C2006/2748, Transcript of Proceedings [2006] AIRCTrans 878 (10 July 2006)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 15308-1

SENIOR DEPUTY PRESIDENT ACTON

C2006/2748

APPEAL BY COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA
s.120 - Appeal to Full Bench
(C2006/2748)

MELBOURNE

3.18PM, TUESDAY, 27 JUNE 2006

PN1

MR M IRVING: I seek leave to appear for the appellant in this matter.

PN2

MR M MCKENNEY: I seek leave to appear on behalf of the respondent to the appeal.

PN3

MR K FAROUQUE: I seek leave to appear for Ms Doyle, state secretary of the Victorian Branch of the CEPU.

PN4

MR MCKENNEY: Your Honour, I'm not sure, given the terms of the order, I don't know if you've had a chance to read the terms of Commissioner Foggo's order, how Mr Farouque can appear separately on behalf of the state secretary of the union. The appellant, as I understand it is the CEPU for whom Mr Irving appears.

PN5

THE SENIOR DEPUTY PRESIDENT: Yes. Ms Doyle is not sort of named separately in the order.

PN6

MR MCKENNEY: No, she's not, your Honour.

PN7

THE SENIOR DEPUTY PRESIDENT: I presume she's named as sort of one of the officers indirectly, but - yes.

PN8

MR MCKENNEY: But not specifically. I'm just uncertain on what basis Mr Farouque can appear for Ms Doyle.

PN9

THE SENIOR DEPUTY PRESIDENT: Mr Farouque.

PN10

MR FAROUQUE: Your Honour, I just want to refer to paragraph 2A of the order which sets out that the order is binding upon officers, employees, agents and delegates. Ms Doyle is an officer of the union and furthermore, paragraph 4(c) of the order, which imposes certain obligations upon officers, employees, agents and delegates, requires Ms Doyle to do certain things. For instance, in respect of (iii):

PN11

Immediately advise the relevant CEPU delegates and members -

PN12

et cetera, and then (iv):

PN13

Take all steps necessary and available to ensure that employees comply with this order.

PN14

The subject matter of the stay and the points raised in the notice of appeal which we would respectfully intend to adopt, deal directly with matters which are - or requirements imposed upon Ms Doyle pursuant to this order. In my submission, Ms Doyle has obviously a direct interest in the appeal and indeed the stay application and it would be appropriate that we be granted that she be represented in this proceeding.

PN15

THE SENIOR DEPUTY PRESIDENT: Is there anything else you want to add, Mr McKenney?

PN16

MR MCKENNEY: Your Honour, the terms of the order make it clear that it applies to the union and all its officers, employees, agents and delegates. Ms Doyle is in no different position than any other officer of the union. There's no special reason, in my submission, why Ms Doyle needs to be represented in these proceedings because the order clearly applies to the organisation and all of its officers, employees, agents and delegates.

PN17

THE SENIOR DEPUTY PRESIDENT: Mr Farouque, to the extent necessary, as well as in the alternative to the appearance of right, do you seek to appear by leave?

PN18

MR FAROUQUE: Yes, your Honour.

PN19

THE SENIOR DEPUTY PRESIDENT: Anything you want to add to that Mr McKenney?

PN20

MR MCKENNEY: The same reasons, it's just not appropriate, your Honour, that leave be granted for a particular officer of the union when the order binds the union and all of its officers.

PN21

THE SENIOR DEPUTY PRESIDENT: To the extent necessary I'll give you leave to appear, Mr Farouque. Mr Irving.

PN22

MR IRVING: Yes, thank you.

PN23

THE SENIOR DEPUTY PRESIDENT: Leave is granted to the others, too, by the way.

PN24

MR IRVING: Your Honour, last evening or early this morning
Commissioner Foggo made the Australia Post June 2006 national day of protest order. Has the Commission a copy of that order?

PN25

THE SENIOR DEPUTY PRESIDENT: Yes, I do. It's PR973179.

PN26

MR IRVING: Yes, your Honour. The order is in reasonably standard form for some of its provisions. There are a couple of matters that I wish to note, firstly in relation to clause 2 and your Honour will note that the order is binding on employees of Australia Post who are members or eligible to be members of the CEPU, so binding on non-members as well and who are employed under the EBA and employed by Australia Post.

PN27

The key provisions which we seek to agitate this afternoon, and we would seek a stay order in relation to, are in paragraph 4(c)(iii) and (iv). Those provisions, if I could perhaps take you first to (iv) it imposes an obligation on the CEPU, its officers, employees, agents and delegates to take all steps necessary and available to ensure that the employees comply with this order, including but not limited to advising each employee of the terms of the order.

