissioner, that:

PN1377

It is unlikely that Parliament intended the section to be construed in that manner

PN1378

Sorry, I'll stop again. If you go back after the underlying passage and it says:

PN1379

If that were not the case and honestly felt the wholly mistaken belief by an officer of an organisation that he or she was pursuing a course which would result in the observance of an award would be decisive of the right to enter, inspect or interview.

PN1380

Now that's the test that Mr Farouque urges the Commission to adopt, that as long as honest, they can be completely wrong, and what his Honour, Gray J says, look, it's unlikely that Parliament intended a section to be construed in that manner:

PN1381

It's ultimate purpose is to promote the observance of awards, giving the right of inspection of interview being only a means to that end.

PN1382

Then in paragraph 16 on page 6 I deal with the way in which - well, there's a further - the way in which his Honour, Moore J continues to deal with the matter, and his Honour, you will see throughout that quote, forms the view that absent the objectively ascertainable purpose, there was no valid right of entry.

PN1383

In my submission it's of note that my friend hasn't taken you to any decision of the Commission which says that that approach is wrong. Rather, it would appear, as I'll come to in a moment, that that approach has been picked up and not disagreed with under a number of decisions of the Commission which have had to consider the current provisions. Before coming to those cases, Commissioner, can I hand up to the Commission a copy of the old section 286 and also a copy of the explanatory memoranda that accompanied the enactment of 285B, and that's attached, Commissioner.

PN1384

I don't know whether you wish to mark these, Commissioner. They're just legislative instruments.

PN1385

THE COMMISSIONER: No, I don't think so, thank you.

PN1386

MR O'GRADY: But you'll section 286 appears, and it says:

PN1387

An officer or an organisation authorised in writing by the Secretary or a branch of the organisation to act under this subsection may, for the purpose of observing the observance of an award or an order of the Commission binding obligation -

PN1388

and then the right of entry is spelt out, and the legislative history has to be, I suppose, taken in two chunks, Commissioner. First, you must have regard to the explanatory memoranda and then the supplementary explanatory memoranda, because as the Commission will recall, there was a considerable negotiation with the Democrats in the Senate that led to the passing of this Act and the form of the right of entry provisions changed quite substantially in that. The initial proposal, and this appears at paragraph 15.67 of the explanatory memoranda, and you will see this is at the foot of page 153 of the EM, it talks about the repeal of section 286 and if you turn then to page 154 in paragraph 15.68, Parliament there set out what were to be the limits and you will see it was going to be very limited.

PN1389

You had to, in effect, have a written invitation by a person who was a member of the organisation and carrying on work affected by the instrument. The organisation had to be bound by the instrument. The invitation had to specify the premises to which it related. The invitation must be one to conduct inspection for interviews, and then the officer for the organisation must be authorised to do so by the Secretary of the branch and there must be at least 24 hours' notice, and that was what you had to do to be able to assert a right of entry on what is now the equivalent of sectio 285B, and it was clearly a significant attempt to curtail the broader power that had been there in section 286.

PN1390

The supplementary explanatory memorandum shows that the government, in the negotiations with the Democrats, moved from that position and you'll see at page 77 it says:

PN1391

The proposed section 285B ...(reads)... specify what the permit holder may do after entering the premises.

PN1392

In my submission, Commissioner, the effect of both the prior Act and the explanatory memorandums that are associated with the formation of the current Act is that section 285B was designed to be actually narrower than the old section 286. The government wanted to make it a lot narrower and the Democrats, in the negotiations with the government, led to a position where it was narrower but not as narrow as the government had initially wanted it to be.

PN1393

There is nothing in that material in my submission that suggests that Parliament intended to give a permit holder carte blanchee to go into premises and assert the rights conferred by section 285B irrespective of whether there was in fact a binding award or agreement governing the premises. See, if Mr Farouque's submission is correct, then an employer could be award free and without any certified agreement, and if a member of an organisation turned up and said I want to go through your books, because I suspect you might be in breach of the Act, or you might be in breach of an award and the employer said, no, I'm not letting you in because I'm not bound by any award, he would be in breach of the provisions of the Act, because, according to Mr Farouque, all it takes is a suspicion on behalf of the permit holder irrespective of whether there's any underpinning award or certified agreement upon which you could properly base that suspicion.

PN1394

In my submission it just can't be right, and it's a position that was not adopted by his Honour, SDP Polites, in the two decisions concerning BHP Iron Ore v William Warren Tracey and Another, and if I could hand those decisions up to the Commission. They're PR905041 and PR917378, and if I could take you to the 905041 decision which was 7 June 2001, you will note, Commissioner, at paragraph 5, his Honour says:

PN1395

It is to be noted from this summary that section 285B only allows a permit holder to enter premises for purposes of investigating suspected breaches of the Act or award. ...(reads)... entry under this permit is confined to he purpose of investigating a breach of the Act.

PN1396

Now, that goes against what Mr Farouque asked you adopt because his Honour seems to be saying, well, it's a precondition for an exercise under 285B in respect of a breach of an award that there actually be an award binding, and absent that, then you can't have the proper purpose.

PN1397

His Honour, in the second of the Tracey decisions, reaffirmed that view in paragraph 33, Commissioner, where he says, in the second sentence of paragraph 33:

PN1398

As I note in my previous decision in relation to Mr Tracey 285B of the Act only allows a permit holder to enter the premises for the purpose of ...(reads)... the relevant actions of BHP BIO in Western Australia.

PN1399

And his Honour then goes on to deal with the matter as if that meant that there could be no entry pursuant to 285B in order to investigate a suspected breach of an award.

PN1400

The decisions that I've taken you to, Commissioner, were addressed and set out in more detail in the decision of Commissioner Grainger, which is IES Australia Pty Ltd v CEPU, but it was the Electrical Division in that case, Commissioner, which is PR934167, and, Commissioner, if you turn through to paragraph 35 you will see the Commissioner refers to the Australian Federation of Air Pilots decision of Gray J where his Honour makes it very clear that the purpose must be an objective one, and then in paragraph 36 h e refers to the decision of Moore J in The Advertiser Newspaper case, as I've taken the Commission to, and once again, to the effect that the purpose must be an objective one, and then the Commissioner sets out his conclusions in paragraph 42 of the decision and he says, the conclusions he reaches with respect to this area of the law are:

PN1401

It is not a condition precedent in respect of breaches must in all cases be stated to the employer. ...(reads)... for the purpose for which the statutory power is conferred.

PN1402

Then in 4:

PN1403

The purpose contemplated by the inspection is an objective one and should allow the person to be inspected to make a rational assessment as to whether the asserted right could, if exercised, lead toward the insurance or observance of an award, order or agreement.

PN1404

The Commissioner there refers to the Air Pilots case. He goes on:

PN1405

Where a real doubt is raised by a person to inspect about the purpose of the asserted right to enter or inspect them, that ...(reads)... may refuse permission of inspection.

PN1406

Then he continues:

PN1407

While something less than a reasonable suspicion may be required by a permit holder there must be actually a suspicion on behalf of the permit holder held in good faith.

PN1408

Now, Commissioner, we don't differ from the proposition that the permit holder must have a suspicion. That's clearly right, otherwise it would be an abuse of the power to enter under 285B and that is what the Forest Industry Association case says and I'll come to that in a moment.

PN1409

Clearly if there is no suspicion, it amounts to the use of the powers under 285B for an ulterior purpose and that, we would say, is a very serious matter. But that doesn't mean that a suspicion is enough. What we say is that there must, firstly, be an objectively ascertainable purpose and in this case, that means there must be an obligation, and secondly, there must be a genuinely held suspicion. I set that out to an extent in paragraphs 9 and 10, Commissioner, I think I've addressed those things. I've noted in paragraph 11 that a contrary construction would lead to perverse outcomes and I've detailed what they might be.

PN1410

Can I come to the Victorian Association of Forest Industries case because as was adverted to by Mr Farouque, this was a case where the question was, was there a suspicion? There was no issue, Commissioner, in this case, about whether there was an obligation. It wasn't the case like the one before you where we're saying there is no enforceable obligation, or a case like the one before SDP Polites where there was no award binding on the employer. It was a case where, such was the nature of the application for inspection of documents, that you had to wonder, well, what's the union getting at here? Is it really just a fishing expedition to see whether it can cause some employers some grief? And you will see that the Full Bench was sufficiently concerned about the way in which the request had been made, that it ultimately held that - well, it put in place a process to ascertain whether there was legitimate use of the right of entry powers.

PN1411

Can I ask the Commission to have regard to what appeared at paragraph 27 of the decision and you'll see I've set this out in paragraph 12 of the final submission, outline of final submissions, that right of entry is, according to the Full Bench, is akin to acting in the way of a court officer. That is, a public official and that accordingly the principles of administrative law governing the exercise of a statutory power by public officials or instrumentalities are applicable in relation to the exercise of a power conferred by section 285B.