PN28

If I could just stop there, Senior Deputy President, and note a couple of things in relation to that. Firstly, it requires the CEPU to advise each employee, employee is not a defined term, but it's clear from clause 2 that employee extends to
non-union members as well as union members. The CEPU is obliged to appear by that order to provide advice, not of the effect of the order, but the very terms of the order to thousands and thousands of non-union members. The employer is yet to provide us with the names and addresses of those people to enable us to comply and we have some difficulty complying with the terms of that order as it's currently framed.

PN29

Perhaps if I could just add by way of fleshing out the situation at the workplace, we're talking about a workplace in which there are about 25,000 employees, maybe as many as 33,000 - there have been recent redundancies - of which approximately 20,000 are members of the appellant. There are many hundreds of workplaces across Australia. There are 500 here in Victoria alone, approximately 500. There are over 1000 delegates. The order imposes obligations on each of those delegates. A breach of the order by any of those delegates gives rise to civil remedy against each of the individuals pursuant to section 719, of penalties maximum of $6600.

PN30

The scope of clause (iv) of 4(c) is brought into clearer focus when one has those numbers in mind and sees that it requires each of those delegates to advise each employee, whether engaged at their worksite or not, whether a union member or not of the terms of this order. It's wholly impracticable, indeed impossible. It is not only impossible for the delegates concerned and for each of the officers and each of the employees of the organisation, but for the organisation itself in the timeframe contemplated by the order to contact each of the employees and advise them of the terms of the order.

PN31

What has been done after her Honour reserved the decision last evening and handed down a judgment at some stage overnight and we became aware of it at about 8 am, we wrote to the employer - - -

PN32

THE SENIOR DEPUTY PRESIDENT: What actually happened last night?

PN33

MR IRVING: There was a hearing which resulted in a reserved decision.

PN34

THE SENIOR DEPUTY PRESIDENT: What time did that finish?

PN35

MR IRVING: At about 10.30 pm and at some stage, I understand around 8 am this morning the union or their solicitor received notice of the order that was made at about 8.23 am this morning and was served in accordance with the terms of the order on the union.

PN36

THE SENIOR DEPUTY PRESIDENT: So the union didn't wait around for the order.

PN37

MR IRVING: It was a reserved decision, your Honour, and there's no indication that it was going to be given that evening. Indeed, the Commissioner gave an indication that it would not be until 8 am in the morning that she would be in a position to hand down the order itself.

PN38

MR MCKENNEY: Perhaps I can assist your Honour in terms of the timing because I appeared for Australia Post in the proceedings before Commissioner Foggo and Australia Post, along with certainly Mr Farouque and Mr Clark from Slater and Gordon who appeared last night for the CEPU, were advised by email from Commissioner Foggo's chambers at 10.54 pm last evening was when the notice came from the Commissioner's associate. We were told by the Commissioner, as I recall last night, we would be advised before 8 am this morning but as to the precise time, well, that was in the Commissioner's hands, your Honour.

PN39

MR IRVING: On my instructions, my client and Slater and Gordon weren't aware until approximately 8 am this morning and given the indication, it was quite sensible to go home and watch the soccer if need be, and carry on with ordinary life. If I could return to the steps that have been taken by the union, the union wrote to the employer - if I could provide your Honour with a copy of that letter dated today.

PN40

THE SENIOR DEPUTY PRESIDENT: Thanks.

PN41

MR IRVING: Paragraphs 1 and 2 are fairly self-explanatory in terms of what was required by the order. Paragraph 3 states the problem:

PN42

Given the large number of employees and worksites in Australia Post, that is over 1000 Australia-wide, the CEPU believes that these requirements can best be met by Australia Post placing a copy of the order on all noticeboards at all worksites usually used for the purpose of communicating with employees.

PN43

The union, of course, has a problem with communicating directly with employees by email, for example, for firewalls were established to block union emails coming in to advise members of certain union related matters at some places in Australia. Not in response to this letter, but of their volition, and a matter we were unaware of when we were writing this letter, the employer had in fact taken certain steps and wrote to us about those today. If I could provide - - -

PN44

THE SENIOR DEPUTY PRESIDENT: I'll just mark the first letter, Mr Irving.

EXHIBIT #I1 LETTER TO MS WALSH DATED 27/06/2006

PN45

MR IRVING: Thank you. The employer wrote today a letter to Ms Herrington, if I could provide the Commission with that. It refers to the correspondence received in paragraph 1 and paragraph 2, says it doesn't accept that the CEPU doesn't have resources to properly comply with the orders made by Commissioner Foggo. In paragraph 3 it states that:

PN46

In response to your letter Australia Post can confirm that it has distributed the attached SIB -

PN47

which I understand means staff information bulletin:

PN48

- this morning and has provided managers with a copy of the order to place on noticeboards. These documents were distributed at approximately 11.45 am this morning.

PN49

THE SENIOR DEPUTY PRESIDENT: 10.45.

PN50

MR IRVING: Sorry, "10.45 am this morning". Your Honour, on the basis of that, we ask you to proceed on the basis that in worksites across Australia a copy of the Commission's order is attached to noticeboards where these matters are commonly displayed. To the extent that the Commissioner was concerned to ensure in (iv) of her order that employees were made aware of the terms of the order, certain steps have been taken to ensure that those employees have in fact become aware of the order.

PN51

That is the first step that has been taken to ensure that employees have become aware of the orders that have been made. The second step, your Honour, is this, that the CEPU conducts a number of websites in New South Wales and nationally. The CEPU has published on the website a notice to all delegates and members, if I could provide a copy of that notice.

EXHIBIT #I2 LETTER TO MS HERRINGTON DATED 27/06/2006

PN52

MR IRVING: This is a copy of the terms of the notice that had been published on the website and continues to be published on the website and it is the union's intention to continue to publish this notice until the expiration of the order, your Honour.

PN53

THE SENIOR DEPUTY PRESIDENT: This is the union's website.

PN54

MR IRVING: Correct. The notice in terms reflects the requirements in paragraph 4(c)(iii) advising relevant CEPU delegates and members that:

PN55

Any direction, et cetera, advice or authorisation to its members to engage in industrial action or stop performing work in accordance with EBA6 is withdrawn and such action must cease.

PN56

Perhaps, your Honour, I could tender that.

EXHIBIT #I3 NOTICE TO ALL AUSTRALIA POST CEPU DELEGATES AND MEMBERS

PN57

MR IRVING: That is the second step that the union has taken to have these matters brought to employees' attention. Thirdly, your Honour, there were two specific sites mentioned in the evidence yesterday, the evidence concerning whether or not industrial action was proposed or was going to be taken or was threatened to be taken, et cetera. There were two specific sites mentioned in the evidence. They were Charmhaven delivery centre and City Street delivery centre.

PN58

MR MCKENNEY: What was the first one?

PN59

MR IRVING: Charmhaven which is in Gosford, New South Wales.

PN60

THE SENIOR DEPUTY PRESIDENT: What was the second one?

PN61

MR IRVING: City Street delivery centre, which is in the city of Melbourne. The union has taken specific steps to ensure that members and delegates at those workplaces have been informed of the order that had been made. In particular the union has ensured that on the noticeboard at Charmhaven delivery centre a copy of the order has been set out, a notice in similar terms to that published on the website has been placed there to advise delegates, et cetera, of the requisite matters.

PN62

At City Street delivery centre the relevant official of the union has spoken to all of the relevant delegates, informing them of the Commission's order and ensuring that steps are taken to ensure compliance with the order in terms of the advice that is required. That is the third step that has been taken by the CEPU to bring these matters to the attention of members and delegates and in terms of officers, each of the branches has been notified of the terms of the order and they are all familiar with it.

PN63

Your Honour, if I could just return now, in light of those steps taken, to the difficulty, if not impossibility of complying with the order. I can inform your Honour I am instructed as follows. The ordinary method of conveying information to members and delegates differs from state to state. There is no central email system whereby one can send out to all of the delegates the information. In any event, emails addressed to Australia Post work addresses are firewalled so delegates don’t get the information. They have private email addresses that they might check overnight, but it will be largely too late in any event.

PN64

In Queensland the postal and telecommunications branch, which is about 95 per cent of the membership of the organisation in this division, the postal and telecommunications branch does communicate with members by mail. They can do a fax stream to delegates but the unfortunate thing is that it has been the experience of the organisation that faxes sent out to workplaces from the union are often taken from the fax machine and not distributed to the relevant delegate or member, but rather simply thrown away by the employer. If the union did fax out by fax stream a copy of the notice or advice, it certainly would not be complying with the order for it would have no confidence and could have no confidence that the advice was received by the members.

PN65

In South Australia and the Northern Territory communication again is by mail for members. There are no fax stream facilities in that state and territory. In Western Australia the method of communication with postal and telecommunications branch is by mail and the same applies for both members and delegates. They can fax to some worksites and they do have some fax stream facilities. In Tasmania the communication with delegates and members is by mail and there are no fax stream facilities.

PN66

All of these things add up, your Honour, to this, that compliance with this order to get the relevant information out before tomorrow was impossible at 8 am this morning and it's impossible now and the order should be stayed, your Honour. In New South Wales the practice is to contact delegates and members by mail. There are some fax numbers for some delegates but there are no fax stream facilities. In Victoria mail or fax is the method of communicating with delegates and there are no fax stream facilities and there's over 500-odd workplaces.