PN1412

Now, Commissioner, if that be right then clearly Mr Farouque's test of, all you've got to have is an honestly held suspicion, must be rejected because applying those principles it would not be enough for a public official to assert compulsive powers on a member of the community without the appropriate statutory foundation. So in my submission, Commissioner, the effect of this decision is not to in any way depart from the well known principles in Curran's case and the Air Pilots case and The Advertiser Newspaper case and you'll see, Commissioner, there's no reference to those decisions in this case and given the fact that they are, if you like, generally seen as the touchstone on the interpretation of the previous provisions if the Full Bench intended to embark upon a marked departure from that approach, one would have thought that there would be some consideration of those cases and why they are not apposite to the application of section 285B, but they don't mention that at all.

PN1413

In my respectful submission the focus of this case is, assuming you've got an obligation, that’s not enough. You've still got to have a genuinely held suspicion and because of the way in which the CFMEU behaved on this occasion there were doubts about that, and that's what the case goes to in my submission. Commissioner, can I turn now to the question of whether or not clause 5 of EBA6 does impose an obligation, a breach of which is capable of supporting the assertion of a right of entry pursuant to section 285B, and can I start, Commissioner, with the Big W decision. I set out in some detail, Commissioner, ion exhibit G1 why we say the Big W decision is distinguishable from the current case and the current provision, and this appears commencing at paragraph 20 on page 11 through to paragraph 25 on page 13 of exhibit G1, and I don't intend to read that to the Commission unless the Commission requires me to or wishes me to.

PN1414

But there is in my submission a very significant difference between the language used in the clause that was considered by the Full Bench in the Big W case and the language used in clause 5 and, Commissioner, you're familiar with what clause 5 provides. You'll see that from paragraph 10 of the Big W decision that it was a far more extensive provision. I think my friend handed up a copy of the Big W case.

PN1415

THE COMMISSIONER: Yes. Just let me locate it, please.

PN1416

MR O'GRADY: I have another copy if it would assist the Commission.

PN1417

THE COMMISSIONER: No, I'm fine, thank you.

PN1418

MR O'GRADY: Thank you, Commissioner. You will see, Commissioner, that the clause there didn't stop, if you like, in subparagraph (a) which is what we would say would bring it at least somewhat closer to clause 5 of EBA6. Rather, it went on to talk about, well, what the objectives of the commitment there referred to were. There were then procedures for meetings to take place in subparagraph (c). There was commitment to training and paid leave to attend training, which is set out in subparagraph (d). There was a requirement to establish a consultative process and where there were any proposed changes to equipment, substance or work practices, which may reasonably be expected to affect health or safety, Big W will consult.

PN1419

Once again, another requirement to consult and the focus of the consultation was identified, namely, to identify and resolve potential health and safety problems. In my submission that's a markedly different provision to clause 5 of EBA6. Further, Commissioner, the Commission, when one has regard to the analysis of the agreement as a whole, which is set out in exhibit G1 and paragraph 13 in particular, you will see, Commissioner, that there is - and I don't purport to say this is an exact science, Commissioner, because as my friend points out in his submissions, these agreements are sometimes drafted with variation of terms from clause to clause and I don't ask the Commission to construe it as if it was, if you like, a finely honed piece of legislation.

PN1420

But there is, in my submission, a difference between the clauses where there is clearly intended to impose an obligation, and I have referred to those in paragraph 13, whether the language is what you will do, what you won't do, what you can do, what you must not do and what shall happen, to the clauses where the parties are committed.

PN1421

THE COMMISSIONER: Which parts do you - - -

PN1422

MR O'GRADY: Page 9 of the first submission in G1. I apologise, Commissioner. Mr Gates has a lot to answer for.

PN1423

THE COMMISSIONER: Yes.

PN1424

MR O'GRADY: But you'll see, I've set the clauses out in paragraph 13, Commissioner, where we say there is clear and unequivocal language, those clauses were intended to impose an obligation. Now, it doesn't appear from my reading of the Big W decision that the same point was taken or made or capable of being made out with respect to the clause that was there under consideration, and I'm not saying, Commissioner, that invariably the word committed must mean that it was not intended to impose an obligation. These matters must turn on the context in which they appear in the clause and in the agreement as a whole.

PN1425

But I do submit that when you look at the language used in clause 5 and refer it to the clauses I referred to in clause 13, you can come to the conclusion that it was not intended to impose an enforceable obligation through clause 5, and that's quite distinct from - and that's not in any way asserting that the decision in the Big W case wasn't correctly decided on the fact before it. I also make the point, Commissioner, in exhibit G1, that the Commission in the Big W case was concerned with a different provision of the Act, namely section 170LW.

PN1426

Now, for reasons that I'll come to in a moment, Commissioner, that problem doesn't arise here because the dispute resolution clause, which I need to take the Commission to in EBA6 does enable the Commission to determine occupational disputes in respect of Occupational Health & Safety even if our contention is accepted with respect to clause 5 and I want to come to that in some detail in a moment, but that is a very big distinction, we would say, between the two agreements because in the Big W case, Big W were saying, it doesn’t matter. We've promised you all these things, but you can't take us to the Commission under the dispute resolution procedure and get a binding determination of the issue because it's only aspirational and one only has to enunciate the proposition to realise that it's not an attractive proposition to put.

PN1427

But as I say, that's not the case here and I need to come to that in due course. Before I do that, Commissioner, can I also note that another distinguishing factor between this case and the Big W case is that here you have extensive evidence about the negotiations surrounding the insertion of clause 5 of EBA6 and the Commission has seen the witnesses in the witness box and I don't purport to say who you should believe and who you shouldn't believe, you will obviously make your own mind up about that, I would ask the Commission to have regard particularly to the evidence of Ms Oldmeadow.

PN1428

She was there. She's not an Australia Post employee, although she was quite up front about admitting that she'd been engaged through Australia Post, but she was there with a view to brokering the deal. She's a person of considerable industrial experience and she was rock solid as to what she understood was the basis upon which this clause was going in, and that was, it was not to impose a fresh obligation. It was not to incorporate the 1992 agreement and it was not to incorporate the Commonwealth Occ Health & Safety Act, and she based that on what Mr Rogan told her before the relevant meeting, on what she heard Mr Rogan say to Ms Herrington and what Ms Herrington and the other union officials did in response.

PN1429

Now, this is not a case, Commissioner, where we're saying we want you to rely upon what was going on inside Mr Rogan's head when this agreement was reached, because that's just his subjective intention and I need to come to Mosharan's case in a moment and I'll do that. But when the parties express their views to each other and when an objective bystander looking at all of that comes to a conclusion about what has been agreed, in my submission the Commissioner can have regard to that common understanding, to that statement. Otherwise it would be open for the party to behave in a disingenuous way in negotiations and then turn around and say, well, nah, nah, nah, nah, nah, you agreed to it.

PN1430

True it is I said I wasn't going to impose an obligation, but tough luck, and that can't be right, and it's not right on the authorities. I've referred to Ms Oldmeadow's evidence in brief in paragraph 15. It was not intended to change and you'll have noticed that in its submissions the CEPU has made it very clear that from a considered point of view, putting to one side Ms Doyle's own view of things, but from a considered viewpoint, clause 3.1(vii) was evidently aspirational in nature.

PN1431

Now, when that's the position of the union and when words along the lines that Ms Oldmeadow says were said are said, and in my submission the Commission should be very reluctant to draw the conclusion that the parties should be taken to it intended to move from that situation. Commissioner, can I - I apologise for this, but rather than moving on to paragraph 16, can I deal with the dispute resolution procedure issue now because in my submission it's a matter that could legitimately be a matter of concern to the Commission if it was of the view that Australia Post was seeking through this application to prevent the union ventilating Occupational Health & Safety issues in the Commission.

PN1432

Can I say, Commissioner, that in my submission, to the extent that there is a limitation on the union venting Occupational Health & Safety issues in this Commission, it flows from clause 5 of EBA6 because, as I put to you in opening, Commissioner, clause 5 of EBA6 on one view of it commits the union to only have recourse to the 1992 agreement and the Commonwealth legislation, and if that be right, because you will recall, Commissioner, in opening I said it applies to both of the parties. So it's not confined to Australia Post, and it sets out what they must do. They must pursue OH&S objectives by abiding by, and then it refers to OH&S legislation and the 1992 agreement, and on one view, they can't achieve those objectives by any other means, as a matter of literal construction.

PN1433

I don't want to take up too much time with that. It's spelt out in more detail in exhibit G1, Commissioner, but can I come back to the dispute resolution procedure and you will see clause 12.1, and this is exhibit - I think it's PR1, Commissioner. PR1, 12.1, deals with mutual responsibility, to work cooperatively, et cetera, and then 12.2 deals with a dispute resolution procedure.

PN1434

THE COMMISSIONER: I'm sorry, just let me find that. PR1?

PN1435

MR O'GRADY: Sorry, PR1, Commissioner, yes.

PN1436

THE COMMISSIONER: Yes.

PN1437

MR O'GRADY: And then - - -

PN1438

THE COMMISSIONER: Clause?

PN1439

MR O'GRADY: Clause 12, it's about - just over halfway through the document, as I understand it, Commissioner. I apologise, there's no page numbering there.

PN1440

THE COMMISSIONER: Yes.

PN1441

MR O'GRADY: But you will see there's a general statement of principle in paragraph 12.1 and in 12.2 there's an escalation procedure that's set out and 12.3 sets out that procedure in more detail. At 12.3(d) refers to the matter being referred to the Commission for conciliation if it hasn't been resolved after steps (a) to (c) have been gone through, and there's also involvement for escalation within the union from state level to national level is the matter is referred to the Commission, and then (e) provides:

PN1442

If the conciliation does not resolve the dispute -

PN1443

and this is of importance, Commissioner, in my submission

PN1444

whether the dispute is about the application of the agreement or any other industrial dispute the Commission may determine the matter by arbitration.

PN1445

So if you were to find, Commissioner, that clause 5 of EBA6 does not impose an obligation, it would nonetheless be open for the union to come to the Commission and seek to ventilate that issue through arbitration. Now, that of course immediately raises the question of jurisdiction of the Commission given the terms of section 170LW, you know, and the confining of that provision to disputes arising under an agreement. The parties have addressed that, Commissioner, because you will see in (f) it provides:

PN1446

In circumstances where the Commission is unable, for whatever reason, to arbitrate a dispute in accordance ...(reads)... will be conducted by way of evidence and formal submissions leading to a decision and order.

PN1447

And then it provides:

PN1448

The parties shall comply with the Commission's decision and/or order arising under subclauses 12.3(f)(i) or (ii).

PN1449

So for that reason also, Commissioner, we say that this is a very different case from the Big W case because if the Full Bench in the Big W case had to consider this agreement, it wouldn't have even got to the point of whether or not the Occupational Health & Safety clause imposed obligations because it wouldn't have mattered because the Commission would be able to achieve the same objectives through the binding recommendation provision that was determined by the parties and placed within the certified agreement.

PN1450

Commissioner, there's another decision which I don't want to take time up with, but I think I should advise you of, as much as anything, out of courtesy to the Commission. It's a decision that goes against me, although for the reasons that I have expressed with the Big W case, in my submission, it is clearly distinguishable. It's a decision of a Full Bench of Vice President Ross, SDP Acton and Commissioner Mansfield in the ASU v ATO, and it's PR961315. It's a case once again where there was an issue being determined under section 170LW and once again, there was the issue about whether or not the clause which used, in this case, "committed to ensuring", and I'm sorry, Commissioner, I don't have copies of it. I apologise. If I can refer the Commission to the relevant paragraphs.

PN1451

THE COMMISSIONER: Yes.

PN1452

MR O'GRADY: You will see paragraph 7 of the decision, it was clause 118 of the ATO Agreement which referred to the Code of Conduct and it said:

PN1453

The ATO is committed to ensuring that all employees are aware of and comply with the standards of conduct as detailed in the APS Code of Conduct in the Public Service Act.

PN1454

And the ATO Procedure, Managing, the ATO was probably applied and it went on to provide:

PN1455

The ATO will monitor the application of the procedure, in particular, (a) a formal Code of Conduct action is taken where appropriate, in particular that action is taken ...(reads)... will be provided by the applicant.

PN1456

Now, the point was taken by the ATO that the reference in that clause to the Code of Conduct did not impose substantive and discrete obligations different from those that appeared under the Public Service Act.

PN1457

Then in paragraph 14 of the decision you will see that that was where it was argued, that clause 118 did not provide an obligation distinct from or additional to the obligation created by the Misconduct Procedures and the ATOs obligation to comply with Misconduct Procedures arising out of section 15 of the Act, and the Full Bench rejected that argument relying and referring to the Big W decision in paragraph 19 and 20 and in particular, Commissioner, they say at paragraph 57 that:

PN1458

The industrial context in which an agreement is negotiated is relevant to determining the mutual intention of the parties to the agreement.

PN1459

So they had regard to that and there the evidence would appear to have been quite different to the evidence that you've heard, Commissioner.

PN1460

Then in paragraph 59 they refer to the legislative context, and in paragraph 62 they say:

PN1461

It seems to us that in the context of this matter the expression 'committed to ensuring -

PN1462

and that's a different language of course to what you have in clause 5:

PN1463

evinces an intention to create an obligation enforceable as a clause of the ATO Agreement and properly applied Misconduct Procedures.

PN1464

Accordingly, they held that the Commission had jurisdiction under section 170LW.

PN1465

Now, Commissioner, in my submission the points that I've made with respect to the Big W case apply equally to the reason in that case. It's a different clause. It was negotiated in different circumstances and fundamentally it was a clause where there wasn't recourse to the dispute resolution clause of the nature that appears in the current agreement where, assuming that a matter could properly be brought within that agreement, given the breadth of its definition, the matter can be ventilated in the Commission if it's got an Occupational Health & Safety dimension, and you don't need clause 5 to do that, Commissioner.

PN1466

Commissioner, there's another reason for favouring the construction that I put forward and I've detailed this in paragraph 16 of the final submissions, and that is if clause 5 is more than aspirational, there are very real questions about whether the agreement is capable of having properly been certified because, as the Commission is aware, if an agreement either involves or contains substantive - and that's where the point of distinction is, we say it's not a substantive provision because it's an aspirational provision - but if an agreement contains a substantive and discrete matter that doesn't pertain to the relationship, Electrolux, as authority for the proposition, it can't be certified.

PN1467

Now, the OH&S Commonwealth Employment Act isn't confined to the relationship that Australia Post has with its employees. It extends to general duties Australia Post has with respect of Occupational Health & Safety to persons who aren't necessarily its employees. It extends to the relationship and obligations that Australia Post has with the ComCare inspectors, for example. It also deals with the relationship that Australia Post has with the various unions that represent people in its premises.

PN1468

Now, in my submission, those are matters that potentially, and I don't need to put it any higher for the purposes of this case, that potentially could render the agreement in breach of the principles as outlined by the High Court in Electrolux, if the construction being urged upon the Commission by the union were accepted. If the construction that we urge upon the Commission is accepted, there's no substantive provision. If there's no substantive provision, because it's aspirational, there's no Electrolux problem. The Commission will recall one of the factors that the Full Bench in the ATO case had regard to was a legislative context in which the agreement was made and in my submission part of that context is that an agreement will only be valid if it's confined to matters that pertain.

PN1469

The parties should have been taken to have confined all of the substantive and discrete matters to matters that pertain, and if there's a risk that the ComCare legislation might not so pertain, then any attempt to incorporate that by reference, as my learned friend seeks to do, should be avoided if at all possible because it's in nobody's interests to have an agreement certified that then falls over. The other submission I've set out in subparagraph (b) of section 16 concerns the fact that clause 5 isn't confined to the OH&S Act in the form that it was in when the agreement was certified. Nor is it confined to the terms of the Australia Post OH&S Safety Agreement 1992.

PN1470

The clause refers to all relevant health & safety legislation and legislation evolves, as the Commission is aware. The clause also refers to, or any successor to the 1992 agreement. Now, Commissioner, these issues were recently discussed by his Honour, Merkel J in a case concerning the Finance Sector Union v The Commonwealth Bank, if I can hand up a copy of that decision to the Commission. It's a big decision but I don't have to take you to very much of it at all, Commissioner.

PN1471

Commissioner, the background of this case was the Commonwealth Bank had encouraged a number of its employees to move across to a related entity called Comsec. Comsec had its own certified agreement. A provision in the Comsec agreement was clause 12 and clause 12 provided that if an individual employee of Comsec, and Comsec agreed, then they could be engaged on an individual employment agreement which would have an effect as if it was a certified agreement.

PN1472

If you like, it was a Clayton's AWA to try and use the vernacular, or the AWA that you're having when you're not having an AWA, but it would have the same effect as an AWA. The FSU brought an application alleging a breach of 298K, that the Commonwealth Bank had acted to the detriment of a number of its employees by reason of their benefit to the entitlement of an industrial instrument and one of the arguments run by the FSU was the Comsec Agreement, the Comsec certified agreement wasn't a valid certified agreement, and when you move the people across from the Commonwealth Bank to Comsec, they suffered a detriment because they no longer had the benefit of an enforceable certified agreement.