PN67

THE SENIOR DEPUTY PRESIDENT: What's the arguable case of error?

PN68

MR IRVING: Sorry, your Honour?

PN69

THE SENIOR DEPUTY PRESIDENT: What's the arguable case of error? Were you coming to that?

PN70

MR IRVING: The arguable case of error is this, your Honour, an order that is made by the Commission under section 496 must be clear, must be precise and must be capable of being performed. Your Honour, if I could refer to you Thiess v CFMEU, which is reported at 127 IR 2 and 8, a decision of the Full Bench of the Commission - - -

PN71

THE SENIOR DEPUTY PRESIDENT: Have you got copies of it?

PN72

MR IRVING: I'm sorry, your Honour, I asked my instructor to pop downstairs to borrow this from the Commission library. I haven't had the opportunity unfortunately, your Honour, to - - -

PN73

THE SENIOR DEPUTY PRESIDENT: What's the reference again, Thiess?

PN74

MR IRVING: Thiess v CFMEU and it's a decision of Marsh SDP and Lacy SDP and Commissioner Larkin and it's 127 - - -

PN75

THE SENIOR DEPUTY PRESIDENT: Sorry, what is it, 127?

PN76

MR IRVING: 127 IR 2 and 8. It concerned an application under the then
section 127. There was a review of the relevant authorities, including decisions of the Federal Court of Australia relating to the need for specificity in orders under section 127. The Commission quoted with approval the following statements:

PN77

We are in accord with the common elements of otherwise divergent submissions put by both Mr Haylen and Mr Walton ...(reads)... to the enforcement functions of the court.

PN78

THE SENIOR DEPUTY PRESIDENT: What paragraph is that again?

PN79

MR IRVING: I'm reading from page 241 and indeed on page 239 through to 241 there is a quotation from a number of Federal Court authorities relating to the need for specificity and it's at 241, about point 9 of the page that their Honours adopt that observation. Their Honours also refer earlier on that page to a judgment of Marshall J in the MTIA case where his Honour quoted from a decision of Charles J, Justice of Appeal in Victoria in the Optus Network case and his Honour referred to:

PN80

The relevant principles relating to the wording of interlocutory injunctions are well settled, although their application ...(reads)... as far as possible be avoided in the language used.

PN81

His Honour Marshall J, after referring to some authorities then continues:

PN82

These observations of Charles JA were directed to the wording of interlocutory injunctions, nevertheless they are in my view ...(reads)... may expose a party to contempt proceedings.

PN83

Your Honour, in my submission, the need for clarity is equally applicable under section 496. There is also this principle which applies to all granting of injunctions and similar remedies, that one should not order a party to do the impossible or the practically impossible. That is what has occurred in this case. (iii) and (iv) impose obligations which the union cannot possibly fully meet and partially meeting them is nowhere near enough, your Honour, for even partially meeting them would be a breach, even. Even if they complied with 95 per cent of them, it would be a breach and it would expose the union to civil penalties but expose all of the officers and the 1000 delegates to civil penalties.

PN84

Your Honour, we would propose that you stay paragraphs (iii) and (iv) of the order of the Commission.

PN85

THE SENIOR DEPUTY PRESIDENT: 4(c)(iii) and (iv)?

PN86

MR IRVING: 4(c)(iii) and (iv) your Honour; that your Honour does so on the undertaking by the union that it continues to publish on its website until the expiration of the order the notice as set out in exhibit I3. Your Honour can be satisfied, given the steps taken by the employer in this matter to put the notice on noticeboards throughout the land in all of the workplaces that employees have become aware or have got a reasonable opportunity, the best opportunity available in the time to become aware of the terms of the order and the requirements that the Commission has imposed upon them.

PN87

The other matter which I should mention to your Honour is this, if I could return specifically to the terms of 4(c)(iii). It's an obligation on the CEPU et cetera to immediately advise the relevant CEPU delegates and the members that are in Australia Post workplaces - your Honour, I've pointed to the difficulties of our contacting people in the thousand workplaces and the thousand delegates and 20,000 members in a 24 hour period, but it's also nonsensical to the extent that it imposes obligations on delegates to advise all of the relevant delegates. It imposes obligations on delegates to advise all of the members so each and every delegate has an obligation to advise each and every member, the breach of which would lead to a civil penalty. Lest it be thought that providing the information ..... by the CEPU would be sufficient, these are separate obligations on each and every one of the officers and each and every one of the employees, et cetera.

PN88

Unless your Honour has any questions, they are my submissions.

PN89

THE SENIOR DEPUTY PRESIDENT: Do you seek that the order operate from 2 am on 27 June 2006 until the hearing of the appeal or until further order of the Commission?

PN90

MR IRVING: Sorry, I missed that, your Honour.