PN1473

The argument, Commissioner, was that clause 12 that talked about these Clayton AWAs rendered the whole agreement invalid because it's a requirement for certification that the Commission has before it the terms of the agreement in its entirety and the terms of all documents that form part of it and that can be enforced, as if they were part of the agreement. His Honour, Merkel J accepted that argument, subject to the caveat of what he described as facilitative provisions, and that conclusion, Commissioner, is expressed in paragraph 76, but perhaps if I can go back a couple of paragraphs to 74, Commissioner, you'll see in 74:

PN1474

Prior to a valid certification of an agreement the Commission must be satisfied that the terms of the agreement ...(reads)... disadvantage test. (e) The agreement contains a dispute resolution procedure.

PN1475

Then he goes on paragraph 75:

PN1476

Further, any variation of the agreement must by order be approved by the AIRC which must refuse to approve it in certain circumstances.

PN1477

Now, if Mr Farouque is right, it would be open for, either the Commonwealth by amending the OH&S Commonwealth Employment Act, or Australia Post and the relevant unions to vary the effect of the certified agreement, because if the Commonwealth amends the OH&S Act, then the effect of the certified agreement has been varied. If the parties come up with a successor to the 1992 agreement they are, through that mechanism, varying the effect of the certified agreement.

PN1478

Now, those problems don't arise, Commissioner, unless you accept the union's position which is a clause 5, imposes enforceable obligations. On our construction it's aspirational, you don't change anything that's got effect as a certified agreement if either of those instruments change. You will see in paragraph 76 of the FSU decision, his Honour says:

PN1479

Subject to a possible exception in respect of facilitative provisions -

PN1480

to which I will later refer -

PN1481

the cumulative effect of the above provision is such that it is implicit, if not explicit requirement of the statutory...(reads)... otherwise the AIRC cannot satisfy itself of the requirements in respect of the matters set out in LELI -

PN1482

et cetera -

PN1483

Thus those terms must be both in existence and considered by the AIRC prior to its certifying the agreement ...(reads)... binding on the employer and the employees as if it were an agreement certified under the Act.

PN1484

Now, Commissioner, coming back to the proposition that the parties should have been presumed under the legislative scheme to have made an agreement that was valid and enforceable. In my submission, this is another reason why the construction urged on you by the union should be rejected, and these are two independent, if you like, submissions that I've tried to summarise in paragraph 16, Commissioner. See paragraph 17, I make the same point that these problems don't arise if the Australia Post construction is accepted and I make the same point in paragraph 18 and I apologise for the typo with respect to the union's acronym.

PN1485

THE COMMISSIONER: Yes, just a moment. You're on paragraph?

PN1486

MR O'GRADY: Sorry, 18. It should be CEPU, not CPSU, Commissioner.

PN1487

THE COMMISSIONER: Thank you. Just excuse me for a moment, please.

PN1488

MR O'GRADY: Yes, Commissioner.

PN1489

THE COMMISSIONER: Yes, thank you.

PN1490

MR O'GRADY: Commissioner, can I say that when one has regards to the transcript that you referred us to this morning, it is patently clear that the parties were very anxious to avoid Electrolux problems with respect to the certification of this agreement and the various submissions were all there to designed to address and ameliorate any concerns that the Vice President might have had with respect of various clauses. Now, they didn't say anything of substance with respect to clause 5 and in my submission the Commission can proceed on the basis they didn't do so because they didn't see it as imposing obligations because it's only if it's imposing obligations that you need to address it.

PN1491

Where there were clauses that sought to impose obligations, additional obligations, the parties would appear to have attempted to take them out of the agreement and deal with them in another way and in that regard I've referred you this morning to the Guidelines for Union Delegates and you'll have seen that the letter that's exhibited G6 form Mr Barker to Mr Borg talks about trying to come up with a way of enforcing this outside of the certified agreement. The last sentence, Commissioner, says - well, the last paragraph is in these terms:

PN1492

It is further agreed that the parties will jointly explore a legally enforceable mechanism for such guidelines ...(reads)... agreement or deed or any other mechanism under the auspices of the AIRC should this be legally available.

PN1493

Commissioner, you will recall from the transcript that the learned Vice President was concerned about 3.5 and it had to have it explained to him, saying, well, it really doesn't do very much at all, so you don't need to worry about it. I know I'm paraphrasing, Commissioner, but he had to have his concerns put to bed so that the agreement could be certified.

PN1494

So in my submission that transcript, when coupled with the statutory scheme and, if you like, just a common sense position, that the parties should not be seen as having tended to do something that was going to bring the whole agreement to falling down, strongly tends against the submissions being put by the union in this case. Commissioner, I have dealt with, I think, what I deal with in paragraph 19 of the outline of final submissions which is the dispute resolution procedure which, as I say, if there is a genuine dispute falling within that procedure, it doesn't have to be one arising under the agreement for the parties to have recourse to arbitration.

PN1495

Can I deal then, Commissioner, with section 170MD(6) and I don't need to take up too much time with this, and I apologise for the time that it's taken, Commissioner.

PN1496

THE COMMISSIONER: These are very important matters.

PN1497

MR O'GRADY: I'm indebted to the Commission for sitting on. Can I start, Commissioner, with the decision of SDP Lacy in the Esso Australia case, and yes, if I can hand up three decisions at the same time, also the Railways Mill Grade Award and the Telstra decision, and I should say perhaps at the outset, Commissioner, that in my submission these decisions don't mark any significant departure from the principles that were summarised in the Beltana Highway Mining case. Indeed, I think it's in the Telstra case, many of these were summarised in similar terms.

PN1498

One thing I should say is that my learned friend skipped a paragraph when he read you from paragraph 23 of the Beltana case and it's an important paragraph. This is paragraph 23 of the Beltana case, page 11, and he didn't read out to you the third bullet point from the bottom. He read the surrounding ones, but not that one, and in my submission that's a very important paragraph in the context of this case and it's a point that was made forcefully by SDP Lacy in the Esso case. If I can take you briefly to the Esso case, Commissioner.

PN1499

In paragraph 9 his Honour deals with the jurisdictional prerequisites to the exercise of jurisdiction on the MD(6) and you'll see at the foot of paragraph 9 his Honour makes precisely the same point that appears in the subparagraph of Beltana that I took you to a moment ago, and then in paragraph 10 he says:

PN1500

In determining whether a provision is ambiguous or uncertain the Commission is required to take an objective ...(reads)... and the interaction of the provisions in determining whether any ambiguity exists.

PN1501

His Honour goes on to say:

PN1502

Whilst not determinative of the existence of ambiguity or uncertainty, the Commission can and should have regard to the existence of competing contentions that have been raised by the parties of the agreement in relation to the operation of the clause.

PN1503

Now, I should say, of course, Commissioner, that our position is clause 5 is clearly aspirational and if you accept that you don't have to worry about the MD(6) application and particularly perhaps in the light of the authorities I've taken you to with respect to the validity of the agreement. You might be satisfied on that basis alone, but if you were in doubt, we will be saying that matters should be clarified through a variation of the type that were brought under MD(6).

PN1504

In paragraph 30 - - -

PN1505

THE COMMISSIONER: In relation to that, Mr O'Grady, is it your submission, and perhaps my brain is not working as well at this time, is it your submission that if I find that clause 5 is aspirational, then in fact I don't proceed with the section 170MD application?

PN1506

MR O'GRADY: That's our position.

PN1507

THE COMMISSIONER: Right, thank you. Can I just ask, and I should have asked this earlier, did Mr Farouque receive the amended application pursuant to section 170MD? He did, good.

PN1508

MR O'GRADY: Yes, thank you. Commissioner, I should just clarify my instructions on that. That was my understanding in response to your question, but I should just obtain instructions on that and perhaps, given the nature of the bureaucracy with which I'm engaged, would it be possible, Commissioner, for us to notify your associate of our submission with respect, say, by midday tomorrow? This is just on the question of - sorry, Commissioner.

PN1509

THE COMMISSIONER: Yes.

PN1510

MR O'GRADY: Thank you, Commissioner. Commissioner, I anticipate I'll have instructions on that issue by the time the Commission rises this afternoon, if the Commission is happy with that course.

PN1511

THE COMMISSIONER: Yes, thank you.

PN1512

MR O'GRADY: Commissioner, dealing with the MD(6) application as briefly as I can, you'll see there in paragraph 30 his Honour, SDP Lacy refers to the discretion that's proposed on the Commission and you will see in paragraph 31 he says there's two key criteria in respect of the discretion, namely the intention of the parties with respect to the offending provisions and, Commissioner, we rely very much on the evidence that I've already adverted to in the hearing but in particular the evidence of Mr Rogan and Ms Oldmeadow with respect to that. And secondly, the merits and/or reasonableness of their competing instructions.

PN1513

Now, with respect to that issue, Commissioner, we rely to a significant extent on the evidence of Ms Doyle because in my respectful submission in the light of her evidence the Commission could have no satisfaction that if the construction being urged on the Commission by the union were accepted, that the interest of the parties would be advanced or that a workable and sensible approach to the assertion of right of entry would be applied by the union because it would appear that if my friend's contention is right and that all that is required is a suspicion by a permit holder, that some part of either the OH&S Act - and it's not just the Commonwealth Act.

PN1514

We've been referring to that, but it's any relevant OH&S legislation, and you will recall Ms Doyle also referred to the regulations and the codes of practice and/or the 1992 agreement have been breached, then a right of entry and all of the associated powers with respect the interviewing of persons and the demanding of records would be invoked, and in this context, Commissioner, the Commonwealth OH&S Act imposes very broad obligations. They are obligations on an employer taking all reasonably practicable steps. It would in effect, in my submission, Commissioner, empower a permit holder to almost have carte blanche with respect to right of entry because if a permit holder formed a suspicion that there was some practicable step that could be taken with respect of any aspect, any aspect of Australia Post operations, they would be entitled to a right of entry under 285B, they would be entitled to interview people under that provision, they would be entitled to demand documents under that provision.

PN1515

There would be none of the limits, none of the structures that are currently in place in the 1992 agreement to channel that energy along a productive line, and in my submission, that's just an illustration of the type of problem that might arise when one has regard to clause 16 of the OH&S Act. You will recall Ms Doyle also gave evidence that she felt that there were some parts of the 1992 agreement that weren't being complied with, because some meeting wasn't held with Mr Draper, I think it was. Now, once again, if my friend is right, that is a breach of the certified agreement. That breach enables a permit holder to come in and demand to look at all of Mr Draper's diaries, for example, to find out whether there as a legitimate reason for not holding the meeting.

PN1516

It is a nightmare scenario, Commissioner, and if one has regard to the criteria identified by SDP Lacy we would say that the construction being urged upon the Commission by the union is not a meritorious nor a reasonable one, and in that regard, Commissioner, we rely upon the fact that the evidence of Mr Bass is that these structures are currently working well and they are comprehensive and we also rely upon the detail of the 1992 agreement and the Commonwealth Act that involves the unions, involves the HSRs and gives the HSRs considerable power. As Mr Bass said, if we don't progress these things appropriately, they can hit us with a PIN, and his evidence was, with respect to your hypothetical, of a fork lift driver driving too fast, ComCare would be there within 24 hours.

PN1517

THE COMMISSIONER: Just before we move off that point, Mr O'Grady, you emphasised the potential breadth of the legislation which could be encompassed if I was to find that clause 5 was not aspirational. You've indicated that Ms Doyle gave some evidence in relation to these matters, but the Occupational Health & Safety Commonwealth Employment Act 1991 covers all Australia Post employees?

PN1518

MR O'GRADY: It does, it does.

PN1519

THE COMMISSIONER: Yes. But I'm just at a loss to understand this myriad other legislation.

PN1520

MR O'GRADY: Well, as I understand it, the terms in clause 5 are all relevant Occupational Health & Safety legislation although I don't have - yes.

PN1521

THE COMMISSIONER: Yes, that's what I'm referring to. What do you mean? What else could there be?

PN1522

MR O'GRADY: Well, regulations, codes of practice. As I understood it, that was the effect of Ms Doyle's evidence and that may well be the case, Commissioner, because I don't think I can take you to the provision in this Act, but certainly under the Victorian Occupational Health & Safety Act there is reference to the codes of practice and the regulations also giving rise to regulation of Occupational Health & Safety in the state.

PN1523

THE COMMISSIONER: Yes, thank you.

PN1524

MR O'GRADY: Commissioner, I've taken you to SDP Lacy's decision. If I can very briefly take you to the Rail Metal Trades Grade Award decision which is print M2454 and I apologise, Commissioner, for the fact that this pre-dates paragraph numbering, but at page 3 of 9, the page numbering appears in the top right hand corner, you'll see at about point 4, this was obviously concerning a predecessor of the Act:

PN1525

In our view the processing envisaged by section 170MK and 113(2) involves firstly determining whether or not an ambiguity or uncertainty exists and secondly whether it's desirable to vary the agreement for the purposes of removing the ambiguity or uncertainty.

PN1526

With respect to the issue of ambiguity that's dealt with at about point 6 and his Honour, Gray J, in the PKIEU v Davies Brothers case is referred to where he talks about where you find an ambiguity and at page 4 of 9 in the first paragraph after the quote the Bench says:

PN1527

In our view the approach adopted by his Honour, Gray J in the PKIEU case is a sensible one and should be ...(reads)... contentions advanced before it and an arguable case had been made out for more than one contention.

PN1528

I won't take you to the Telstra decision, Commissioner, because I think it's dealt with sufficiently by the Beltana decision. Commissioner, in paragraphs 21 and 22 I deal with the argument that was raised by my friend in opening but wasn't pursued in his final submissions that the nature of the application that we have brought is one amenable to section 170MD(6) because we are seeking to find out whether clause 5 has got legal force and effect. If I could simply ask the Commission to have regard to what's said in those paragraphs. As my friend said in his submissions, the Commission is not bound by the form of the order we seek anyway. It's a question of resolving.

PN1529

Commissioner, in paragraphs 23 and following, I deal with the merits issue and I think I've canvassed those matters in the course of what I've said on my feet to the Commission, and if I can turn, finally, Commissioner, to paragraph 32 which deals with the matters that the Commission raised this morning and can I start with the Blair Protocols which, as the Commission has noted, it appears at PB8. In my submission it is not correct as a matter of construction to try and construe clause 5 of EBA6 by reference to what's in the Blair Protocols. It is not the case, Commissioner, that two documents were generated contemporaneously or in a way that suggests that the parties wanted you to have regard to one in construing the other.

PN1530

The Blair Protocols were of course made in March of 2001 and that appears in the top paragraph under the heading. They were made in respect of a certified agreement that's very different to the certified agreement that's currently before the Commission and one could perhaps understand, Commissioner, if the order was around the other way, that if you had clause 5 and then a week later or a month later or a year later, Australia Post agreed upon the Blair Protocols. That might be said to acknowledge that, well, we understand that there is an obligation with Occ Health & Safety with respect to clause 5, but that reasoning process doesn't work when the order is reversed in my respectful submission on the facts of this case.

PN1531

The second submission I ought put, Commissioner, is that the Blair Protocols are capable of perfectly sensible operation even if you accept that clause 5 of EBA6 is aspirational only. You know, my learned friend spent some time, you know, in effect suggesting that the whole thing may be just thrown away if you don't accept his contention with respect to clause 5, but in my submission that's just not the case, because the only clause that would appear to have operations 1.4, and clause 1.4 does not in terms say that the CEPU is entitled to come on and inspect with respect to Occupational Health & Safety issues.

PN1532

It does refer to inappropriate/unsafe work practices. But that phrase can have application in a myriad of circumstances and for example, under the current agreement, clause 6.6 refers to the use of relief staff. Now, if there was an inappropriate or unsafe work practice with respect to relief staff, that would on its face amount to a breach of clause 6.6 - sorry, I'll say it again. If clause 6.6 was breached, that could involve inappropriate or unsafe work practices because 6.6A says that Australia Post is to ensure that unreasonable work load demands are not placed on other staff.

PN1533

Now, in those circumstances one can readily imagine a permit holder saying, well, I suspect you're in breach of clause 6.6, and furthermore that the breach I suspect has if you like an OH&S dimension because it raises issue about the appropriateness or the safety of the work practices you're employing and I want to assert the rights that are referred to in clause 1.4. Clause 9.2 of the agreement deals with job alterations, job design. Once again, if Australia Post were to breach its obligations with respect to 9.2 it might well be said that, well, I think you're in breach of clause 9.2. There's a dimension of that breach that involves inappropriate or unsafe work practices and I want to assert the rights that are contained in clause 1.4 of the Blair Protocols.

PN1534

THE COMMISSIONER: But is that an appropriate example to provide? I suspect that rather may be confusing rather than clarifying to the extent that 9.2 specifically mentions access to the dispute settlement procedure at clause 12.1 regarding any disputes that might arise.

PN1535

MR O'GRADY: Well, I'm not saying - I accept that, Commissioner. Clause 9.2 does suggest that, really, the first port of call should be the dispute resolution procedure and I accept that. Clause 6 - - -

PN1536

THE COMMISSIONER: I'm sorry, in relation to clause 6.6, how is that going to be dealt with?