PN91

THE SENIOR DEPUTY PRESIDENT: Do you seek that the order, the stay order that you seek, operate from 2 am on 27 June 2006, which is the time the Commission's order was to come into effect?

PN92

MR IRVING: Yes, your Honour.

PN93

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Farouque.

PN94

MR FAROUQUE: Your Honour, I would respectfully adopt what my learned friend says on account of the stay. I simply wish to reiterate the point that my learned friend concluded with about the nonsensical nature of the operation of clause 4(c) in that it appears to in fact impose obligations upon each delegate to advise every other delegate, on Ms Doyle to advise employees of Australia Post not just, for instance, within the domain - or who are members of the Vic P and T branch or eligible to be assigned to the Vic P and T branch, but employees of Australia Post in different states. This is a nonsensical proposition and the order in its terms is not one, as my learned friend Mr Irving has pointed out, one which can reasonably be complied with. I respectfully adopt what my learned friend has said about the order and support the application for a stay.

PN95

THE SENIOR DEPUTY PRESIDENT: Mr McKenney.

PN96

MR MCKENNEY: The first matter, your Honour, I want to raise is because of the proceedings last evening, when the Commission was examining the terms of the draft order, all parties made submissions about the terms of those orders and the appropriateness and the matter that has been raised in this appeal was not raised by the CEPU last evening in terms of particularly clause 4(c)(iii) or (iv).

PN97

Your Honour, the terms of the order need to be understood in relation to the obligations and the terms of those obligations. If I can look at firstly 4(c)(iii) and (iv) the obligation was to take all steps necessary and available to ensure that employees complied with the order. My learned friend puts it very highly in the notice of appeal that these tasks are impossible to perform. The obligation, we say, your Honour, is that steps that are necessary and available need to be taken and that it isn't impossible to perform the obligation under that order.

PN98

Likewise, your Honour, in terms of the obligation to immediately advise relevant CEPU delegates and members, the order doesn't prescribe how that's done. It's open to the union to do it in a way that it sees appropriate to advise those people. There's no prescription as to how that can be achieved. In that regard, your Honour, it's important to understand that in the context of the enterprise agreement that exists in Australia Post that there are what I'll call protocols. There's a union delegates charter, for example, in Victoria, where union delegates are given access to phone and fax facilities.

PN99

Certainly my instructions are that there's no firewall, your Honour, that prevents union communications from being distributed at the workplace. The document also refers to - and I'm just advising the fact that it's a national delegates charter, it's not just confined to Victoria. Delegates have an Outlook account as part of their employment with Post and can use the email facility for union business in accordance with corporate guidelines so there are facilities available for the union to distribute material in the workplace and at the workplaces.

PN100

In relation to exhibits I1 and I2, they bear some analysis, your Honour, because exhibit I1 - I'll just give you the sequence of events. My instruction is that the appeal was certainly served on Australia Post at about 11.43 am, the notice of appeal. The letter that Ms Walsh received, which is exhibit I1, was received at 11.46 and the exhibit I2 was sent at 1.18 pm. If you look at exhibit I2, your Honour, you will see that there's really two points that we'll make about it. Firstly, the point that I've already made, we don't accept the CEPU doesn't have the resources to properly comply with the orders made by the Commission. That's in the second paragraph. Australia Post is aware that the CEPU has got a number of mechanisms, including fax stream ..... to communicate matters of concern to delegates and employees, et cetera.

PN101

Your Honour, reference is made to the fact that it has distributed the attached SIB. I can provide that SIB if you would like to see it, in relation to the order, but then importantly, your Honour, in the third last paragraph what hasn't been responded to is that in order to assist the CEPU to meet the requirement of the order, Australia Post is willing to distribute any letter or document the CEPU prepares, advising CEPU delegates and employees of the requirements of the order. That offer has not been taken up and it seems that's one way of dealing with this matter and disposing of this matter is to in fact ..... because the word "impossibility" to perform the order doesn't really bear the reality, your Honour, because the order has been distributed in certain ways. Exhibit I3, for example, is what the union has put on its website.

PN102

We're aware that the order is being distributed by the CEPU in other ways in the course of today, whether it's by phone or whether it's by facsimile and I've got details of that if it's necessary, your Honour, so it's clearly not something that can be put in terms of an impossibility to perform, or wholly impracticable, as my learned friend would have it.

PN103

Importantly, the case is put about the potential liabilities, civil penalties that may be imposed. It's clear on my instructions, your Honour, that the CEPU has been taking some steps to comply with the order. If there are difficulties in terms of its capacity to discharge that obligation, then Australia Post, in exhibit I2 has indicated a way in which it can assist in terms of communication of the order to all the workplaces.

PN104

My learned friend refers to two specific sites that were referred to in the evidence last night, being Gosford and City Street delivery centre and I accept what he says in relation to those workplaces being advised of the order, but importantly, your Honour, the obligation of course extends to all workplaces and what has been happening is that that's being endeavoured to be complied with. We haven't been asked, on my instructions, for the names and addresses of employees but the offer, if I can put it in those terms, is open, which is contained in exhibit I2 to deal with the matter.

PN105

The civil penalty issue that my learned friend raises, your Honour, it goes without saying, the substance of the order, if I can put it that way, is the prohibition of the taking of industrial action. The parts of the order that the appellant seeks to challenge, without downplaying their effect, I mean, they're not the substance of the order, they are the machinery provisions by which the order is communicated and the Commissioner, with respect, has been careful to draft the order, term the order in such a way that the obligation is capable of being discharged. When you ally that with the facilities that Australia Post has available, whether it be through the delegates charter or just through, what in my instructions are, is the common practice that communications about all sorts of things commonly occur from the union throughout the workplace. This is the nature of the organisation that's accepted by the employer and there's no reason why those established mechanisms can't be used on this occasion.

PN106

Turning to what my learned friend said about that case, I don't have the benefit of the exact words in front of me, but the Thiess v CFMEU case, it's not a case of the order being unambiguous or non-specific. As I apprehend my learned friend's complaint, is about whether it's capable of being performed. That's what's in the notice of appeal in ground 1, it's put as impossible to perform a wholly and practical ....., but that's entirely a different matter, your Honour, as to whether the order itself is characterised as unambiguous or non-specific. So I'm not sure how that assists my learned friend because the terms of the order are such that they are able to be carried out because they're clear on their face and they don't admit of the ambiguity or the non-specificity.

PN107

It's quite clear - in fact, I think my learned friend's complaint is they probably go too far and they impose two wide an obligation but that has to be tempered by the wording itself which is taking all steps necessary and available to ensure that employers comply with the order, immediately advising relevant delegates and members at all workplaces, again leaving it open as to how that's done but bearing in mind that it's open to be done through the mechanisms that I've referred to, or indeed, your Honour, through the way in which Australia Post proposes in
exhibit I2 which I've taken your Honour to.

PN108

For those reasons, our submission is that the part of the order 4(c)(iii) and (iv) don't admit of any error. They are capable of being discharged and I think the union itself has indicated ways in which it's attempting to discharge those obligations and clearly with some success on its own submission about some workplaces, be they Gosford or City Street or where they might be. Allied with the offer in exhibit I2, what the union has said today and what I've alerted your Honour to in terms of the mechanisms available, this does not pose the hurdle that my learned friend would have you believe is posed by the requirements of the order.

PN109

As to the balance of convenience aspect of whether a stay is granted, the circumstances are that the order has been in place since 2 am this morning and Australia Post has taken a number of steps that are referred to at exhibit I2, including the staff information bulletin. I can hand up to your Honour a copy of that staff information bulletin - it's actually a statement, I understand, your Honour, to exhibit I2. It should be a document that's signed by
Mr Rod McDonald ..... manager.

PN110

Steps have been taken by not only by the union but by Australia Post to ensure that the orders are communicated so that there is compliance and it would not be appropriate now to stop that process by staying that part of the order that relieves the obligation on the union to continue to do what it has, on my instructions, been doing in any event in an attempt to comply with the order because of the imminence of the national day of protest which, on the evidence that was presented to the Commission last night, is due to start at about 10 am tomorrow morning.

PN111

The other aspect of that, as far as the balance of convenience is concerned, your Honour, is that because of the diverse nature of the workforce within Australia Post and the different times of work and the different arrangements that they operate under, there's a need to continue to advise employees before they decide - if this is in fact what they're doing - decide whether they are going to attend for work or not tomorrow. So there's that urgency associated with that and that was some material that was addressed in front of Commissioner Foggo last night.

PN112

While, on my instructions, substantial progress has been made by in fact both parties, the process needs to continue to ensure that the order is brought to the attention of those that it applies to and given its after 4 pm the day before the national protest action is due to commence, that process shouldn't be stopped as far as the advice to employees, union delegates, et cetera are concerned.

PN113

Your Honour, what I might do, just so you have it in front of you, I do have copies of this union delegates' charter that provides that in a much clearer way than I've been able to put what those access to the communication facilities are, so I might hand that up to your Honour. There's a Victorian one and a national one, I'm told.