PN1537

MR O'GRADY: Well, the dispute resolution procedure would of course apply to any dispute arising under the agreement and so the parties could deal with it under that mechanism, but my position or my proposition to the Commission is that if it was suspected by a permit holder that we had imposed an unreasonable work load demand on other staff as a result of our use of relief staff, then that might be something that could give rise to a right of entry under 285B and if such a right of entry were asserted, that would appear to fall squarely within the terms of clause 1.4 of the Blair Protocols.

PN1538

Now there are others I can take the Commission to, but the fundamental point with respect to the Blair Protocols, Commissioner, is that you shouldn't start from the proposition that you have to expand what clause 5 of EBA6 provides in order to give clause 1.4 of the Blair Protocols some work to do. It was something that was agreed five years ago and particularly, Commissioner, in the light of the evidence that you've heard as to what Australia Post intended by this provision and what it told the union it intended by the provision.

PN1539

THE COMMISSIONER: Now that you've raised this, there's just something that I'm not entirely satisfied with. In relation to clause 6.6, that's not mentioned in your clause 21 or your clause 13, whichever way you do the numbering, on page 9 of G1.

PN1540

MR O'GRADY: I apologise, Commissioner.

PN1541

THE COMMISSIONER: No. I'm not sure whether in fact you have numbered all the provisions. Where would it fall?

PN1542

MR O'GRADY: Well, there is 6.6A, we would say, suggests that there might be something capable of obligation through the use of the word ensures.

PN1543

THE COMMISSIONER: Yes. I'm just interested because you've asked me to take particular attention to the wording which has been in the clauses which are specified under the paragraph we're talking about of G1.

PN1544

MR O'GRADY: Yes.

PN1545

THE COMMISSIONER: And you're seeking to draw a contrast in the language. Is 6.6, is it an aspirational issue in relation to - on akin with 5.1, as you assert, or does it fall into, for example, 6.18 which says the terms of the agreement which shall apply or shall have?

PN1546

MR O'GRADY: Well, the word ensures, Commissioner, was the one that I was having regard to and in my submission there would be at least a stronger argument that that language might give rise to an obligation. What I attempt to do in clause 13 is make it very clear what clauses unequivocally impose an obligation and you're right, Commissioner, clause 6.6 doesn't. It's certainly a lot stronger than clause 5. But it was something I put forward very much with a view to illustrating the proposition that there may well be provisions in the agreement which are not OH&S provisions per se, but which the breach of which, or the non compliance of which can raise issues that have an OH&S dimension and that's what we say clause 1.4 of the Blair Protocols is designed to address.

PN1547

When one has regard to the fact, Commissioner, that different agreements have come and gone in the life of the Blair Protocols, it may well be that there were different provisions there under consideration when the thing was drafted. We don't know. We don't have any evidence about that. The only evidence we have about that, Commissioner, is what was the provision with respect to the previous agreement which was in force at the time the Blair Protocols were there and which, according to the union's outline of submissions, has an Occupational Health & Safety clause that was evidently aspirational.

PN1548

Now, if Mr Farouque is right about what he said regarding the Blair Protocols in clause 5 of EBA6, there could be no basis for the assertion in the union's material that clause 3.1(vii) was aspirational because, as he put to you, that would leave clause 1.4 with no work to do. In my submission, Commissioner, this all points to the fact that it's not the correct approach with respect to try and give work to clause 1.4 of the Blair Protocols. It's there. It may have work to do from time to time depending on what the parties agree down the track, but if you're construing clause 5 of EBA6, in my submission the starting point is the words, but you can also have regard to the context in which those words were adopted and that's what was submitted elsewhere.

PN1549

THE COMMISSIONER: Mr O'Grady, the Blair Protocol only exists in Victoria, doesn't it?

PN1550

MR O'GRADY: Yes, that's my understanding. The other point I should make with respect to the Blair Protocols, Commissioner, is that in my submission they don't confer any additional right of entry above and beyond that provided for by the Act. As Mr Farouque has acknowledged, they do contain some agreed limitations on that right of entry, including the limitation that the nature of the suspected breach will be identified, but in my submission, they don't purport to and don't have any legislative effect that could be seen as conferring additional right of entry. So for those reasons we would say that the Commission should not give them any weight at all when it comes to construing what clause 5 of EBA6 provides.

PN1551

Commissioner, if I can very briefly just deal with a couple of points that my friend raised in his submission. Firstly, my friend took you to the Mosharan decision. Commissioner, he took you to paragraph 27. You will recall that in exhibit G1 we set out the relevant part of paragraph 24 and it's in paragraph 24 that his Honour tries to set out the principles.

PN1552

THE COMMISSIONER: I'm sorry, what paragraph is that?

PN1553

MR O'GRADY: Paragraph 24. This is set out in exhibit G1, but it's in paragraph 24 where his Honour sets out the principles, if you like.

PN1554

THE COMMISSIONER: What page is it?

PN1555

MR O'GRADY: Page 12 of the one I have, Commissioner, but it may be - - -

PN1556

THE COMMISSIONER: Yes, page 12 of G1.

PN1557

MR O'GRADY: No, sorry. Of G1, page 10 of G1.

PN1558

THE COMMISSIONER: Yes.

PN1559

MR O'GRADY: And the other point I'd make, Commissioner, is paragraph 27 which my friend took you to, his Honour does say and this is in Mosharan's case, that:

PN1560

Evidence of antecedent negotiations including drafts and correspondence exchanged between the negotiating parties may establish background facts which were known to both parties and to that extent such materials are relevant.

PN1561

We would say that falling within the ambit of that is what Mr Rogan told Ms Herrington and what she did in response. With respect to Ms Herrington's evidence we would ask the Commission to note that there have been three different versions of what took place provided by Ms Herrington. Her initial response to the letter of Ms Doyle which is exhibit JD3 simply was along the lines that she could not recall a commitment along the lines being referred to by Mr Bass having been made. That's exhibit JD3, it's a little paragraph as I recall, Commissioner. I can't recall making such a commitment. That was in response to a letter from Ms Doyle which is exhibited as PR5 where Ms Doyle, we would say, asked for confirmation in writing that what Mr Bass said in his correspondence was not correct. So there was a pretty, we would say, strong request and it was met with what on any view was a pretty lacklustre response.

PN1562

Then Ms Herrington had another go when she put forward the version of events that appears in exhibit F5 and she had a third go when she put forward the version of events that appears in F6 and there are significant differences between what she says occurred between F5 and what occurred in F6 and we say that if the Commission has any doubts about what was said, those matters should be taken into account. Obviously we say that Ms Oldmeadow's recollection and that of Mr Rogan should be preferred.

PN1563

My friend suggested that, well, if there was any discussion, it was only about right of entry, not about obligation. I'd ask the Commission to have regard to the evidence of both Ms Herrington and Ms Doyle on that issue which in my submission was to the effect that right of entry followed obligation as night followed day. I asked both Ms Doyle and Ms Herrington why these things weren't dealt with expressly in clause 3.5 and was told we didn't need to, because once there was an obligation, well, right of entry follows.

PN1564

Now, that may well have been the understanding of all the parties and even if my friend is right and Mr Rogan should only have been taken to have referred to right of entry, the Commission, in my submission, should proceed on the basis that that put everybody on notice of what he's talking about is his obligation. Commissioner, with respect to the question you asked me, my instructions are that were you to find that clause 5 was aspirational, Australia Post would not be pressing this application pursuant to section 170MD(6). If the Commission pleases.

PN1565

THE COMMISSIONER: Thank you, Mr O'Grady. How are you going there, Mr Farouque?

PN1566

MR FAROUQUE: Weighed down by a bunch of paper, Commissioner.

PN1567

THE COMMISSIONER: I know the feeling.

PN1568

MR FAROUQUE: Yes.

PN1569

THE COMMISSIONER: What's your view? Do you want some time?

PN1570

MR FAROUQUE: Well, Commissioner, I suppose there are two matters which my learned friend has raised which weren't contained in the outline of submission he should have filed, and that goes to the decision and the Electrolux point which he referred to but didn't go to in great detail, may I say, and also the point in respect of the FSU decision. Those are points raised in my learned friend's outline which are filed by the parties in support of the application and I would seek an opportunity to put in some written submissions, or perhaps if we could come back for a short period to put some oral submissions in reply in respect of those decisions, then that would be a convenient course for me. Does the Commission have a pressing commitment this afternoon in respect of - - -

PN1571

THE COMMISSIONER: No. I can safely say the good officers of my associate are completely blown out of the water all the other commitments I had this afternoon. So I'm at your disposal.

PN1572

MR FAROUQUE: Well, Commissioner, would it be convenient for some short oral submissions to be put in reply together with points in respect of the Electrolux and the FSU point on another day so that that matter can just be dealt with then in totality?