EXHIBIT #M1 DOCUMENT ENTITLED INTRODUCTION OF UNION DELEGATES CHARTER IN VICTORIA DATED 24/02/2004
EXHIBIT #M2 DOCUMENT ENTITLED EBA 6 NEGOTIATION UNION DELEGATES' CHARTER DATED 08/09/2004

PN114

MR MCKENNEY: Your Honour, I'll just take you to the relevant parts because, as I said, they're not short documents. In exhibit M1, if you were to go to the third page of that document you'll see what's described as the Mail and Networks Division Access to Communication Facilities and you'll see what union delegates are provided with in relation to that. Then at exhibit M2, your Honour, if you go to what is numbered page 4 you'll see in about the middle of the page the heading Access to Communication Facilities that's provided.

PN115

Your Honour, what's in exhibit I5.3 for example, the union has indicated that that is on its website and will remain on its website. If the union were to provide this on its letterhead to us, we would distribute it and while the order speaks for itself, objectively as to how it's complied with, we would consider that if they were to do that, that the obligations in (c)(iii) and (iv) would be met. One of the reasons for that, your Honour, is while that suggestion is made, perhaps a practical suggestion is that lots of our employees don't have email and web access so that's why there would be a need to try and circulate it in another way .....

PN116

For those reasons, your Honour, we do not think that it's appropriate for the Commission to stay that part of the order. If your Honour pleases.

PN117

THE SENIOR DEPUTY PRESIDENT: Mr Irving.

PN118

MR IRVING: Thank you, your Honour. A number of points I wish to address. Firstly, it's good to know that those two particular sites which were areas of concern have been dealt with. We've only got about 998 to go in the next
110 working minutes.

PN119

My friend observes that lots of employees don't have access to email and web access which highlights the impossibility for the union in complying with (iv). How the union is meant to advise each and every employee of the terms of this order, not even the effect, but the terms itself, it's completely beyond the ambit of what is achievable within the timeframe available and these are steps which are:

PN120

Take all steps necessary and available to ensure employees comply with this order, including but not limited to advising -

PN121

We must at least advise the employees of the terms of the order, employees without access to web and email and then we must go further, we must take all necessary steps available to ensure the employees comply, presumably with some conversation or further documentation. In addition to giving them the order we must take all necessary and available steps to ensure they comply with the order. It's simply too hard in too short a period of time and it always was. If it were a single worksite one could understand.

PN122

The employer says, "We can send out a notice, that will be compliance." Well, it won't because there are employees who are sick today, some of them are on holidays and some of them are overseas and they must be provided with the terms of the order. Some of them have gone home and they won't come back until 9 am tomorrow morning and they must be provided with a copy of the order.

PN123

If it were only to take all reasonable steps necessary and available to ensure employees complied with the order, then we would be dealing with a different proposition and indeed, one of the options available was to try and vary the order and that was a step which was taken until it was exhausted this morning and once it was exhausted an appeal is lodged for a stay. It was considered inappropriate to go another member of the Commission to seek the variation of the order that the Commissioner made. The stay was the only available option.

PN124

THE SENIOR DEPUTY PRESIDENT: Just on the notice of appeal, it says notice of appeal given against the decision of Commissioner Foggo. Was there actually a decision?

PN125

MR IRVING: No, your Honour, there wasn't.

PN126

THE SENIOR DEPUTY PRESIDENT: So it's against the order.

PN127

MR IRVING: The notice of appear was drafted by myself and to the extent that it's in error, it's my error and to the extent that it was done in a rush to try and get this filed as soon as possible, that's how it was done.

PN128

THE SENIOR DEPUTY PRESIDENT: Yes. So it's against the order.

PN129

MR IRVING: Yes.

PN130

THE SENIOR DEPUTY PRESIDENT: Is it against all of the order or just those clauses?

PN131

MR IRVING: It's against all of the order but it only seeks a stay in accordance with the final unnumbered paragraph.

PN132

My friend observes that the CEPU has been taking steps to comply with the order. We come to the Commission seeking a stay with clean hands. We've done what we can. There are people faxing out these documents and estimates have been made about what time tomorrow morning, working through the night, past midnight, we'll be able to fax out these documents to all of the workplaces. With some states with our fax streams, one needs to punch in the numbers individually of course. With hundreds of workplaces it's going to take hours and hours and hours and until the order is stayed, unfortunately the way it has been approached, continues to be done and the union will continue to attempt to comply, your Honour, as it has done to date.

PN133

My friend raises the protocols. If I could refer your Honour to exhibit M2, in exhibit M2 on page 4 there is a subheading titled Access to Communication Facilities which reads:

PN134

The extent of access arrangements to communications equipment such as phone, fax and email and photocopying facilities will be determined at the business unit level.

PN135

Therein lies a difficulty in the practical application that the union has found in access to these facilities. They're decided on a unit level to unit level basis and there is inconsistent application in its experience, some of it fine, some of it extremely difficult. There are some states where access has been reasonably easy, some states it's become a sore point. The problem is that by relying solely upon this fax mechanism as the means of communication, the union cannot be confident that it's going to comply with its obligations and trying is not enough for the union must at least advise each employee, et cetera, and must immediately advise the relevant delegates at members at all of the 1000-odd Australia Post workplaces.