PN1573

THE COMMISSIONER: I accept what you say in relation to Electrolux and I'm prepared to consider your application in relation to that. In relation to the other points, though, are you in a position now to respond to them?

PN1574

MR FAROUQUE: I can go to those points.

PN1575

THE COMMISSIONER: Yes. I also want your view, and you said there were two points.

PN1576

MR FAROUQUE: Yes.

PN1577

THE COMMISSIONER: The Electrolux issue is one.

PN1578

MR FAROUQUE: And the FSU decision that my learned friend referred to as well.

PN1579

THE COMMISSIONER: That's two. The other thing I want to be totally satisfied that the CEPU understands the final point made by Mr O'Grady in relation to section 170MD application. I'm not sure whether the union is completely clear on that point or not.

PN1580

MR FAROUQUE: In what sense, Commissioner?

PN1581

THE COMMISSIONER: The fact that if your application is not successful, then the Australia Post would not proceed with its 170MD application.

PN1582

MR FAROUQUE: I understand that's the position that Australia Post put.

PN1583

THE COMMISSIONER: Yes, and the CEPU understands that, as an ongoing matter?

PN1584

MR FAROUQUE: Well, I can confirm that I don't think that there's any - that if the right of entry application is not successful, I think what my learned friend is saying that they don't press the MD application.

PN1585

THE COMMISSIONER: Yes.

PN1586

MR FAROUQUE: I understand that.

PN1587

THE COMMISSIONER: Perhaps we could continue now, save for those two issues regarding Electrolux and - what was the other one?

PN1588

MR FAROUQUE: Yes, Commissioner, the FSU.

PN1589

THE COMMISSIONER: FSU, yes.

PN1590

MR FAROUQUE: Commissioner, in relation to the matter of the Big W decision of my learned friend's attempt to distinguish that decision, we submit as follows, that the decision in the Big W case concerned the clause which is set out in paragraph 10 of the decision and the contention in respect of the binding obligation arising from that clause was made in relation to clause 2.6(a) of that clause in the relevant certified agreement. That clause is substantially, as I've submitted, materially in the same terms as that in clause 5 of EBA6 and, Commissioner, in that sense we say that the Commission's consideration in the Big W case in respect of the binding obligation imposed by 2.6(a) has application.

PN1591

In respect of this decision, insofar as that clause, 2.6, contained other paragraphs which dealt with other matters, process, et cetera, that wasn't the basis upon which the Full Bench in the Big W case decided that there were binding obligations. The Full Bench in Big W, as is evident from paragraph 28 and paragraph 29, decided the matter in respect of clause 2.6(a) and that was the clause or subclause which was the focus of that particular decision and in that particular matter the Full Bench referred at paragraph 29 to, in our view, clause 2.6(a) has the effect for which the appellant contends.

PN1592

It then went on to say, further, 2.6(b) sets out what is sought to achieve by the commitment expressed in subclause (a). So clearly the decision of the Full Bench was focused on 2.6(a). Those were the submissions and contentions of the union party in that particular proceeding and the decision focused on that particular subclause, 2.6(a) which is, in material terms, identical to clause 5 in the EBA6 which is presently before the Commission. So we say insofar as there is some attempt to distinguish the Big W decision, it falls flat once one looks at what in fact was decided by the Full Bench in that particular instance.

PN1593

Now, Commissioner, my learned friend also referred to a number of subparagraphs, clauses of the enterprise agreement. He referred to paragraph 13 of the initial Australia Post outline of submissions, clause 13 and clause 14, where he says, well, there are clauses which evince an intention to impose binding obligations, clauses in reference to will/will not, can only, must not, shall, et cetera. So one can see, Commissioner, that in the way that the agreement is phrased, there's not, for example, the consistent term used to evince an intention in respect of binding obligations.

PN1594

There are multiple terms used in the agreement which evince an intention to impose binding obligations. Now, in the ordinary course, we say abiding in clause 5 of EBA6 is similarly one of the many different terms using the agreement to evince a binding obligation and one can see that these agreements, as I've referred to in the CEPUs second written submission, that one cannot use the infelicities of expression or use these - I think it's a common position, my learned friend referred to that matter - one cannot read these instruments, industrial instruments as if there were statutes carefully drafted by the Parliamentary draftsperson. They're industrial instruments and different terms may be used by the parties in that context to impose binding obligations.

PN1595

Now, as the Commission is very live to, in one of the concluding submissions that my learned friend made when he referred to in the context of addressing matters in the Blair Protocol, clause 6.6, which is prefaced with the words:

PN1596

Australia Post is committed to providing adequate relief staffing to cover business requirements in a way in which ensures that unreasonable work load demands are not placed on other staff.

PN1597

That's 6.6. The proposing argument, in approving terms, an argument may be made that that clause imposes some type of binding obligation on Australia Post in respect of unreasonable work demands. Now, in my submission, Commissioner, that reasoning which my learned friend referred to is somewhat analogous to the reasoning that we rely upon in respect of clause 5 of EBA6. There we have the parties are committed to achieving and maintaining healthy and safe working conditions in all Australia Post work places by abiding by it. The terminology which - and a method of drafting which is somewhat - although there are some subparagraphs in 6.6 - somewhat similar to what is set out in 6.6(a).

PN1598

There's a commitment. It's committed to providing adequate relief staffing to cover business requirements in a way which ensures that unreasonable work demands are not placed on other staff. So you can't just chop and change, Commissioner, what is convenient to a party in respect of a particular argument. We say that clause 5 by its terms clearly evinces an intention to impose a binding obligation.

PN1599

Now, just a further point in relation to the Big W decision. The circumstance of that particular proceeding being an LW application does not in a sense detract from the determination or the decision made by the Full Bench about the terminology used in that particular clause of that enterprise agreement and the fact that it occurred, that decision or determination occurred in the context of an LW proceeding does not detract from its forces and authority in respect of the terminology used in that particular clause which is, as I've said, in similar terms to the terminology used in EBA6 clause 5.

PN1600

Now, my learned friend referred to the context in which that decision was made and the fact that it was - - -

PN1601

THE COMMISSIONER: I'm sorry, what was that, EBA6?

PN1602

MR FAROUQUE: EBA6, sorry, Commissioner, yes.

PN1603

THE COMMISSIONER: Yes, I see what you're saying, yes.

PN1604

MR FAROUQUE: EBA6. My learned friend then referred to the unpalatable nature of the submission being put forward by the employer party in the Big W decision and said, well, it's a bit different here. There's a disputes resolution procedure which he evidently submitted on behalf of Australia Post, it allows Occupational Health & Safety issues to be the subject of arbitration. Well, that can't be in my submission a relevant consideration in how the Commission constructs clause 5 of EBA6. That cannot bear on the construction of clause 5 of EBA6. The fact that there may be dispute resolution procedures which allow arbitration in respect of industrial disputes which raise Occupational Health & Safety matters cannot bear on the matter as to how clause 5 of EBA6 is construed. So we would say that that factor is irrelevant.

PN1605

Now, my learned friend referred to the ASU v ATO decision. I must say, that decision it not one that I referred to and I know that my learned friend indicated that it was against the interests of Australia Post and perhaps I can address that decision in any further submission, but I'm indebted to my learned friend for drawing that authority to the attention of the Commission and to me on the question of the application of a clause which refers to some other instrument.

PN1606

Now, Commissioner, in respect of the matter of the Blair Protocol, in my submission the way in which it is material to a determination in this particular proceeding is that if the Commission construes clause 5 of EBA6 as imposing a binding obligation upon Australia Post, then the Commission must then consider whether it makes an order in the terms sought and we say the Blair Protocol is material, particularly in that sense, Commissioner, that the Blair Protocol contemplates, despite what my learned friend says, right of entry to be exercised in respect of inappropriate, unsafe work practice, which clearly would be a reference to a matter which breached Occupational Health & Safety standards encompassed in the relevant Commonwealth Act, the Occupational Health & Safety Act 1991, or the 1992 agreement.

PN1607

So we would say that that is the way in which it is material, Commissioner. It goes to that particular matter, that it's an instrument which is affirmed, an industrial agreement which is affirmed by both parties and by making the order sought, one would in a sense be acting consistent with what is agreed as embodied in the Blair Protocol. Now, Commissioner, perhaps I have decided I didn't address a matter which is dealt with in reply in my learned friend's submission and that goes to the section 170MD(6) variation and I'd seek leave to address that.

PN1608

The point that we make in respect of that matter is that the variation sought by Australia Post, as I submitted in opening submissions, goes purely to the legal effect of the clause. It doesn't go to the meaning of the words Mr Rogan, in his evidence, essentially finally coughed it up as to what the provision meant, and that it was an obligation, his words were to the effect, that Australia Post to comply with the '91 Act and the Occupational Health & Safety agreement, to use words to that effect, and we would say that in that sense, the meaning in respect of that clause is, in a sense, clear. But the legal effect is what Australia Post seeks, in its application, it seeks a variation which goes to the legal effect of the clause, and we submit that as a matter of discretion that, particularly as a mater of discretion, Commissioner, that the Commission should not in the circumstances as are presently before it, attend to a variation of the clause, which really in its terms, goes to some statement dealing with the legal effect of the particular clause. That is not something which militates in my submission against the granting of a variation in the terms sought if the Commission is minded to find that there is an ambiguity.

PN1609

Now, Commissioner, in relation to what my learned friend puts on the question of the merits of the variation arising from what he submits are unworkable matters arising from breaches of, or suspected breaches of EBA6, arising from the standards in the Occupational Health & Safety legislation and the industrial instruments, those matters, Commissioner, were not - my learned friend's cross-examination of the witnesses on that particular count were not in relation to any particular situation. The relevant standards were not before the witnesses and in a sense it was a bit speculative, we say, in respect of those so called unworkable situations which would arise.

PN1610

Now, we heard the evidence of Ms Doyle on that account, that she affirmed the Blair Protocol. I think her evidence was to an effect that, under cross-examination as I recall it, and I don't have the benefit of transcript as do neither of the counsel at the bar table, or indeed the Commission, that those powers were not something which, I think she said were to be exercised, you know, at a whim. I think something to that effect was part of the evidence given by Ms Doyle. Now, Commissioner, we submit that when one considers the circumstances Occupational Health & Safety standards are important and serious matters, and that is encompassed and indeed, recognised in the Blair Protocol.

PN1611

We have, Commissioner, a clear reference to the way that matters will be dealt with once entry in respect of unsafe, inappropriate work practice is exercised. That is, dealt with in accordance with the agreed resolution procedure. So this element of unworkability in my submission simply is not one of great or significance. Of course, we heard the evidence of Ms Herrington in respect of Occupational Health & Safety and I think some examples were put to her and Ms Herrington indicated well, any such breach - and I can't remember the specific example put by my learned friend - is that why would the exercise of right of entry would be self-evident to what the nature of the breach was in that particular situation.

PN1612

So we say this argument of unworkability is simply not one which is of sufficiently good foundation such that the Commission would exercise its discretion under section 170MD(6) to vary the agreement. Now, Commissioner, the matter in respect of the application and the way that the application has proceeded, my learned friend said, well, the CEPU had not raised the matter as to whether the application had been served on the other union parties, but, Commissioner, that's not - service on the other union parties is not the obligation of the CEPU. We raised the matter as to whether the application had been served on the other parties with the MD application.

PN1613

We raised that issue with Australia Post on the first day of this particular proceeding. It's there - - -

PN1614

THE COMMISSIONER: But I think that matter can be disposed of, because in fact the onus arises in relation to the section 170MD application, not in relation to a dispute between the CEPU and Australia Post which has been lodged pursuant to section 99.

PN1615

MR FAROUQUE: Yes, certainly in respect of the CEPUs application. I don't think any issue arises, but in relation to Australia Post's application in MD6 - - -

PN1616

THE COMMISSIONER: Well, I think I've just told you what I think in relation to that. I don't think you need to address that any further.

PN1617

MR FAROUQUE: Commissioner, I'm - - -

PN1618

THE COMMISSIONER: All right, continue, Mr Farouque.

PN1619

MR FAROUQUE: I would appreciate if you could just clarify that, Commissioner. I might not need to address it any further.

PN1620

THE COMMISSIONER: Save for the fact - it's getting too late - save for the fact that Mr O'Grady has sought that I do - if there are problems arising - that I should amend the fault pursuant to the rules, to rule 6 of the Rules of the Commission, that may be something you want to address.

PN1621

MR FAROUQUE: Yes, Commissioner, that would be necessary in respect of the application being on a proper footing before the Commission. In respect of that matter, Commissioner, we say, well, the proceeding has now essentially concluded. The other union parties have already been given notice of the application as I understand it yesterday, from what my learned friend has said. It goes to the point, Commissioner, one where the application is properly before the Commission, those parties not having been given an opportunity to deal with the matter, the proceeding now having essentially come to a close, or substantially come to a close.

PN1622

Furthermore, Commissioner, we raise it, and when I raised the matter in my opening submission and my closing submission, initially, I wasn't aware that that service had in fact not been effected. I'd raised the issue and I understood that there was going to be some clarification obtained in respect of the matter, but now it's clear that service has not been effected. In my submission it is a substantial defect which goes to the application and the proceeding is now coming to a close. So, Commissioner, we raise that matter with the Commission.

PN1623

Furthermore, Commissioner, we raise it also in the alternative sense, it's material to another sense, although service is not strictly upon there. The fact is that there is no evidence of the mutual intention of the other union parties which is before the Commission and that goes to the point that was raised I the Beltana decision. In that particular case APESMA was a party to the agreement and evidently, from the appearances before the tribunal, appeared before the tribunal before SDP Marsh in that particular proceeding, but no evidence was given by APESMA as to the intention of the relevant clause which was sought to be varied.

PN1624

So the Commission said, well, it found itself in a difficult position in determining the presumed intention of the parties to the agreement in that particular situation. So we say, regardless of whether service has now been rendered, that the Commission is labouring under a substantial disadvantage in determining the presumed intention of all of the parties to the agreement, and we say that would substantially militate against any MD(6) variation I the circumstances regardless of whether the application has yesterday been served.

PN1625

Commissioner, that concludes the submissions that I wish to take, subject to those two matters that we referred to.

PN1626

THE COMMISSIONER: Yes, thank you, Mr Farouque.

PN1627

MR O'GRADY: Commissioner?

PN1628

THE COMMISSIONER: Yes, Mr O'Grady?

PN1629

MR O'GRADY: I was just going to ask with respect to those two matters, we presume we have leave, through some mechanism or another, to put something in reply to what Mr Farouque might say to those two matters that he hasn't addressed? I only raise it, if the Commission was minded to, say, require Mr Farouque to put something in writing, that we have an opportunity to put something shortly in writing and reply to them, on those two cases, or those two issues.

PN1630

THE COMMISSIONER: Right. Then will Mr Farouque want to come back to me to want to reply to the reply?

PN1631

MR O'GRADY: No. Commissioner, I haven't heard what Mr Farouque says in respect to those - - -

PN1632

THE COMMISSIONER: Yes, because they were raised in relation to your matters.

PN1633

MR O'GRADY: Yes.

PN1634

THE COMMISSIONER: Yes. Mr Farouque, could I ask you, or require you to provide any responses in written submission by 4 November?

PN1635

MR FAROUQUE: Commissioner, that's next week, I understand it?

PN1636

THE COMMISSIONER: Yes.

PN1637

MR FAROUQUE: What day is that of next week?

PN1638

THE COMMISSIONER: Friday.

PN1639

MR FAROUQUE: Yes, I think I can do that, Commissioner, that would be convenient.

PN1640

THE COMMISSIONER: Yes. That provides a week.

PN1641

MR FAROUQUE: Yes.

PN1642

THE COMMISSIONER: I think the parties have been on this long enough, and then lodge those with the Commission and serve them on Mr O'Grady and by Friday, the 11th, anything in response.

PN1643

MR O'GRADY: Thank you, Commissioner.

PN1644

THE COMMISSIONER: Thank you, Mr Farouque and Mr O'Grady. There have been some very interesting issues that have been raised. Probably not everyone's cup of tea, but it's a very important matter in relation to the EBA6 between the parties and I'd like to thank you for the way in which you've addressed it. These proceedings are not adjourned and we're not coming back tomorrow.

<ADJOURNED INDEFINITELY [5.54PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #G4 LETTER AUSTRALIA POST TO GREG COMBET, SECRETARY ACTU DATED 20/08/2004 PN1048
EXHIBIT #G5 LETTER DAVID BAKER, GROUP EXECUTIVE OFFICER AUSTRALIA POST TO BRIAN BORG, DIVISIONAL SECRETARY CEPU DATED 8/10/2004 PN1049
EXHIBIT #G6 SECOND LETTER DAVID BAKER TO BRIAN BORG DATED 8/10/2004 PN1050
EXHIBIT #G7 GUIDELINES FOR UNION DELEGATES PN1051
PETER ALFRED BASS, SWORN PN1061
EXAMINATION-IN-CHIEF BY MR O'GRADY PN1061
EXHIBIT #G8 STATEMENT OF PETER ALFRED BASS PN1071
CROSS-EXAMINATION BY MR FAROUQUE PN1082
RE-EXAMINATION BY MR O'GRADY PN1190
THE WITNESS WITHDREW PN1198
EXHIBIT #G9 WRITTEN SUBMISSIONS FOR RESPONDENT PN1358