PN136

As to problems with emails, I am instructed that delegates have far less difficulty sending emails than receiving them from the union. I am instructed by the acting secretary of the division that she has on occasions attempted to send emails repeatedly to delegates and found them unable to be received by those delegates. It's just not a reliable mechanism for those reasons and what's more, one is sending out hundreds of these things to 1000-odd delegates, some of whom don't have regular access to emails.

PN137

It is incorrect to say that the taking up of any offer would lead to compliance with the orders. It would take us a further step along the way in some cases but it wouldn't get us all the way for the bar that was set by the Commissioner was so high of contacting all of the delegates at all of the workplaces and all of the members at all of the workplaces, it simply cannot be done.

PN138

The balance of convenience strongly favours the granting of the stay, in my submission. The union has done what it can to comply. Having the obligation remain on the union simply means that absurd efforts will continue to be made which just could not succeed and as my friend notes, the union has tried and is taking steps to comply with the order and will continue to do so, your Honour, in accordance with the undertaking that's proffered by the organisation.

PN139

My friend mentioned that ambiguity was not specifically relied upon in the notice of appeal and it may be said that is true, although the notice of appeal was drafted very promptly and it does say such further grounds as the Commission sees fit and this obviously is on such ground. They are my submissions in this matter, your Honour.

PN140

THE SENIOR DEPUTY PRESIDENT: Yes, Mr McKenney.

PN141

MR MCKENNEY: Your Honour, I don't have a reply to Mr Irving's submissions. There's just two matters I want to inform the Commission about, one in relation to that access to communication facilities. I'm instructed, just so you understand, your Honour, that this access has not been in any way hindered in relation to this matter in terms of the communication of the return to the Commission's order.

PN142

Secondly, your Honour, I've just been handed a piece of paper in relation to what's occurring in Newcastle and it really is a response to the submission made about coming with clean hands. In fact, the advice I've just received is that a
Mr Richards had a call from a Mr Stig, area manager Newcastle to advise that Susan Sheather called the deputy at Hamilton DC to say the CEPU were appealing the decision and that she would not be advising the AURs not to attend the rally. For what it's worth, your Honour, they're my instructions on what's occurring so when Mr Irving talks about coming with clean hands that may not be the case in every instance as far as the union's efforts to comply with the order.

PN143

MR IRVING: Your Honour, just in response to that point, I obviously have no instructions about what the relevant people have said but the acting national secretary of the division has informed me that she will immediately ensure that the relevant people are contacted in relation to that Newcastle matter to be informed of the Commission's order and to ensure they're properly complied with.

PN144

THE SENIOR DEPUTY PRESIDENT: I would ask the parties to stay. I'll hand down a decision shortly.

<SHORT ADJOURNMENT [4.29PM]
<RESUMED [4.43PM]

PN145

THE SENIOR DEPUTY PRESIDENT: I have reached a decision in this matter. The CEPU has lodged a notice of appeal against an order of Commissioner Foggo of 26 June 2006, PR973179. The CEPU seeks a stay of clauses 4(c)(iii) and (iv) of that order. In this matter I am satisfied there is an arguable case with some reasonable prospect of success in respect of both the question of leave to appeal and the substantive merits of the appeal in respect of clauses 4(c)(iii) and (iv) of the Commission's order, having regard to the terms of those clauses and the submissions put to me about the impracticality of compliance with those clauses.

PN146

With respect to the balance of convenience, I am satisfied it weighs in favour of the granting of the stay order sought, given the notice in terms of exhibit I3 that the CEPU has undertaken to maintain on its website and the action Australia Post has taken to advise the relevant employees of Commissioner Foggo's order. Accordingly, I will issue the stay order sought in this matter. They stay order will come into force on and from 2 am on 27 June 2006 and remain in force until the hearing and determination of the appeal or until further order of the Commission. I now adjourn.

<ADJOURNED INDEFINITELY [4.45PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #I1 LETTER TO MS WALSH DATED 27/06/2006 PN44
EXHIBIT #I2 LETTER TO MS HERRINGTON DATED 27/06/2006 PN51
EXHIBIT #I3 NOTICE TO ALL AUSTRALIA POST CEPU DELEGATES AND MEMBERS PN56
EXHIBIT #M1 DOCUMENT ENTITLED INTRODUCTION OF UNION DELEGATES CHARTER IN VICTORIA DATED 24/02/2004 PN113
EXHIBIT #M2 DOCUMENT ENTITLED EBA 6 NEGOTIATION UNION DELEGATES' CHARTER DATED 08/09/2004 PN113